Domenico Giorgione, Appellant, v. Domenico Di Marsico, Respondent

Domenico Giorgione, Appellant, v. Domenico Di Marsico, Respondent. Fourth Department, January 14, 1926. Courts — City Court of Rochester, Civil Branch — motion to dismiss appeal to County Court for failure to file retiyrn — failure of City Court judge to make return criticized — order denying motion reversed unless return is filed within thirty days after service of order of Appellate Division. The practice of a judge of the City Court of Rochester, Civil Branch, in failing to make a return within thirty days as required by law, where an appeal has been taken to the County Court, and in this ease in failing to make the return for nearly a year after the trial and decision, is criticized by the Appellate Division. Defendant’s motion to dismiss the appeal to the County Court on the ground that the return has not been filed is granted, unless the return is filed within thirty days after service of a -copy of the order of the Appellate Division in this case. Appeal by the plaintiff, Domenico Giorgione, from an order of the Monroe County Court, entered in the office of the clerk of the county of Monroe on the 31st day of December, 1925, denying a motion to dismiss an appeal by the defendant from a judgment of the City Court of Rochester, Civil Branch. George D. Forsyth, for the appellant. George F. Slocum, for the respondent. [MAJORITY — Per Curiam.] Per Curiam. It was asserted upon the argument of this case that the practice of making returns upon appeals from the City Court of Rochester, Civil Branch, is in a deplorable condition. In making the order herein, the learned county judge took judicial notice of the clogged condition of the court owing to the delay in making such returns. In this case there has been a delay of nearly a year after the trial and decision of the issue by the City Court. The law requires the City Court judge to make and file a return within thirty days after the service of a notice of appeal. (See Justice Court Act, § 438; Rochester City Charter [Laws of 1907, chap. 755], § 522, added as § 524-a by Laws of 1920, chap. 434, renum. by Laws of 1921, chap. 525, as amd. by Laws of 1923, chap. 860.) The appellant is entirely justified in complaining about the delay. On the other hand, the respondent asserts that he has done all he could to secure a return on appeal, and that the failure to file the same is not his fault. The condition disclosed is a serious one and reflects upon the administration of justice. Steps should immediately be taken to correct existing conditions and assure a prompt return on appeals from the City Court. All concur. . Present — Hubbs, P. J., Clark, Davis, Sears and Taylor, JJ. Order reversed, with ten dollars costs and disbursements, and appeal from judgment of City Court dismissed, unless the defendant shall cause the return on appeal to be filed in the County Court within thirty days after service of a copy of this order, in which event the order so appealed from is aflfirmed, without costs.