
    Frank P. Vandenbergh, Appellant, v. George E. Mathews and Another, Respondents.
    Ordered: That the motion be granted and. anneal dismissed, with costs, -including ten dollars costs of motion, unless the appellant. within ten days, pays the ten dollars costs of the motion and procures a written.stipulation from the respondents’ attorneys opening the defaults with reference to the case- and exceptions, or serves motion papers for an order opening such defaults for the earliesfc Special Term practicable, and thereafter proceeds with due diligence to have the case settled, signed and filed.— Motion by the respondents to dismiss the appeal for a failure to file and serve printed papers as required by rule 41 of the General Rules of Practice.—
   Williams. J.:

It is provided by rule 41, among other things, that the appellant shall file and serve the printed papers within twenty days after the appeal is taken, or if a case or case and exceptions is necessary, within twenty days after the filing of such case or case and exceptions. While the appellant evidently desires to have a case and exceptions in the papers, he has, under the rules, abandoned the same. He served a proposed case and exceptions and the respondents served amendments thereto. The appellant failed to serve a notice of the settlement thereof, and by reason of such failure the amendments were all allowed. (Rule 33.) The case thereupon became settled, and it was the duty of the appellant, within ten days thereafter, to procure the same to be signed by the referee and filed, and the failure so to do operated ¿s an abandonment of the case and exceptions. (Rule 35; Rothschild v. Rio Grande Western Ry. Co., 9 App. Div. 407.) There being no case and exceptions, the time to file and serve printed papers under rule 41 expired twenty days after taking the appeal, and upon failure to so file and serve papers the respondents were entitled to move this court to dismiss the appeal under rule 41. If the appellant desires to be relieved from the position in which he is placed, so as to get his case and exceptions resettled, signed and filed, and make them a part of the papers on appeal, he must move to open .the defaults with reference thereto, and such motion must be made in Special Term. (Rothschild v. Rio Grande Western Ry. Co., supra.) If he desires to have an actual settlement before the referee, he must move to be relieved from the effect of his failure to serve a notice of settlement, and then after such resettlement is had he must procure the case and exceptions to be signed by the referee and filed within ten days. If he chooses to regard the case and exceptions as already settled, and to have them signed by the referee and filed, he can do neither of these things until he has procured an order opening his default in not having already done so. (Rothschild v. Rio Grande Western Ry. Co., supra.) Under these circumstances, we think, that the appellant should have an opportunity to procure relief from his defaults, and, therefore, the order will be that the motion be granted and the. appeal dismissed, with costs, including ten dollars costs of motion, unless the appellant,' within ten days, pays the ten dollars costs" of motion and procures a written stipulation from respondents opening the defaults referred to, or serves motion papers for order opening such defaults for the earliest term practicable, and thereafter proceeds with due diligence to have case and exceptions settled, signed and filed. The time to file and serve printed papers after such filing case and exceptions is provided for by rule 41. All concurred.  