Hyperlawhypertext legal database Bonnefond v. De Russey 80 N.Y. Sup. Ct. 377

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Bonnefond v. De Russey

80 N.Y. Sup. Ct. 377 Court N.Y. Gen. Term English

Judges Hardin, P. J., and Martin, J., concurred.

Delivered by Merwin, J. :

Contents

Majority

p. 377
Francis Bonnefond, Respondent, v. Augusta C. De Russey and Others, Defendants; Emma H. De Russey, Appellant.

Headnote

Stipulation waiving the certification of a case — when a case will be sent back for settlement and certification.
A stipulation contained in a case signed by the attorneys for the respective parties, waiving- certification of the case and exceptions, and consenting that the same be filed, does not cure the defect arising from a failure to havfe the case and exceptions settled by the referee before whom the action was tried.
"Where a case on appeal contains nothing to show that the case and exceptions were settled by the judge or referee before whom the action was tried, and neither a certificate of the clerk under section 1353 of the Code, nor a stipulation of the attorneys under section 3301 thereof, the case should be sent back for settlement and certification.
Appeal by the defendant, Emma H. De Bussey, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 13th day of June, 1892, upon the report of a referee, with notice of an intention to bring up for review, on such appeal, the repoi't of the referee, his findings and his refusals to find.
Talcott do Meyer, for the appellant.
J. I. Foote, for the respondent.

The papers in this case include what purports to be a case and exceptions. There is, however, nothing to show that the case and exceptions were ever settled by the referee, as required by section 991 of the Code, or ordered to be filed as required by rule 35. 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 N. Y. St. Bepr. 250; McNish v. Bowers, 30 Hun, 214 .) Nor is there

p. 378
any certificate of the clerk under section 1353 of the Code, nor any stipulation of the attorneys under section 3301, as amended in 1882 and -1890. The case should be sent back for settlement and certification.

Hardin, P. J., and Martin, J., concurred.

Case sent back to be properly settled and certified.

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