
    Mary Ann Noonan, Adm’rx, App’lt, v. The New York, Lake Erie & Western Railroad Co., Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 13, 1892.)
    
    Appeal—Case—Abandonment.
    After judgment of nonsuit plaintiff’s attorney procured the settlement of a case and exceptions, but thereafter served notice that they were abandoned, and commenced a new action. Held, that his practice was correct, and that he could not he required, on motion of his opponent, to file the case and exceptions.
    Appeal by the plaintiff from an order of the special term dated December 7, 1891, entered in Genesee county, December 9, 1891, directing her attorney to file a case and exceptions.
    
      M. F. Brown, for app’lt; George F. Brownell, for resp’t.
   Macomber, J.

plaintiff brought this action to recover damages sustained by the next of kin by reason of the death of her intestate, caused by the alleged negligence and unskillful ness of certain physicians employed by the defendant to attend the intestate, who had been injured on its railway while working as an employe of that corporation.

On the trial the plaintiff was non-suited. Upon application to the court there was granted to her ninety days time in which to make a case with exceptions, which was ordered to be heard at the general term in the first instance. Subsequently, the justice making this order modified the same by striking out that portion directing the exceptions to be heard in the general term in the first instance. The case with exceptions was settled October 14, 1891, by the justice who directed the same to be filed. Subsequently to this, it was determined by the plaintiff’s counsel to abandon further prosecution of that action; for what reason it is immaterial to this appeal. Accordingly, on the 19th day of October, 1891, there was served upon the defendant’s attorney a notice that the case with exceptions had been abandoned, and that an order might be entered as of course declaring the same abandoned without notice to the plaintiff. The case was not, in fact, filed under rule 35. A new action was begun October 28, 1891, and the motion, the order made upon which is now appealed from, was made in December, 1891, to compel the plaintiff to file the-case and exceptions.

We know of no rule of the court which forces a party to proceed with a hearing upon a case and exceptions; and, consequently, we know of no practice by which, after the abandonment of such case and exceptions, a party on motion of his opponent can be required to proceed in that mode to review the decision at the trial. Rule 35, of the Rules of General Practice, cannot bear any such construction. By that rule, unless the time in which a party is required to file a case after the same has been settled and signed shall be enlarged, the case is abandoned, and the party may proceed as if no case or exceptions had been made. There remains to either side the privilege, of course, to proceed to a • hearing upon the judgment roll, if it is deemed advisable. The case for review, therefore, is not by any means, under rule 35, thrown out of court by the practice here pursued by the plaintiff’s attorney. There is still open to him an appeal upon the judgment roll. As the defendant cannot compel him' to proceed originally to review the decision by making a case and exceptions, so he cannot, after notice received to the effect that the case with exceptions has been abandoned, take any step to that end which he could not originally have taken. Rule 35 affords an easy, expeditious and ample mode of procedure in the event that the case and exceptions, after settlement by the judge, be not filed, and contains, if filing be omitted, a complete, and in truth the only penalty known to our practice against the party proposing such case and exceptions; and no exigency is perceived, by the light of these appeal papers, for enlarging its provisions.

We think that the practice of the plaintiff’s attorney in this particular was authorized, and that, consequently, the order appealed from should be reversed.

Order appealed from reversed, with ten dollars costs and disbursements of the appeal, and the motion denied, with ten dollars costs.

Dwight, P. J., and Lewis, J., concur.  