Opinion
December Term, 1896.
Judgment and order affirmed, with costs, unless within thirty days appellant causes the case to be signed and settled; or, if such has been done, the record to be so amended as to show the fact, and he pay the respondent ten dollars costs and disbursements of this appeal, in which case the cause may be reargued or submitted. —
Rule 35, General Rules of Practice, requires the appellant's attorney to procure the case as settled to be signed by the judge, otherwise the case is to be deemed abandoned. The record before us does not show that the case was ever settled or signed by the trial judge. As the respondent raises the objection, we are of opinion that the case cannot be considered on this appeal. But we think that the appeal cannot be dismissed for this reason, as intimated in Rothschild v. Rio Grande Western Ry. Co. ( 9 App. Div. 406), for the appellant may appeal on the judgment roll alone, and if any fatal error appears on that record, he would be entitled to a reversal of the judgment appealed from. No error appears on the face of the judgment roll before us, and it follows that should we now decide this appeal, the judgment must be affirmed. But it is plain from the brief and argument that the appellant relies solely on errors claimed to have been committed on the trial, and it may be that the case has been settled and signed, and the only defect is the failure of the record to show such fact. We think, therefore, that the appellant should have an opportunity to correct his error. The judgment must be affirmed, with costs, unless within thirty days the appellant causes the case to be signed and settled; or, if such has been done, he cause the record to be amended so as to show the fact, and he pay the respondent ten dollars costs and disbursements of this appeal, in which case the cause may be reargued or submitted. All concurred.