Anker v. Smith — 85 N.Y.S. 1062

Majority

p. 1062

ANKER v. SMITH.

(Supreme Court, Appellate Term.

January 7, 1904.)

Headnote

H. Municipal Courts—Appeal.

Where the return of the settlement of a case on appeal from a Judgment of the Municipal Court shows that judgment was rendered by R., Justice, and that notice of settlement was returnable before Judge H., Who tried the case, and the return appears to be indorsed by Judge R.

p. 1063

with his initials, the appeal will be stricken from the calendar, under Laws 1902, p. 1581, c. 580, § 318, requiring that the notice of settlement shall be made before the judge who tried the case, and that he shall indorse the return.

Appeal from Municipal Court, Borough of Manhattan, Fourth District.

Action by William Anker against Hyman Smith. From a judgment for plaintiff, defendant appeals. Appeal stricken from calendar.

Argued before FREEDMAN, P. J., and GIEDERSEEEVE and GREENBAUM, JJ.

Charles S. Rosenthal, for appellant.

Aaronstamin & Chorosh, for respondent.

The return in this case states that judgment was rendered by “Hon. George F. Roesch, Justice”; that notice of settlement of the case on appeal is returnable before Judge Hoffman. What purports to be the transcript of the minutes of the trial shows that the trial was had before Judge Hoffman, and the return appears to be indorsed by Judge Roesch with his initials. It is apparent that there has been no settlement of the case on appeal, or indorsement of the return, as required by section 318 of the Municipal Court act (Laws 1902, p. 1581, c. 580), and nothing is legally presented to this court for review.

The appellant may take such steps as he may be advised to insure the presentation of a proper return, and meanwhile the appeal will be stricken from the calendar.