Opinion
May 23, 1913.
Edgar Whitlock, for the motion.
William B. Dressler, opposed.
Present — INGRAHAM, P.J., CLARKE, SCOTT, DOWLING and HOTCHKISS, JJ.
The attorney for the appellant entirely misapprehends the practice. Where the appellant is in default in the service of the printed papers this court has jurisdiction to dismiss the appeal. A motion to open a default in serving a case on appeal is a motion that should be heard at Special Term and, therefore, a motion made before the Appellate Division to open a default in serving a case on appeal will not be considered. Where a motion to dismiss an appeal is before this court it is our practice to grant that motion unless the appellant procures the papers to be printed and filed and certified as prescribed by the General Rules of Practice within the time specified. The motion made to open the appellant's default was denied because the motion should have been made at Special Term. The respondent having now made a motion to dismiss this appeal and the appellant being in default, the appeal should be dismissed unless some excuse is disclosed in the answering affidavit why the papers have not been filed as required by the General Rules of Practice. (See rule 41.) Judgment in this case was entered on December sixth and no case has yet been served nor have the printed papers on the appeal been filed.
The motion will be granted, with ten dollars costs, unless the appellant pays ten dollars costs and has the printed papers and points filed on or before the eleventh of June.
Motion granted unless appellant complies with terms stated in order.