People v. Flack — 9 N.Y.S. 27

Majority

p. 27

People v. Flack.

(Common Pleas of New York City and County, General Term.

January 13, 1890.)

Headnote

Motion to Dismiss Appeal—Pendency of Negotiations for Settlement.

The filing of notice of a motion to dismiss an appeal for failure to serve printed papers, ends, so far as the appeal is concerned, any negotiations for a settlement that may he pending; and the pendency of such negotiations cannot he given as an excuse for such failure on hearing of the motion.

Appeal from special term.

Motion to dismiss appeal.

Argued before Daly and Bischoff, JJ.

Wilder, Wilder & Lynch, for appellant. Wakeman & Campbell, for respondent.

The affidavit of relator’s attorney in opposition to the motion to dismiss excuses the failure to serve printed papers on the ground of negotiations for settlement still pending. But the notice to dismiss was served on the 3d inst., and the relator should have printed his papers, or come prepared to say when they could be ready for the argument. He does not do this, but merely says that he “does not wish to undergo the expense of the appeal, if the matters in difference can be settled amicably.” This wholly indefinite statement cannot be received as an answer to this motion. Whatever negotiations for settlement were pending, the service of notice to dismiss ended them, so far as this appeal is concerned. Without a written stipulation, we cannot hold that the respondent is estopped from enforcing his rights under the rules.