Booneford v. De Russy — 55 N.Y. St. Rep. 918

Majority

p. 918

Francis Bonneford, Resp’t, v. Emma H. De Russy, Impl’d, App’lt.

(Supreme Court, General Term, Fourth Department,

Filed December 8, 1893.)

Headnote

Appeal—Case.

Where on appeal to the general term, there is nothing to show on the

p. 919

papers that the case was ever settled by the referee, or ordered to be filed, although a stipulation is attached made by the attorneys for the respective parties that certification be waived, and consent to policy given, and there is no certificate of the clerk or stipulation of the attorney under § 3301 of the Code, the case should be sent back for settlement and certification.

Appeal from a judgment entered in Delaware county, June 13, 1892, upon the report of a referee in favor of plaintiff for $2,708.23, besides costs.

Talcott & Meyer, for app’lt; J. I. Foote, for resp’t.

The papers in this case include w'hat purports to be a case of exceptions. There is, however, nothing to show that the case and exceptions were ever settled by the referee as required by § 997 of the Code, or ordered to be filed as required by Rule •85. There is a stipulation over the names of the attorneys for the respective parties stating that “ certification of the above and foregoing case and exceptions is hereby waived, and it is consented that the same be filed.” This does not cure the defect The provision that the case should be settled by the judge or referee who tried the cause, is a wholesome one. Reese v. Boese, 92 N. Y., 632 , and should be enforced. Dwight v. Elmira C. & N. R. R. Co., 29 St. Rep., 250 ; McNish v. Bowers, 30 Hun, 214 . Nor is there any certificate of the clerk under § 1353 of the Code, nor any stipulation of the attorneys under § 3301 as amended in 1882 •and 1890. The case should be sent back for settlement and certification.

Case sent back to be properly settled and certified.

Hardin, P. J., and Martin, J., concur.