
    Minnie McCarthy, Respondent, v. The Metropolitan Street Railway Company, Appellant.
    Motion to dismiss an appeal.
    Henry'A. Robinson, for appellant.
    Steuer & Hoffman, for respondent.
   Scott, J.

This is a motion to dismiss an appeal taken from a judgment of the City Court for failure to make and . serve the printed case. The case on appeal was settled on the 27th day of September, 1905. The appellant’s time in which to print and serve the papers was extended, from time to time, by stipulation with the plaintiff’s attorneys, the last time until October 28, 1905. The case not having then been served, the respondent, on November first, served a notice of motion asking for a dismissal of the appeal. This motion was made returnable upon the first day of the present term, November 6, 1905. On November 3, 1905, the appellant applied ex parte for and obtained an order, from one of the justices of the City Court, extending the time of the defendant to serve his case upon appeal nunc pro tunc as of October 28, 1905, until November 13, 1905; and, upon the hearing of this motion, hands up said order as one of the reasons why such motion should not be granted. We think the defendant is mistaken in his practice. Rule 41 of the General Rules of Practice provides that the party whose duty it is to furnish the record upon an appeal shall cause a printed copy of the papers to be filed, etc., and that, if the appellant fails to file and serve the papers as aforesaid the respondent may move to dismiss the appeal.” Further than this it does not go. Under this rule, the Appellate Division has declared that, upon a motion made in that court to dismiss an appeal for failure to serve a case, and it appearing that the appellant is in default in that respect, such motion will be granted and that no extension of time to file and serve the case will be given in that court and that such extension, if desired, must be applied for and obtained in the lower court. The reading of Rule 41, however, is somewhat different than Rule 3 of the Rules for the hearing of appeals from the City and Municipal Courts, which rule was made by the Appellate Division and governs the practice in the Appellate Term. Rule 3 declares that in appeals from the City Court, in case the appellant shall not cause the return to be filed with the clerk of the Appellate Term and print and serve three copies thereof upon the attorney for the respondent within ten days “ after the settlement of the case on appeal, the respondent may move, etc., and the appeal shall be dismissed, unless the time of the appellant to cause such return to be filed and copies thereof to be printed and served be extended by the justices assigned to hear such appeals or one of them, for good cause shown.” This phraseology would seem to make it incumbent upon the appellant, when thus in default, to move to open his default and procure an extension of time in the Appellate Term or from one of the justices then sitting therein, upon good cause shown;” or, upon a motion made by the respondent for that purpose, “ the appeal shall be dismissed,” unless the appellant upon such motion excuses his failure to comply with the rule. The defendant herein was in default, the stipulated time having expired on October 28, 1905. The order obtained in the City Court is of no force and effect in this court. Sufficient reasons exist, as shown by the affidavits filed upon this motion, why the defendant should be relieved from the situation.

The default may be opened upon payment of ten dollars costs therefor, and ten dollars costs of this motion and filing and serving the printed papers upon appeal, within ten days; otherwise this motion is granted with costs.

Default opened upon payment of ten dollars costs, and ten dollars costs of this motion and filing and serving printed papers upon appeal within ten days; otherwise motion granted, with costs.  