Majority
p. 31Charles Lex Brooke, Rec'r, Pl'ff, v. The Tradesmen's National Bank, Def't. (Supreme Court, General Term, First Department, Filed March 17, 1893.)
Headnote
Appeal—Case.Exceptions ordered heard in the first instance at general term will not he heard by that court where no case or bill of exceptions has been made and settled containing the proceedings on the trial.
Exceptions to the dismissal of the complaint and to the denial of a motion for a new trial ordered to be heard in the first instance at the general term.
E. R. Leavitt and Charles W. Brooke, for pl'ff; C. E. Rushmore, for def't.
Upon an examination of the papers submitted upon this appeal, it is found that no case or bill of exceptions has been made or settled containing the proceedings upon the trial. All that the papers contain are the pleadings, a copy of the clerk’s minutes, and an order directing the exceptions to be heard, in the first instance, at the general term. It is true that the order contains certain recitals; but they are not in the form of a case or
p. 32
bill of exceptions, which it is necessary should be made in order to bring up the proceedings upon the trial upon this motion for a new trial. There is no appeal from this order, but a motion fora new trial because of exceptions taken upon the trial; and the proceedings upon the trial are not set out in a case or bill of exceptions, as required by the Code. The case should, therefore, be stricken from the calendar, in order that the parties may have the proper papers prepared.
"Van Brunt, P. J., O’Brien and Follétt, JJ., concur.