
    Peck against The Executrix of Peck.
    NEW-YORK,
    May, 1817.
    Where, after a i^máde’andsetwhole right it is to make up the case must serve a copy of jt, as sett,e«l; m V1® a^the'time’aR ¡.°ngedtbfJr c”°^b for arguments and if the opposite party also notices the case for argument, sad has not been so served with a copy of the case as settled, lie may take judgment.
    BALDWIN, for the defendant, moved that the rule for a new trial, which had been granted at the last term, on the motion of the plaintiff, should be vacated. From the affidavits read, it appeared, that the cause was tried at the last Ononda&a circuit, 11 ° when a verdict was found for the defendant. The plaintifPs attorney wishing to move to set aside the verdict, as against evidence, made a case, a copy of which he served on the defendant’s attorney on the 22d day of June, (having obtained an order for enlarging the time,) to which the defendant’s attorney proposed amendments; and on the 27th of June notice was given to the defendant’s attorney, that the case would be settled before Mr. Justice Yates, before whom the cause was tried. Both parties noticed the case for argument at the August term, but it was not called on; and it was noticed again for argument, by both parties, at the last January term ; and the defendant’s attorney asked the plaintiff’s attorney for a copy of the case as settled by the judge, but he said the papers were with the judge who tried the cause, and that he did not know that the case was settled; in consequence of which the defendant’s attorney, on his notice, did not put the case on the calendar of causes for argument. The case had, in fact, been settled, and was in the hands of the partner of the plaintiff’s attorney, at the time. In January term, the cause was called on the part of the plaintiff, and no counsel appearing for the defendant, a rule was entered, by default, for a new trial.
    
      Goodenow, contra.
   Per Curiam.

The rule entered at the last term for a new trial must be set aside, without costs. The defendant’s attorney was entitled to a copy of the case as settled. Where, after verdict, a case is made and settled by the judge, the party whose right it is to make up the case must serve a copy of the case, as settled, on the opposite party, at or before the time of giving notice of the argument; and if the opposite party also gives notice of argument, anda copy of the case has not been served on him as early, at least, as the time allowed for giving notices of argument, he will be entitled to judgment.

Rule granted.  