
    Sandor Kohn, Respondent, v. The Manhattan Railway Co., Appellant.
    (New York Superior Court — General Term,
    May, 1894.)
    Service of a proposed decision is not sufficient to limit the opposite party’s time to make a case and exceptions. The decision referred to in rule 82 is the decision provided by the Code, viz., one signed by the court or referee and directing by its own proper force the judgment which is to be entered.
    Appeal by defendant from order declaring its case abandoned.
    
      Jo. L. Maynard, for appellant.
    
      W. W. Badger, for respondent.
   Sedgwick, Ch. J.

Below the defendant took the position that its case should not be declared abandoned because its right to make and propose one still existed. It asserted that a copy of the decision in the case had not been served upon it. The 32d general rule is: “ Whenever it shall be necessary to make a case * * * the same shall be made and a copy thereof served on the opposite party within the following times, if the trial was before the court or a referee, etc., etc.: within ten days after service of a copy of the decision or report and of written notice of the entry of judgment thereon.”

I am of opinion that the service of the copy and of the written notice should be made at the same time. It is unnecessary to determine this now, as it seems to be clear that the decision referred to in the rule is the decision provided by the Code. That is, it must be signed by the judge by his own hand, and it must direct by its own proper force the judgment which is to be entered.

In this case no copy of a decision was served, but of what the plaintiff proposed to the judge should be his decision. It was called' a proposed decision. This was not a decision. It did not apprise the defendant of what the rule meant it should know before it should be called upon to make a case. The judge might, after the service of the “ proposed case,” refuse to sign it and might make a different legal foundation of the judgment.

I, therefore, think that, as the time within which to serve a case had not expired, the case should not have been declared abandoned.

Order appealed from reversed, with ten dollars costs, and the motion below is denied, with ten dollars costs.

Freedman, J., concurs.

Order reversed, with ten dollars costs, and motion denied, with ten dollars costs.  