Dwight v. Elmira, Cortland & Northern Railroad

Majority

p. 789

Dwight v. Elmira, C. & N. R. Co.

(Supreme Court, General Term, Fourth Department.

February, 1890.)

Headnote

Appeal—Record—Certificate.

Where the papers on an appeal to the general term are not certified as required by Code Civil Froc. N. Y. § 1353, the appeal will not be determined.

Appeal from Tompkins county court.

p. 790

An action by Ira Dwight against the Elmira, Cortland & Northern Railroad Company to recover damages alleged to have been done to his farm by fire escaping from a locomotive of the defendant in July, 1886; the fire having spread to plaintiff’s land, and caused a destruction of growing grass, injury to the turf or sod, and injury and destruction of fruit-bearing apple and cherry trees. Judgment upon the report of a referee in favor of plaintiff for $503, and costs. Defendant appeals.

Argued before Hardin, P. J., and Martin and Merwin, JJ.

James Armstrong, for appellant. Raymond L. Smith, for respondent.

1. The case and exceptions before us contain no evidence that the referee has settled the case as required by rule 32. The appeal-book contains a printed form in respect to a settlement of the case, but the same is not signed by the referee. Rule 35 provides: “No case or exceptions to be annexed to the judgment roll shall hereafter be filed with the clerk of the court, unless the same is so ordered by the judge or referee who tried the cause. ”

2. The appeal papers do not contain a certificate of the county clerk, as required by section 1353 of the Code of Civil Procedure. The observance of 'the rule laid down in that section is regarded as important. Lewisohn v. Niedertwiesen, 40 Hun, 545 . In the case just cited the court observed: “ We refrain from any consideration of the merits, and send the case back to be properly certified. The observance of the duty imposed by section 1353 is regarded as extremely important. The object of the section is undoubtedly for the purpose of securing the presentation to the appellate court for the entire proceedings sought to be reviewed. Case sent back to be properly certified.” Case sent back for such action or proceeding as counsel may deem advisable. All concur.