Mary Sweeny and John L. Jordan, as Administrators, etc., of Dennis Sweeny, Deceased, Respondents, v. L. Laflin Kellogg, Appellant

Mary Sweeny and John L. Jordan, as Administrators, etc., of Dennis Sweeny, Deceased, Respondents, v. L. Laflin Kellogg, Appellant. Notice of trial — it should not le inserted in a judgment roll—proper procedure to ham it inserted in a case on appeal. Notices of trial form no part of the judgment foil, and whenever included therein they should be stricken Out if objection is made thereto. If the respondents, upon an appeal from a judgment, deem it important that the notices of trial shall be printed in the case, and' the appellant does not include them in his proposed case, the respondent’s remedy is by proposing an amendment to that effect to the case. Appeal by the defendant, L. Laflin Kellogg;, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of May, 1904, denying the defendant’s motion for leave to •amend the judgment roll in the above-entitled action by striking therefrom two notices of trial on the part of the plaintiffs and two notices of trial on the part of the defendant. Franklin Fevins, for the appellant. William R. Conklin, for the respondents. [MAJORITY — McLaughlin, J.:] McLaughlin, J.: This appeal is from an order denying defendant’s motion to amend the judgment roll by striking therefrom certain notices-of trial. 'We think the motion should have been granted. Notices of trial are no part of the judgment roll, and whenever included therein and complaint is made they should be stricken out. (Dexter v. JDusiin, Y0 Hun, 515.) Section 123Y of the Code of Civil Procedure provides what papers shall constitute the judgment roll, and the notices of trial are not among the papers specified. If the respondents deem it of importance that the notices of trial should be printed in the case on appeal, then, unless the appellant includes them in his proposed case, the respondents can ask, by way of a proposed amendment thereto, that they be included therein. The order appealed from, therefore, must be reversed, with ten dollars costs and disbursements, and the motion granted, with ten -dollars costs. Vah Brunt, P. J., Patterson, O’Brien and Hatch, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.