
    Noonan v. New York, L. E. & W. R. Co.
    
      (Supreme Court, General Term, Fifth Department.
    
    April 13, 1892.)
    Practice on Appeal.
    Where plaintiff was nonsuited, and leave was granted her to file a case with exceptions, which she afterwards voluntarily abandoned, and instituted a new action against the same defendant, it was error for the court below to compel her to file the case and exceptions; Gen. Rules Prac. No. 35, providing that, where a party fails to file a case or exceptions within the time allowed him, the case is abandoned, and the party may proceed as if no case or exceptions had been made
    Appeal from special term. Genesee county.
    
      Action Dy Mary Ann Noonan, administratrix, against theNew York, Lake Erie & Western Railroad Company. Erom an order of the special term directing plaintiff to file a case and exceptions plaintiff appeals.
    Reversed.
    Argued before Dwight, P. J., and Macomber and Lewis, JJ.
    
      M. F. Brown, for appellant. George F. Brownell, for respondent.
   Macomber, J.

The 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 unskillfulness 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 nonsuited. Upon application to the court there was granted to her 90 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 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 tiling 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 those 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 $10 costs and disbursements of the appeal, and the motion denied, with $10 costs. All concur.  