
    SHEPHERD F. KNAPP, as Receiver, &c., Respondent, v. WALTER ROCHE, Appellant.
    
      Motion to compel successful party on appeal to perfect judgment.
    
    When judgment of affirmance is rendered by the general term, it is the duty of the respondent to prepare and file a proper judgment-roll, based upon the said decision, and the appellant has a right to insist upon the performance of that duty. This is so, though the appellant has failed to file the printed case and exceptions as settled, under rule 85, the point not having been raised at the argument of the appeal, and the proposed case, proposed amendments and settlement of tne judge having been filed.
    Before Speir and Freedman, JJ.
    
      Decided May 8, 1880.
    Appeal from order denying appellant’s motion to require respondent to perfect judgment pursuant to a decision made by the general term in his favor. The facts sufficiently appear in the opinion.
    
      John T. McGowan, attorney, and Luther R. Marsh, of counsel, for appellant, urged
    I. The judge who tried the cause was dead, and his certificate could not be procured. The proposed case and amendments, as settled by the judge who tried the, cause, were on file in the office of the clerk of this court. The case and exceptions, as settled by the judge “who tried the cause,” were printed and served upon the attorneys for the respondent, and the appeal from the judgment, and the order denying the motion for a new trial, was argued at general term, upon the printed case and ex-, ceptions, so served. The court and the counsel for the respondent waived the certificate, as well as the filing of the printed case.
    II. The printed case and excéptions served upon the attorneys for the respondent and submitted to the court upon the argument, are “ the papers upon which the appeal was heard,” referred to in section 1,354.
    III. The clerk before entering judgment is entitled to insist on the payment of the fee for such service, which is chargeable to the party in whose favor judgment is entered (Burnett v. Westfall, 15 How. Pr. 430). It is the duty of the respondent to prepare and file the judgment roll on the decision of the general term. The appellant is entitled to have the successful party enter judgment upon the decision (Purdy v. Peters, 15 Abb. Pr. 160; Lentilhon v. Mayor, 3 Sandf. 733). Three printed copies of the appeal papers were served on respondent eight days before the commencement of term, under rule .41. This rule enables the adverse party to see that the case and papers on appeal are properly printed, and in case of affirmance of the judgment or order appealed from, enables him to perfect his judgment by annexing the judgment “ to the papers on which the appeal was heard.” The affidavit on the part of the appellant, and the certificate of the clerk, shows that no judgment roll has been filed, consequently section 1,336 has not been complied with, which requires the entry of every final judgment in the judgment book. In Schenectady Plank Road Co. v. Thatcher (6 How. 337), it was held that the decision of the court in writing, when filed, is not the entry of judgment; but that in.such a case, as in all others, the judgment must be entered in the judgment book, and that until judgment is thus entered the clerk is not authorized to make up the judgment roll. The judgment roll on the affirmance of the judgment as modified, should consist of the judgment roll filed in June, 1874 (prior to the settlement of the case and amendments), the notice of appeal from the judgment and order denying the motion for a new trial, the case and exceptions as settled, the order of the general term affirming the judgment as modified, and a postea. All these papers, with the exception of die order of the general term and the postea, are embodied in .the printed case and exceptions upon which the appeal wras heard, and on which the general term acted in making and rendering its decision.
    Develin, Miller & Trull, attorneys, and John E. Develin, of counsel, for respondent, urged:
    I. The judgment was perfected and the judgment roll filed on May 14, 1878, so far as the respondent was called upon to perfect and file them by the rules and practice of the court, (a) The order of the general term signed by the presiding judge is the judgment of the court, bio costs were given, and hence no postea was necessary. (5) Where judgment of affirmance is rendered upon appeal, the judgment roll consists of a copy of the judgment, annexed to the paper on which the appeal was heard (Code Civ. Pro. § 1,354). “ The papers” on which the appeal was heard in this action were the case on appeal as settled, which it was the duty of the defendant appellant to have filed (Code, § 1,353; Gen. Rule, 35), and the notice of appeal which he did file. The judgment of the general term was filed December 24, 1878, by the respondent. The only other act necessary to complete the technical judgment roll under §.1,354, was to be performed by the clerk pursuant to § 1,238. This section declares that' the “ judgment roll” must be prepared and furnished to the clerk b.y the attorney for the party, at whose instance the final judgment is entered, except that the clerk must attach thereto the necessary original papers on file ; but the clerk may at his option makeup the entire judgment roll. (c) “The judgment roll,” intended by this section “to be prepared and furnished to the clerk,” consists, so far as this suit and appeal are concerned, simply of the judgment of affirmance. The case as settled must be filed by the appellant (Rule 35): a copy will not do. The original papers to be annexed under this section to the judgment roll (“ to be prepared and furnished to the clerk”) are then the case as settled and the notice of appeal. The case was in the custody and control of the appellant and the respondent could not be called upon to file it; not having, he could not file it. (d) The requisite papers being thus presumably in the hands of the clerk he “ must,” in accordance with section 1,237, immediately file the judgment-roll. The mere fact that they are not bound up in a bundle by him does not deprive them of their character of a judgment roll.
   Per Curiam.

Section 1,354 of the Code provides that when judgment of affirmance is rendered upon the appeal, the judgment roll consists of a copy of the judgment annexed to the papers upon which the appeal was heard. The papers upon which the appeal was heard and determined were the printed case and exceptions. Section 1,238 states that the judgment roll must be prepared and furnished to the clerk by the attorney for the party at whose instance the final judgment is entered; except that the clerk must attach thereto the necessary original papers on file. But the clerk may, at his option, make up the entire judgment roll.

It was therefore the duty of the respondent to prepare and file a proper judgment roll, based on the decision of the general term, by which the judgment appealed from was affirmed on certain conditions, and the appellant has a right to insist upon the performance of that duty (Lentilhon v. Mayor, &c., 3 Sandf. 721 ; Rust v. Hauselt, 69 N. Y. 485). The affidavit of the appellant and the certificate of the clerk show that this has not been done, so that section 1,238 has not been complied with.

It is claimed, however, that although the case, as originally proposed by the appellant, the amendments proposed thereto by the respondent, and the settlement made by the judge who tried the cause, together with the notice of appeal, were properly tiled, the motion was properly denied because the appellant failed, before the hearing of the appeal, to file a copy of the printed case and exceptions as settled. True, this should have been done, and on the argument the certificate of the clerk should have been produced, showing-that it was done, and if the respondent had called the attention of the general term to the appellant’s omission in that respect, the court would have enforced the-rule. But the omission constituted only an irregularity, and both parties having invoked the action of the-court as though all preliminaries had been fully complied with, and the court having thereupon determined the appeal on that assumption and upon the number of printed copies handed up as required by the rules, the respondent cannot now be permitted to defeat the appellant’s right of review in the court of appeals by declining to perfect a judgment pursuant to the decision procured.

The order appealed from should be reversed, with costs, and an order granted requiring the respondent to-enter judgment upon the decision made by the general term, and to file a judgment roll; and providing that in doing so, he may file one of the printed copies submitted on the argument and now in the hands of the clerk of the general term of this court, as the printed case and exceptions ; and further providing that in case-of the respondent’s failure to comply with said order -within twenty days, the appellant, after the expiration of said twenty days, may enter judgment and prepare the judgment roll.  