Ann Reese, Respondent, v. Thomas Borse, as Receiver, etc., et al., Appellants

Ann Reese, Respondent, v. Thomas Borse, as Receiver, etc., et al., Appellants. (Argued March 20, 1883; decided March 30, 1883.) These were motions to dismiss appeals. The opinion, which is given in full, shows the grounds of the motion. “The attorney for the respondent makes a motion to dismiss the appeal of Boese on the ground that he has not served ‘ a proper case or appeal-book.’ “ It appears that upon the appeal of Boese a case was prepared and settled by the consent and acquiescence of the parties, and filed in the clerk’s office, and that that ease was used at the General Term. Even if the General Term, in considering the appeal of Boese, used other papers, it had no right to. The return to this court is properly certified according to section 1315 of the Code. If the plaintiff desired to have other papers or evidence contained in the cases, she should have proposed amendments to the case served on the part of Boese and procured their insertion in that way in the case. It is too late now for her to complain of the case as it appears before us. The motion against Boese must, therefore, be denied, with costs. “We must call attention to a defect which appears in the case as settled, of which the counsel for the respondent has taken no notice. Section 997 of the Code requires that a case ' must be settled and signed by the judge or referee before whom the action was tried. That very wholesome provision of the Code does not seem to have been complied with; at least it does not appear in the record returned to us that the case was settled and signed by the judge before whom the action was tried. But as the Supreme Court received and ■acted upon the papers in their apparently imperfect condition, they constitute the return to us, and we must receive them as sufficient. If the rule prescribed in section 997 had been complied with, the present dispute and controversy would probably not have arisen. “ A motion is also made to dismiss the appeal taken in this case by Raphael J. Moses on behalf of certain policy-holders, and also an appeal taken by Talcott H. Russell as receiver of the American Life and Trust Company, on the ground that the appellants have not served the undertakings required by section 1326 of the Code. “We find in the papers no denial of the neglect to serve the undertakings, and those appeals must, therefore, be dismissed unless they are perfected by the service of the proper undertakings within ten days after the service of this Order, with sureties who will justify according to the rules and practice of-the court, and each of such appellants also pay $10 costs of this motion.” Wm. II. Ingersoll for motion. Raphael J. Moses, Jr., and George M. Sanders, Jr., opposed. [MAJORITY — Earl, J.,] Earl, J., reads for denial of motion as to defendant Boese, and for dismissal of appeals taken by Raphael J.-Moses, Jr., on behalf of certain policy-holders, and by Talcott H. Russell as receiver of the American Trust Company, unless appeals are perfected as stated in opinion. All concur. Ordered accordingly.