Ingersoll v. Smith — 48 N.Y. Super. Ct. 522

Majority

p. 522

LORIN INGERSOLL, as Executor, &c., Appellant, v. ORILAN M. SMITH, Respondent.

Headnote

Settlement of case on appeal and amendments—when motion for, denied for laches—procedure in ease of death of judge before whom settlement was noticed—when case. Sc., deemed settled by lapse of time.

Before Freedman and Russell, JJ.

Decided February 6, 1882.

Appeal from an order denying a motion to settle a case and exceptions.

This action was tried in June, 1878, before the late Judge Saneord and a jury. Judgment was directed in favor of the defendant; it was entered July 10, 1878 ; an appeal was at once taken; a case was made and served; amendments were proposed, and they were noticed for settlement August 20,1878; Judge Saneord was not in attendance on that day, and it is alleged by the appellant that he never again acted in his official capacity. The fact seems to be that Judge Sanford did hold court for a short time in April, 1879. The appellant took no further steps, either before Judge ■Saneord or any other judge, to have the case settled,

p. 523

until after Judge Sanford’s death, in October, 1881, when this motion was made.

A. B. Cruikshank, for appellant.

T. M. Wyatt, for respondent.

The court at General Term held :

.“We think think the motion was properly denied on the ground of laches. The. Code (§ 997) permits a party to have a case and exceptions settled, under the direction of the court, in case- of the disability as well as the death of a judge. The appellant waited until long after it was a matter of public notoriety that Judge Sanford would never be able again to administer his judicial functions. Under rule 33, if a party omits within the time limited, to notice the settlement of a case before a justice after amendments are proposed, he is deemed to have agreed to the amendments as proposed. This case was therefore settled by lapse of time (Whiting v. Kimball, 6 Bos. 690). The appellant, therefore, may not have his case settled by a judge, but may file the case and exceptions so settled by lapse of time, and pursue his appeal, subject to any rights which the respondent may have to move at a general term to dismiss the appeal.”

Opinion, by Horace Russell, J.; Freedman, J., concurred.

Order affirmed, with costs.