Opinion
March 27, 1929.
Appeal from Supreme Court of Erie County.
August Becker, for the appellant.
Norman C. Hise, for the respondent.
The motion to dismiss the appeal from the judgment is denied upon the ground that the time to serve a proposed case and exceptions has not expired within the meaning of the provisions of the 4th paragraph of rule 230 of the Rules of Civil Practice. A motion for a new trial was made but was not decided until two days after the motion papers now before us were served.
Some confusion seems to exist in the minds of attorneys as to the construction to be given to rule 230 of the Rules of Civil Practice, and especially its 4th paragraph. We construe this paragraph (in connection with the 1st paragraph) as though the language were as follows: "Whenever it shall be necessary to make a case or a bill of exceptions, the same shall be made and a copy thereof served on the opposite party within the following times * * *: (1) If the trial was before a jury and a motion is made for a new trial and not decided at the time of the trial, within thirty days after notice of the entry of the order on such motion, or (2) If the trial was before a jury and a motion for a new trial is not made, or a motion for a new trial is made and decided at the time of the trial, within thirty days after service of a copy of the judgment and notice of its entry."
Where a case and exceptions is a prerequisite to the bringing on of an appeal for argument, it is obvious that no motion to dismiss can be made while the period for making a proposed case has not expired.
All concur. Present — SEARS, P.J., CROUCH, TAYLOR, EDGCOMB and CROSBY, JJ.
Motion to dismiss appeal denied.