
    Robert C. Davidge v. Russell Coe.
    
      New York Superior Court,
    
    
      General Term,
    
    
      Filed March 4, 1890.)
    
    1. Appeal—Dismissal—Case.
    It is not a sufficient ground to dismiss an appeal that the case has not been filed. It is the duty of the respondent to procure an order filing the case if he wishes to move that the cause he struck from the calendar.
    2. Same.
    A motion to dismiss an appeal is authorized only on the failure of appellant on non-enumerated motion to serve printed copies of the papers as required hy the rule.
    Motion to dismiss appeal.
   Truax, J.

Under rule 33 the case must be deemed to be settled because of the failure of the appellant to notify an appearance before the referee as required by rule 32.

Rule 33 prescribes that where a party makes a case or exception he shall procure the same to be filed within ten days after the same shall have been settled, and that on showing that such case or exceptions has not been filed and that more than ten days had elapsed-from the date of settlement an order of course may be entered declaring the case abandoned and the party may proceed as if no case or exceptions had been made.

Rule 10 of this court provides that no case or exceptions shall be filed with the clerk of this court unless the same shall have been ordered to be filed by the judge or referee who tried the cause.

I am of the opinion that in the event of the appellant’s failure to procure an order filing the case the respondent may procure such order, and it is his duty to procure such order in case he wishes to move that the cause be struck from the calendar and that judgment be rendered in his favor.

The motion before us is a motion to dismiss an appeal. Such a motion is authorized only on the failure of the appellant on non-enumerated motion to serve printed copies of the paper as required by the general rule of practice.

The motion to dismiss appeal is denied, without costs.

Dugro, J., concurs.  