
    COURT OF APPEALS.
    John M. French, Jr., appellant, agt. Daniel W. Powers, respondent.
    
      Time for serving a case on appeal. Code of Omil Procedwe—sections 994, 997,998.
    Under the Code of Civil Procedure, as well as under the old Code, the party desiring to appeal has, at least, an equal time to serve the case which he has to frame the exceptions which it is to contain, and any court rule abridging this time is inconsistent with the Code and inoperate.
    The service of a copy of a referee’s report and notice of filing on the plaintiff’s attorney does not operate to limit the plaintiff’s time to serve a case or exceptions. The time does not begin to run until the entry of judgment and notice thereof, and the plaintiff has ten days thereafter within which to serve a case and exceptions.
    
      February, 1880.
    The trial was before a referee who reported in favor of the respondent. The report was filed on the 30th day of July, 1875, and on the same day a copy of it was served on the other side, since which time no step had been taken in the action by either party until the 1st day of May, 1878, when the attorney for the appellant tendered a proposed case, which the attorney for the respondent refused to receive on the ground that the time had expired, bio judgment has ever been entered in the action.
    A motion was thereupon made at special term that the case be declared served or the attorney for the respondent be ordered to receive it, which was denied. On appeal to the general term, the order of the special term was affirmed.
    
      George H. Mv/nger, for appellant.
    
      William H. Shepard, for respondent.
   Rapallo, J.

On the 30th day of July, 1875, when a copy of the referee’s report and notice of its filing were served upon the plaintiff’s attorneys, such service did not operate to limit the plaintiff’s time to serve a case or exceptions. The time did not begin to run under the then existing law until the entry of judgment and notice thereof, and the plaintiff had ten days thereafter within which to serve a case and exceptions (Code, sec. 268, 1851). This section, as amended in 1851, provided that the service of the case should be made within ten days after notice of the judgment, or within such time as might be prescribed by the rules of the court, but this provision was construed by this court, in Hunt agt. Bloomer (13 N. Y., 341), to mean such further time as might be prescribed. As the exceptions were not required by the Code to he filed or served until after the entry of judgment, it could not have been intended that the court should prescribe an earlier time for the service of the case containing the exceptions than that prescribed by the statute for serving the exceptions themselves, though it might well be that a longer time would be required to prepare the case. Johnson agt. Whitlock (13 N. Y., 344) also recognizes that the case was not required to be served until after judgment. The court properly held, therefore, in the present case, that Rule 34 of the supreme court, which required a case to be served within ten days after written notice of the decision or report in a case tried before the court or a referee, was in conflict with the Code and, consequently, inoperate. The notice of the filing of the report, therefore, did not limit the time for serving either the case or the exceptions. The time did not begin1' to run before the entry of the judgment and notice thereof. But it is claimed, and was held at special term, that section 994 of the Code of Civil Procedure, which went into effect September 1, 1877, changed the practice in this respect and validated Rule 34, which made the time run from the service of the report and notice, and that, consequently, the notice in this case having been served before September 1, 1877, it became operate on that date by virtue of the new Code, and the rule, and the time, consequently, ran from the time the new Code went into effect and expired ten days thereafter. I do not think it quite clear that that result would follow, even if the new Code had changed the practice. It would be more reasonable to hold that, as the notice when served did operate to limit the time to serve a case, a new notice should be served under the new Code in order to obtain the effect which the new Code is supposed to give to such a notice, and that the new Code could not retract and give to a notice served in 1875 an effect and force which it did not then have. But it does not appear to us that section 994 of the new Code does change the former practice. It provides that exceptions taken after the trial may be taken at any time before the expiration of ten days after service of a copy of the decision of the court, or report of the referee, and a written notice of the entry of judgment thereupon. Although, under this section, exceptions may be taken at any time after the trial, they are not required to be taken until ten days after notice of judgment. The section further provides that if filed before the entry of judgment they shall be inserted in the judgment roll; if afterwards, they must be annexed to it. ISTo provision is made in the new Code as to the time for serving the case. It must be made and settled as prescribed in the general rules of practice. This provision relates to the manner in which the case is to be made and settled, but within what time. it is to be served it is not said. All that is clear upon this subject is that the case need not, and cannot, be made until after the exceptions have been framed, for it is expressly provided that the case must contain them (sec. 997). It is contended that the exceptions here referred to are only those taken on the trial, but the context does not justify this construction. On the contrary, the section provides that the case shall contain so much of the evidence and other proceedings upon the trial as is material to the questions to be raised thereby, and, also, the exceptions taken by the party making the case; and the same section provides for a subsequent separation of the exceptions from the case, and the next section (998) provides that it is not necessary to make a case where the party intends, on his appeal, to rely only upon exceptions taken as prescribed in section 994. As the party excepting has, under section 994, until the expiration of ten days after notice of the entry of judgment to take the. exceptions, it is obvious that he cannot be put in default for not serving a case containing them, before the expiration of the time which the law allows him for framing them. The provisions are not explicit, but this much may be spelled out of them. They certainly are not sufficiently perspicuous to justify us in holding that they were intended to change the provisions of section 268 of the old Code or the interpretation which had been put upon them in Hunt agt. Bloomer and Johnson agt. Whitlock. There would be a manifest incongruity in requiring the case to be prepared and served before the exceptions. For the case, if properly made up, should contain only so much of the evidence as bears upon the questions raised by the exceptions, and until these are prepared and served the case cannot be properly settled. It should be shaped with reference to the exceptions, and to render the proceeding orderly, the exceptions should be served before or with the case. We think that, under the new as well as the old Code, the party desiring to appeal has, at least, an equal time to serve the case which he has to frame the exceptions which it is to contain, and that any court rule abridging this time is inconsistent with the Code and inoperate. As no judgment had been entered when the plaintiff attempted to serve his case and exceptions, we think he was in time and the service should have been accepted.

The orders of the special and general terms should be reversed, with costs, and the motion granted.

All concur.  