Creshull v. Mallen — 5 N.Y. St. Rep. 631

Majority

p. 631

Sarah J. Creshull, Appl’t, v. Catherine Mallen, Impld., etc., Resp’t.

(Court of Appeals,

Filed January 25, 1887.)

Headnote

Appeal — Record oh — Stipulation as to.

Upon an appeal to the general term of the city court of Brooklyn from an order made at the special term of that court granting a motion made by the defendant for a new taxation of costs, a memorandum containing an extrac't from the judgment and the defendant’s costs as taxed by the clerk was endorsed by the attorneys for the parties “ approved and assented to as and for papers on appeal.” This order having been affirmed by the general term it was further appealed to the court of appeals. The papers referred to in the notice of appeal and in the special term order were not before the court of appeals. Held, the appellant being the same as in the court below the me

p. 632

morandum might he presumed to contain all considered by her counsel as material to present the question intended to he raised, and that showing nothing which alone or with the other matter in the appeal book made the appellant’s objection intelligible, the order appealed from should be affirmed,

P. V. R. Stanton, for appl’t; Morris Pearsall, for resp’t.

-On the twenty-first of July, 1886, the plaintiff gave notice to the clerk of the city court of Brooklyn, and to Messrs. Morris & Pearsall, attorneys for the defendant, that she appealed to the court of appeals from an order of the general term of the city court, winch affirmed an order of the special term of that court, granting a motion made by the defendant for a new taxation of costs. It was made, as the order recites, upon all the papers in the action, and directed that the defendant be allowed, in addition to her costs as taxed by the clerk, |30 for a trial fee, and $10-additional because the trial occupied more than two days. The plaintiff appealed to the general term, where the order was affirmed.

The papers referred to in the notice and in the special-term order as papers in the case are hot before us. It appears, however, as claimed by the appellant, that on the twenty-sixth of May, 1886, before the hearing of the appeal at general term, a brief memorandum, containing an extract from the judgment, and the defendant’s costs as taxed by the clerk, was indorsed by the attorneys for the respective parties in these words: “ Approved and assented to as and for papers on appeal.” The appellant here was the appellant in the court below. The memorandum may be presumed, therefore, to contain all that.in the opinion of her counsel was material to present the question intended to be raised. It shows nothing which,-standing by itself, or which with reference to any other matter on the appeal-book, makes the objection of the appellant- intelligible. We discover no reason why the order appealed from should not be affirmed.

Order affirmed, with costs of appeal in this court, to be paid by the appellant to the respondent’s attorneys.

All concur.