
    In re Estate of OTIS P. CLARKE.
    Orphans’ Court; Appeal; Docketing Case.
    1. When a party appeals from the Orphans’ Court, but fails to prosecute his appeal, the General Term will not entertain a motion to docket the case and dismiss it for want of prosecution.
    2. Under such circumstances the appellee should apply to the Orphans’ Court to proceed to the settlement of the estate.
    Orphans’ Court.
    No. 2,990.
    Decided October 17, 1892.
    The Chief Justice and Justices Hagner and James sitting.
    Hearing on a motion to dismiss an appeal from the Orphans’ Court.
    
      Overruled.
    
    The facts are stated in the opinion.
    Mr. J. G. Bigelow for the motion.
    Mr. R. D. Mussey appeared for appellant at the time the appeal was filed, but died before this motion was argued. -
   The Chief Justice

delivered the opinion of the Court:

This is an appeal from the Orphans’ Court, and a motion is made to docket the case and dismiss, it for want of prosecution in this court.

It is not the practice of this court to docket a case when there is no record in this court and nothing to act upon— to order a case to be calendared, and then act upon it as if the record were here. Really, we have nothing to determine this motion by except the statement of counsel and the motion which is filed. If the appellant does not prosecute his appeal, the opposite party may apply to the Orphans’ Court to proceed to the settlement of the estate, if the appellant has not filed a supersedeas. It is for the appellee, if he wishes to proceed here, to file the proper papers'. There are proceedings that may be taken by the appellee when the appellant fails to prosecute his appeal probably; but we are without a record of what has been done in the Orphans’ Court, and must overrule the present motion.  