The return should only contain the case on the last trial, if more than one has been had. (Ferguson v. Ferguson, 7 How. 217; Bissel v. Hamlin, 20 N. Y. 520; Wilcox v. Hawley, 31 id. 648.) And such matter will be stricken out. (Wilcox v. Hawley, 31 N. Y. 648.) If a defective return be filed, it would seem that the respondent cannot enter an order dismissing the appeal under this rule, but should apply by motion for a correction of the return. (Bowers v. Talmadge, 23 N. Y. 166; 20 How. 516.) It is doubtful whether an order dismissing the appeal can be entered after the return is actually filed, although it was not filed within twenty days after the appeal was perfected. He cannot do so if he has noticed the cause for argument, or taken any step therein, after the filing. (Beecher v. Conradt, 11 How. 181.) RULE III. Further Return may be Ordered. If the return made by the clerk of the court below shall be defective, either party may, on an affidavit, specifying the defect, apply to one of the judges of this court for an order that the clerk make a further return without delay. (See Code, 328.) RULE IV. Attorneys and Guardians Below to Continue to Act. The attorneys and guardians ad litem of the respective parties in the court below shall be deemed the attorneys and guardians of the same parties respectively, in this court, until others shall be retained or appointed, and notice thereof shall be served upon the adverse party. The appellant may appeal by a new attorney. (Pratt v. Allen, 19 How. 456; McLaren v. Charrer, 5 Paige, 530; Cook v. Dickerson, 1 Duer, 679, 687; Thorp v. Fowler, 5 Cow. 446.) RULE V. Appellant to Make a Case-Its Form. In all calendar causes a case shall be made by the appellant, which shall consist of a copy of the return of the clerk, and the reasons of the court below for its judgment, or an affidavit that the same cannot be procured. If the case is voluminous, an index to the pleadings, exhibits, depositions and other principal matters shall be added. Every opinion in the cause at special term, as well as at general term, relating to the questions involved in the appeal, is included by the foregoing provision. If the cause was tried before a referee, a copy of his opinion, if he wrote one, must be furnished. (Warren v. Warren, 22 How. 142.) RULE VI. Cases and Points to be Printed - Mode of Printing. All cases and points, and all other papers furnished to the court in calendar causes, shall be printed on white writing paper, with a margin on the outer edge of the leaf not less than one and a half inch wide. The printed page, exclusive of any marginal note or reference, shall be seven inches long and three and a half inches wide. The folio, numbering from the commencement to the end of the case, shall be printed on the outer margin of the page. Small pica, solid, is the smallest letter and most compact mode of composition which is allowed. No charge for printing the papers mentioned in this rule shall be allowed as a disbursement in a cause, unless the requirements of the preceding sentence shall be shown, by affidavit, to have been complied with in all papers printed. RULE VII. Appellant to Serve Copies of Case- Effect of his Default. Within forty days after the appeal is perfected, the appellant shall serve three printed copies of the case upon the attorney of the adverse party. If he fail to do so, the respondent may, by notice in writing, require the service of such copies within ten days after service of the notice, and if the copies be not served in pursuance of such notice, the appellant shall be deemed to have waived the ap pea; and on an affidavit proving the default and the service of such notice, the respondent may enter an order with the Clerk dismissing the appeal for want of prosecution, with costs and the court below may thereupon proceed as though there had been no appeal. If the appellant serve an imperfect case, the respondent cannot enter an order dismissing the appeal under this rule. He should apply by motion for a correction of the case. (Bowers v. Talmadge, 23 N. Y. 166; 20 How. 516.) RULE VIII. Copies of Cases for Judges, and Copies of Points for the Court and Adverse Party. At the commencement of the argument the appellant shall furnish a printed copy of the case to each of the Judges, and shall deliver nine other copies to the Clerk. Each party shall, at the same time, furnish to each of the Judges a printed copy of the points on which he intends to rely, with a reference to the authorities which he intends to cite; and shall deliver nine other copies to the Clerk, and three copies to the counsel of the adverse party. In all appeals to this court heard as motions under subdivision four (4) of section eleven (11) of the Code of Procedure, as amended in 1867, the appellant shall furnish the court with the number of printed copies, required by this rule in calendar causes, of all papers used in the court below, upon which the order appealed from was founded; and each party is also required to furnish the court with printed points, as in calendar causes. The cases, points and calendars delivered to the Clerk shall be disposed of as follows: One copy of each shall be kept by the Clerk, with the records of the court. Two copies thereof shall be deposited in the State Library, one copy shall be deposited in each branch of the library of the Court of Appeals, one copy shall be deposited in the library of the New York Law Institute, one copy shall be deposited in the Law Library of Brooklyn, and one copy shall be delivered to the reporter. Previous to the amendment of subdivision 4 of section 11 of the Code, in 1870, there were two subdivisions 4; one passed in 1865 (Laws 1865, p. 1280), and one in 1867 (Laws 1867, vol. ii, p. 1920), allowing different classes of appeals to be noticed and moved as motions. The Legislature of 1867 does not seem to have been aware that there was a subdivision 4 to the section already in existence. Both of these subdivisions 4 were in force. (The People v. Town Auditors, 1 Alb. Law. Jour. 60.) The language of the amendment of 1870 seems to apply to the subdivision passed in 1867, without refer |