
    In the Matter of Pier (Old) The City of New York v. Harlem River and Portchester Railroad Company.
    No. 51.
    First Department,
    June 28, 1912.
    Appeal — section 988 of the New York city charter construed — dismissal for failure to prosecute.
    The provision of section 988 of the New York city charter that “ an appeal taken but not prosecuted within six months after the filing of the notice of the appeal, unless the time within which to prosecute the same shall have been extended by the court, shall be deemed to have been abandoned, and no agreement between the parties extending the time within which the said appeals may be prosecuted shall vary the provisions hereof,” is mandatory.
    An appeal pending more than two and a half years should be dismissed where the respondent has failed to consent to the. settlement of the papers upon which the appeal is to be heard.
    A mere filing of the notice of appeal is not a sufficient prosecution thereof.
    Motion to dismiss an appeal or to declare the same abandoned.
    
      Archibald R. Watson, Corporation Counsel, for the motion.
    
      Benjamin Trapnell, opposed.
   Per Curiam:

By section 988 of the charter (Laws of 1901, chap. 466, as amd. by Laws of 1906, chap. 658) it is provided that an appeal taken but not prosecuted within six months after the filing of the notice of the appeal, unless the time within which to prosecute the same shall have been extended by the court, shall be deemed to have been abandoned, and no agreement between the parties extending the time within which the said appeals may be prosecuted shall vary the provisions- hereof.” This provision requiring such an appeal to be prosecuted is not complied with by merely filing the notice of appeal. The evident intent was that the appellant should have the appeal in such a condition that it can be heard within the time fixed. If an agreement between the parties is not sufficient to justify a continuance of the appeal, certainly the neglect of the respondent to consent .to the settlement of the papers upon which the appeal is to be heard cannot have that effect. There is nothing in the affidavit of the. appellant’s attorneys to show that he was not fully conversant with this provision, and the only excuse is that the corporation counsel did not return the galley proof of the papers to be used on the appeal, as he had prepared them for a year and a half, which is obviously no excuse. The time within which to prosecute this appeal has not been extended by an order of the court. The appeal was taken more than two years and a half ago, and the provision of the section of the charter to- which attention has been called is mandatory.

For that reason the appeal should be dismissed.

Present — Ingraham, P. J., McLaughlin, Scott, Miller and Dowling, JJ.

Motion to dismiss appeal granted, with ten dollars costs.  