Brainard v. New York and Harlem Railroad Co...

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RULES

OF THE

COURT OF APPEALS.

As Existing Jan. 22, 1875.

RULE I.

The Return.

When the appeal is from a judgment, the return of the clerk of the court below shall consist of certified copies of the notice of appeal and the judgment roll.

When the appeal is from such an order as is mentioned in the eleventh section of the Code of Procedure, the return shall consist of certified copies of the notice of appeal, the order appealed from, and the papers on which the court below acted in making the order.

RULE II.

Appellant to file Return - Effect of his Omission. The appellant shall cause the proper return to be made and filed with the clerk of the

court, within twenty days after the appeal shal be perfected. If he fail to do so, the respondent may, by notice in writing, require such return to be filed within ten days after service of the notice, and if the return be not filed in pursuance of such notice, the appellant shall be deemed to have waived the appeal: and on an affidavit proving that the appeal was perfected, and the service of such notice, and a certificate of the clerk that no return has been filed, 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.

(See Code, § 328.)

The court may relieve the appellant against a default for not complying with this rule, and will do so if an excuse be shown, and the appeal is brought in good faith. (Waterman v. Whitney, 7 How. 407.) If copies of all the requisite papers be not included in the return, the court may allow the appellant to supply the omission without dismissing the appeal. (Beecher v. Conradt, 11 How. 181.)

If an order dismissing the appeal for want of a return be regularly entered, the court will not re-instate the appeal unless the appellant shows a clear case of diligence, or an excusable default of the clerk, or that an unavoidable

accident has prevented filing the return, or obtaining an extension of the time to do so. (Spoore v. Fannan, 16 N. Y. 620.) Notwithstanding an appeal to this court, and return by the court below, the court below may amend the judgment. (Judson v. Gray, 17 How. 289.) This court has power to send a case to the court below for resettlement (Westcott v. Thompson, 16 N. Y. 613; Luysten v. Sniffin, 1 Barb. 428), even after argument (Rice v. Isham, 1 Keyes, 44, 47; Livingston v. Miller, 7 How. 219), and the court below has power to order a resettlement, and that the corrected case be returned to this court, with a recall of the former, or a request to correct it (Witbeck v. Waine, 8 How. 433; Luysten v. Sniffin, 3 id. 250); but will not ordinarily do so until the case is sent back by this court. (Bush v. Adams, 2 Abb. N. S. 118.) If the cause was tried in the court below before a referee, as the referee is not an officer of this court, but of the court below, a motion should be made in the latter court that the case be sent back to him for resettlement. (Westcott v. Thompson, 16 N. Y. 616.) This court has jurisdiction to dismiss an appeal, although no return has been filed. (Adams v. Fox, 27 N. Y. 640.)

On sending a remittitur down for correction, the case will be allowed to retain its original date of filing. (7 How. 219.)