ADAMS against BUSH

ADAMS against BUSH. [No. 3.] Supreme Court, Fourth District; General Term, May, 1865. Amendment of Case. After an appeal has been taken to the court of appeals, and a case made and returned to the clerk of the appellate court, the court below will not entertain a motion to correct the case. The cause must be sent back for the purpose to enable them to do so. • Motion to correct a case made for the purpose of an appeal. After the decisions in this cause immediately hereinabove reported, the plaintiff appealed to the court at general term from the order made by Hr. Justice Bocees, by which his renewed motion for a new trial was denied ; and at the general term the court directed the appeal to be dismissed. Ho written opinion was delivered at the time of the dismissal of the appeal ; and upon inquiry of the judges as to the grounds of their decision, a controversy arose between the parties to the cause, ■ as to whether it was dismissed on the ground that the order was not appealable, or on the ground that the papers were not all before the court. The defendant’s counsel insisted that it was because of the omission from the appeal papers of the printed case used before the court of appeals on the former appeal, the remittitur from that court, and the opinion of the chief judge of that court. The plaintiff insisted that there had been no such omission ; and moreover that no objection was taken to moving the appeal on this ground; or that if any was taken it was done by communication to the court in his absence. When, therefore, the plaintiff made up a “ case ” for an appeal to the court of appeals from the order dismissing the appeal, and included in it the papers above mentioned, the defendant’s attorney moved.the court, at general term, to strike out these papers. J. Genter, for the motion. Henry C. Adams, plaintiff in person, opposed. I. It was the duty of one party as much as the other to bring the papers before the appellate court (Code of 1863, § 328). Those papers are “ a certified copy of the order appealed from, and the papers ” (i. e., the original papers used at special term). But,if they were not before the appellate court,. then the court had no power to act in the case at all, under counsel’s objection against moving it, and the court should have sent the case over the term. The court had no right to receive the papers, if Hr. Genter’s objection to moving the case was well founded ; and, after receiving those papers, and finding that objection well taken, the court should have there stopped. The court had ' no right to hold the case, and dismiss the appeal under Hr. Genter’s objection to plaintiff’s moving the case, which was secretly handed up. A dismissal of the appeal was not asked or called for by that paper, .nor otherwise. II. There is no such thing as dismissing an appeal in such a case, for defects in the papers, nor for any cause. The reason for this is that this was a non-enumerated motion, heard at special term (Rule 40), and there is no rule providing for the dismissal of appeals in that class of cases. The only rules providing for the dismissal of appeals, are rules 42 and 43, and they apply exclusively to enumerated motions, and a dismissal can he had only on a regular application therefor, upon notice, and upon proper cause shown. III. As to the appeal having been dismissed on the ground of defect of papers, this is an eleventh hour device to break the plaintiff down in his case. There was no such ground taken by the court. Potter, P. J., says, upon the heels of the term, upon his recollection, then undoubtedly fresh, that the appeal was dismissed upon the ground that “ it was regarded as not an appealable order,” and thinks “ Justice Bocees’ views were adopted, and that the opinion was unanimous,”—and the papers upon which the court arrived at that conclusion are now returned to the court of appeals, and this court has no right to strike ourt a line of the papers upon which tljpy acted on that appeal, upon this pretence of “ defect of papers.” [MAJORITY — By the Court.] By the Court. The defendants should have made their motion to correct the ease, in the court of appeals, as the cause is now in that court upon the appeal; and no. action which may be taken by this court can be of any service to the defendants unless the case is sent back for the consideration of this court. Motion denied. In the court of appeals the respondent moved at the June term, 1865, to dismiss the appeal: 1st. Upon the ground that the order appealed from is not appealable. 2nd. If the said order shall be deemed appealable, then, that this court send the case back to the supreme court to correct the files of their court, and the errors complained of by defendants in this motion, by striking out of the case the papers and matters, which it was alleged were not before the general term, that were before the special term, held by Mr. Justice Bockes. The court held the order not appealable; ruling that they could not go behind the statement of one of the members of the court below, which was read by the respondent, that the order of dismissal was by reason of defect of papers. Accordingly, the appeal to the court of appeals was dismissed.