(76 Hun, 605.)

#### SMITH v. INGHAM UNIVERSITY.

(Supreme Oom't, General Term, Fifth Department.

April 12, 1894.)

Appeal—Dismissal—Failure to Serve Case and Exceptions.

An appeal will not be dismissed for failure to serve a case and exceptions within the time prescribed, but the only effect of such failure is to leave complainant to argue his appeal on the judgment roll.

Action by Walter H. Smith, as trustee, against Ingham University. There was a judgment in favor of plaintiff, and defendant appeals. Plaintiff moves to strike the cause from the calendar, and for affirmance. Denied.

Argued before DWIGHT, P. J., and LEWIS, BRADLEY, and HAIGHT, JJ.

Raines Bros., for appellant.

Bowen & Washburn, for respondent.

HAIGHT, J.

So much confusion exists with reference to the disposing of appeals in this court, on account of the delay in the *221■prosecution thereof, that we have thought it wise to restate the .practice.

An appeal cannot be dismissed on account of the failure of the appellant to serve a case and exceptions within the time prescribed therefor. The only effect of such omission is to leave the party to argue his appeal on the judgment roll. Schwarz v. Weber, 103 N. Y. 658, 8 N. E. 728; Berger v. Dubernet, 7 Rob. (N. Y.) 1; Brown v. Hardie, 5 Rob. (N. Y.) 678; Rankin v. Pine, 4 Abb. Pr. 309.

Buie 33 provides that:

“If the party shall omit to make a case within the time above limited, he shall be deemed to have waived his right thereto; and when a case is made, and the parties shall omit, within the several times above limited, the one party to propose amendments, and the other to notify an appearance before the justice, surrogate or referee, they shall respectively be deemed, the former to have agreed to the case as proposed, and the latter to have agreed to the amendments as proposed.”

Buie 35 provides that:

“Where a party makes a case or exceptions, he shall procure the same to be filed within ten days after the same shall be settled, signed and ordered to be filed, or it shall be deemed abandoned unless the time is extended by order. * * * And on filing affidavit that such case or exceptions has not been filed and showing the time of the settlement thereof, and the date of such order, and that more than ten days have elapsed from the time of such order, or from the expiration of the time to which it was extended, an order, of course, may be entered declaring the same abandoned and the .party may proceed as if no case or exceptions had been made.”

It will be observed that under rule 33, if the party shall omit to make a case within the time limited, he shall be deemed to have waived his right thereto, and that under rule 35, if he omit to file the case, when settled, within the time limited, he shall be ■deemed to have abandoned it. As to the former, the rule does not point out how the waiver is to be determined, but, in the latter, the rule specifically provides how the question of abandonment ■shall be established. No reason is apparent why the practice provided for the determination of the question in one case should not prevail in the other. The courts have consequently adopted •the practice prescribed by rule 35, in determining the question of waiver under rule 33. Carraher v. Carraher, 42 How. Pr. 458; Phelps v. Swan, 2 Sweeny, 696; Ward v. Railroad Co., Id. 701; Anon. 36 How. Pr. 366; Insurance Co. v. Dwight, 1 Hilt. 50.

Bule 40 provides that:

“Enumerated motions shall be noticed for the first day of the term by either party on a notice of eight days. * * * The party whose duty it is ■to furnish the papers shall serve a copy on the opposite party, except upon trial of issues of law, at least eight days before the time for which the latter may be noticed for argument. If the party whose duty it is to furnish the papers shall neglect to do so, the opposite party shall be entitled to move, on affidavit and on four days’ notice of motion, that the cause be struck from the calendar (whichever party may have noticed it for argument) and that judgment be rendered in his favor.”

The practice, therefore, is, if the appellant fails to serve his •case, or have it settled, signed, or filed, within the time prescribed *222by the rules, the respondent may apply, on notice, to the special term, to have the case declared waived or abandoned in accordance with the provisions of the rules 33 and 35. If the special term grants the motion, the appellant may still have his appeal heard upon the judgment roll, by causing the papers to be printed and served in accordance with the provisions of rule 40. After the entry of an order declaring the case and exceptions waived or abandoned, the respondent may notice the case for argument, and place it upon the calendar; and, if the appellant neglects to serve upon the Respondent the papers upon which the appeal is to-be heard within the time prescribed, the respondent may move on affidavit, and on four days’ notice of motion, that the case be struck from the calendar, and that judgment be rendered in his favor. In the city of New York it has been the practice to require the respondent to apply to the court, or a judge thereof, for an order to-put the case on the calendar, in accordance with a special rule to that effect existing in such city. But we have no such rule in this department. We have, however, a special rule which provides that:

“In every case which is to be brought on for argument upon a case or a case containing exceptions, the note of issue filed with the clerk shall be accompanied by an affidavit stating that the case has been settled, signed' and filed, and specifying the time and place of such filing; otherwise the case shall not be put upon the calendar.”

This rule has reference only to causes which are to be heard upon a case, or a case containing exceptions, and has no application to an appeal which is to be heard upon the judgment roll alone. After an order has been entered declaring a case, or a case containing exceptions, waived or abandoned, the cause may be placed upon the calendar, and no affidavit is required to accompany the note of issue. The special term has power to excuse and open defaults, and to extend the time to make and serve case or case containing exceptions, and all motions of this character should be made in that court. The motion should be denied, but, in this-case, without costs to either party. All concur.