
    William W. Farley, Respondent, v. William H. Stowell, Appellant.
    
      Motion for a new trial—service of a case after the expiration of the specified time —such, service is not good for the purposes of an appeal — a neglect to reply to a letter is not a refusal.
    
    Where a motion for a new trial upon the minutes, made under section 999 of the Code of Civil Procedure, is by order of the court to be brought on for- a hearing upon a case containing exceptions to be served within sixty days, the opposing party is justified in declining to receive a case and exceptions served after the expiration of the sixty days.
    The fact that, after the- opposing party returned the case and exceptions, he neglected to answer a letter of the moving party notifying him that the motion for a new trial was to be abandoned and that an appeal-was to be taken directly from the judgment, and asking him whether he would accept the case and exceptions as having been served pursuant to such plan, does not amount to a refusal to accept service of the case and exceptions for the purposes of an appeal from the judgment.
    Smith and Kellogg, JJ., dissented.
    Appeal by the defendant, William H. Stowell, from an order of the Supreme Court, made at the Chemung Special Term and entered in the office of the clerk of the county of Broome on the 7th day of June, 1900, denying, except upon terms; a.motion to require the plaintiff to accept service of a case and exceptions upon appeal. _
    
      
      Judson A. Gibson, for the appellant.
    
      A. A. White, for the respondent.
   Parker, P. J.:

Upon the coming in of the verdict in this action a motion was made for a new trial upon the judge’s minutes under section 999 of the Code. In response thereto the order of February first was made. It is difficult to understand why a case and exceptions was therein directed, as none was needed in order to hear the motion, which is ordered to be brought on thereafter at the judge’s chambers ; but such was the practice which the defendant’s attorney seems to have "adopted, and the plaintiff’s attorney, upon the receipt of the case and exceptions by him, was justified in considering it as served under such order and in pursuance of such practice. He was also justified in returning it, inasmuch as he did not receive it until after the sixty days allowed by such order had expired.

We cannot conclude that it was served in time, because the defendant’s affidavit does not show any service at all. His statement that it was deposited in the post office at Elmira does not show a service, because he does not state that it was addressed as required by the Code nor that the postage thereon was prepaid. (Code, § 797.) And, as is insisted by the defendant’s counsel, we are not at liberty to consider on this appeal the affidavit of the plaintiff’s counsel which is printed in the record, because the order appealed from does not recite that it was used on the motion. Hence we can derive no aid from that affidavit upon the question of when or how service was made.

After the plaintiff’s attorney returned the case and exceptions, the defendant’s attorney, by the letter of April fifth, for the first time suggested that a change was intended in the defendant’s practice; that the motion for a new trial was to be abandoned, and that the only review to be asked was by an appeal directly from the judgment ; and, in substance, he asks in such letter that the plaintiff’s attorney will write him if he desires to accept the case and exceptions as having been served pursuant to such a plan. A copy of the judgment as entered had been served upon the defendant’s attorney February twenty-fourth by mail, and on or about that date a notice of appeal therefrom had been served by mail upon the plaintiff’s attorney. And it is, therefore, probable that, under rule 32, the defendant’s time to serve a case and exceptions for the purpose of that appeal had not expired on the day when the plaintiff’s attorney returned them. But, as stated above, the plaintiff’s attorney at- that time had no intimation that such was the purpose of the defendant’s attorney, and he was, therefore, regular in returning them as he did. Under such circumstances, I know of no rule of practice that required the plaintiff’s attorney to make any reply to the request contained in the defendant’s letter. He did not reply at all. Therefore, he has never declined to receive the case and exceptions when properly served. He has never returned them when received under circumstances which required him to keep- them. Without deciding whether the defendant had the right to abandon, oil notice merely, a motion that was pending as this one was, and to proceed to review the case in an entirely different manner, it is clear that until he had given such notice the plaintiff’s attorney was regular in returning the case and exceptions. And it is also clear that no service what ever has, as yet, been made by the defendant’s attorney of his case and exceptions as 'constituting a part merely of his appeal from the judgment. I do not find anywhere in this record that the plaintiff’s attorney has refused to accept a service for that purpose regularly ■ made, and I conclude, therefore, that the defendant was not entitled to an order requiring the plaintiff to do so. Had the defendant made such a service, and the plaintiff’s attorney then refused to accept it, the question which he now argues would have been’ presented. The mere neglect on the plaintiff’s part to reply to the letter referred to, does not, however, amount to a refusal to accept, and, therefore, warrant the order asked for.

Two positions seem to have been taken upon the motion at Special Term; one that the case and exceptions had been served in the time required .by the order of February first, the other that the proceedings under that order had been abandoned, and the case and exceptions were in time under rule 32, as having been served as part of ■the record on appeal only, within thirty days after notice of the entry of judgment., As shown above, the order there made might very well have denied the motion with costs. The one which, was made, and from which this appeal is taken, is not clear as to the grounds upon which it is based. It does not, however, appear to be any more onerous against the defendant than- the situation required, and therefore, it should be affirmed.

, Order affirmed, with ten dollars costs and disbursements.

All concurred, except Smitr and Kellogg, JJ., dissenting.

Order affirmed, with ten dollars costs and disbursements.  