Finley S. Wright v. The Mayor, etc., of New York.(New York Common Pleas, General Term,Headnote
Practice—As to preparation' and service op papers on appear.When the complaint was dismissed at the trial and the plaintiff’s exceptions were ordered to be heard in the first instance at the general term. Held, that it was the duty of the party excepting (in this case the plaintiff), to prepare the papers on appeal and to serve a copy on the defendant and respondent eight days before time of argument. On his failure to do so, his adversary was at liberty to move, on four days’ notice, that the cause be struck from the calendar, and that judgment be rendered in his, favor.
At the trial of this action the complaint was dismissed and the court ordered that the plaintiff’s exceptions should be heard in the first instance at the general term. The case was settled but not printed by the plaintiff and the defendant moved at the general term to dismiss the exceptions on the ground that the plaintiff had failed to serve defendants with copies of his appeal, and had unreasonably neglected to bring the exceptions to a hearing.
That no specific direction having been given at the trial as to who shall print and serve the case it was the duty of the defendants so to do. Citing Sperling v. Connor (2 Monthly L. Bul., 25, superior court, Sedgwick, J.). That the motion was not properly made at the general term, citing Carraher v. Carraher (33 Superior Ct. Rep., 503), and by rule eight of this court, this motion should be made at special term.
Morgan J. O'Brien, for the motion; Elliot Sandford, in opposition.
It was the duty of the party who excepted to the ruling of the court to bring that ruling before the general term for review. “ The exceptions must be heard upon a motion for a new trial, which must be decided by the general term.” Section 1000, Code Civ. Pro. The plaintiff ought to have prepared the case, as he excepted to the ruling that dismissed" the complaint. He has failed to prepare the case, and he must be deemed to have waived his right to prepare one. Rule, 33.
The respondent was regular in noticing the exceptions for hearing at the general term (section 1000). As it was the duty of the plaintiff to prepare the papers on appeal, so, also, it was his duty to serve a copy of the appeal papers.