
    OETERS a. GROUPE.
    
      New York Superior Court; General Term,
    November, 1862.
    Appeal.—Proceedings wheeb ho Case is made.
    Where, on an appeal being taken, no case is made or served, the respondent may, upon the cause being regularly called on the calendar, and the appellant being in default, take a judgment of affirmance. He is not bound to move to dismiss the appeal, or to strike it from the calendar.
    Motion to set aside a judgment of affirmance taken by default.
    The appellant had never served any case, nor obtained any extension of time to do so, although the time allowed for that purpose had. long since passed. The respondent noticed the appeal for argument, put it on the calendar, and, the appellant not appearing when the cause was called, the respondent took a judgment of affirmance by default.
    
      W. D. Craft, for the appellant.
    This judgment is irregular. The appeal was not ready for argument until the case was settled, and the respondent’s only remedy, in case of delay in preparing the case, was, by motion, on notice, to dismiss the appeal.
    
      Geo. F. Steinbrenner, for the respondent.
    The cause came up before the' court, in the absence of a case, upon the whole evidence, and, in that shape, presents no ground for reversal. We were entitled to waive the want of a case, and, no one appearing to oppose, we had a right to an affirmance.
   By the Court.—Bosworth, Ch. J. (orally).

In this case a judgment of affirmance was taken by default, which the appellant moves to set aside as irregular, on the ground that no case had been prepared or served, and that, therefore, the appeal was not ready for any decision. In support of this view he cites Rule 42 of the Supreme Court, allowing the respondent, in such case, to move for a dismissal of the appeal. This remedy is not, we think, exclusive. The appellant alone was in fault for not having prepared the papers, and we think that ■the respondent was entitled to disregard the fact, and, upon the-appellant’s default, to take a j udgment of affirmance.

Motion denied, with $5 costs, and with liberty to renew on other grounds. 
      
       Present, Bosworth, Ch. J., Moncrief, Robertson, White, Barbour, and Monell, JJ.
     