
    Sells E. Woodhull, Resp’t, v. The Mayor, etc., of New York et al., App’lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed May 12, 1893.)
    
    Appeal—Case.
    A case and exceptions which lias not been settled by the judge or referee who tried .the case, or ordered filed, forms no part of the judgment roll and is not brought by the notice of appeal from the judgment before the appellate court for review.
    Appeal from judgment in favor of plaintiff rendered on a trial before a jury, and from order denying motion for a new trial
    
      William H. Clark and Almet F. Jenks (Theodore Connoly and Terence Farley, of counsel), for app’lts; William J. Gaynor and Paul E. De Fere, for resp’t.
   Per Curiam.

December 8, 1892, a verdict in favor of the plaintiff for $4,000 damages was rendered. On the next day the defendants moved on the judge’s minutes for a new trial on all the grounds specified in § 999 of the Code of Civil Procedure.” On the same day an order was entered granting the motion, “ unless the plaintiff consents to the reduction thereof to the sum of $1,500, and, if such consent be made, that said motion for a new trial be denied.” December 10th the plaintiff filed a stipulation-reducing the verdict to $1,500, and on the 12th of December, 1892,. a judgment was entered for $1,500 damages and $227.07 costs; total, $1,727.07. On the 6th of January, 1893, (twenty-five days after the entry of judgment), a further order was entered, reciting “that, a verdict having been rendered on the second cause of action in favor of the plaintiff for the sum of $4,000, and the said verdict having been reduced to $1,500, and defendants having moved to set aside said verdict, and for a new trial, on all the grounds specified in § 999 of the Code of Civil Procedure,” and directing “ that the said motion be, and is hereby in all respects denied.” One of the grounds mentioned in § 999 is that “the verdict is for * * * insufficient damages.” Afterwards, and in the month of January, 1893, the defendants severally appealed from the judgment and from the order entered January 6,1893. The record before us contains the judgment roll, the order of January 6, the notices of appeal, and what purports to be a case containing exceptions. This case sets forth the questions put to the witnesses and the answers given by them, and is evidently nothing but a copy of the stenographer's minutes of the proceedings which took place on the trial. This is a violation of general rule Ho. 34. This so called “case’’.has never been settled by the judge who tried it, as required by § 997 of the Code of Civil Procedure. Ho. 35 of the general rules of practice provides that “ no case or exceptions to be annexed to the judgment shall hereafter be filed by the clerk of the court, unless the same is so ordered by the judge or referee who tried the cause.” The so called “case” not having been ordered filed with the clerk, and annexed to the judgment roll, it forms no part of the roll, and is not brought by the notice of appeal from the judgment before this court for review. The case not having been settled nor signed by the judge who tried it, we cannot review the order of January 6, 1893, denying a motion for a new trial, even if we assume it was made “ at the same term ” at which the action was tried. Heretofore the court has often simply declined to hear cases presented by such records, and has allowed them to be withdrawn for correction ; but this has not been sufficient to stop this irregular practice. The notices of appeal do bring before this court for review the judgment roll and the order of January 6th, but nothing else. Ho error appearing upon the face of either, both must be affirmed, with costs.

Van Brunt, P. J., O’Brien and Follett, JJ,, concur.  