Majority
p. 242WITHERBEE v. TAFT. (Supreme Court, Appellate Division, Third Department. January 23, 1900.) Argued before PARKER, P. J., and HERRICK, MERWEST, SMITH, and KELLOGG, JJ. „ ■
Headnote
Appeal—Failure to Settle Case.Where the case on appeal was not settled by the trial justice, or ordered to be filed, it will be sent back for completion.
Appeal from trial term.
Action by Richard M. Witherbee against Andrew J. Taft. From a judgment for plaintiff, defendant appeals. Case sent back for settlement and certification.
O. A. Dennis, for appellant.
J. Sanford Potter, for respondent.
We are called upon in this case to consider the evidence given before the trial court. There is, however, no proof before us that a case containing the evidence has ever been settled by the trial justice or ordered to be filed. The return filed in this court shows no such settlement. The printed papers handed up purport to contain a case and exceptions, but they do not appear to have been settled or signed by the trial justice, as required by the rules and practice of the court. . Evidently it is not the object of either party to have the appeal disposed of on the judgment roll alone.
Case sent back for proper settlement and certification.