
    MANHATTAN RAILWAY CO. v. TABER.
    
      N. Y. Supreme Court, Special Term, First District;
    
    
      February, 1894.
    1. Appeal; case on non-emimeraied motions l] Where an appeal is taken from an order on a non-enumerated motion, a motion to dispense with the printing of any papers submitted upon the hearing of such motion should only be granted, if at all, if there can be no reasonable difference of opinion as to the immateriality of the papers whose printing is sought to be dispensed with.
    
    2. Motions and order¿.] A special term held by another judge than the one who granted such order, has no power to give any direction as to what shall be contained in the printed papers upon an appeal from the order.
    3. Appeall\ Where an appeal was taken only from so much of a final order which confirmed the award of the commissioners in a proceeding for the condemnation of real property as failed to provide that defendants recover costs ; and the costs were denied merely upon the ground that defendants were not entitled to them as a matter of law,—held, that the printing of the minutes of the proceedings before the commissioners might be dispensed with.
    4. The same.] Where an appeal was taken from an order in a proceeding by a railroad company to condemn real property, authorizing the plaintiff to continue in possession, and providing for a perpetual stay of all actions and proceedings interfering with plaintiff’s possession, except so much of the order as authorized plaintiff to continue in possession; and the granting of such order had been opposed upon the ground that the court had no power to grant it, and also upon the ground that, if the court had the power, it would not be proper to exercise its discretion,—held, that the printing of the minutes of the proceedings before the commissioners could not be dispensed with, though defendants offered to stipulate that upon the appeal they would not contest the propriety of the commissioners’ report or that of the order confirming it.
    Motion to dispense with the printing of minutes on appeals from certain orders.
    Proceedings were commenced by the Manhattan Railway Company against Henry M. Taber and others to acquire title to Nos. 137, 139 and 141 Pearl Street in the city of New York.
    The defendants appealed from the three following orders, made in such proceeding :
    (1) The order entered on November 28, 1892, upon the order to show cause granted by Mr. Justice Andrews, providing for a, perpetual stay of all actions and proceedings interfering with plaintiff’s possession of the property, pursuant to Code Civ. Pro., § 3379, except so much of the order as authorizes the plaintiff to continue in possession of the property upon complying with the terms of the final order confirming the award.
    (2) From the final order confirming the award, entered on November 27, 1893, in so far as the same fails to provide that the defendants recover of the plaintiff the costs of proceeding, etc.
    (3) From the order entered December 23, 1893, by Mr. Justice Ingraham, denying the defendants’ motion to modify the final order so as to provide for costs, etc., and for an additional allowance.
    Defendants offered to stipulate, if plaintiff would agree to the dispensing on these appeals with the printing of the minutes of testimony taken before commissioners, not to question such minutes on appeal nor that the report of the commissioners was properly confirmed on such record. The plaintiff declined to enter into the stipulation ; and on January 12, 1894, the defendants moved at General Term for leave to dispense with the printing of such minutes, which motion was denied, the court directing that the defendants apply at Special Term to the judge who lieard the motion to confirm and the motion for the stay.
    The defendants then made this motion before Mr. Justice Andrews for leave to dispense with the printing of the minutes, etc.
    
      John E. Parsons for the motion.
    
      William H. Godden (Davies, Short & Townsend, attorneys), opposed.
    
      
      See note at the end of this case.
    
   Andrews, J.

Rule 3 provides that when any order on a non-enumerated motion is entered, the papers used or read on the motion on either side shall be specified in the order, and shall be filed with the clerk, unless otherwise ordered by the court, or the order may be set aside as irregular, with costs. Section 1353 of the Code of Civil Procedure provides that an appeal to the General Term from an order must be heard upon a certified copy of the notice of appeal, and of the papers used before the court of the judge upon the hearing of the motion, and Rule 41 requires that such papers shall be printed.

It appears by the papers that application was made to the General Term for the relief which it is sought to-obtain upon the present motion, and I have, therefore, conferred with the presiding justice of the General Term in relation to the matter. After such conference I feel authorized to say that it is not the opinion of the General. Term that the Special Term has the power to dispense with the printing of any papers which are to be used on the argument of the appeal; and that unless the minutes of the proceedings before the commissioners are printed as a part of the printed papers to be used on the appeal, they-cannot be used or referred to upon the argument of the appeal. The offer, therefore, of the appellant’s attorneys to stipulate that the stenographer’s minutes may be-produced and used upon the argument of the appeal does not furnish any grounds for an order dispensing with tImprinting of those minutes.

A further question is presented as to whether the offer of the appellants to stipulate that they will not, upon said appeals, question either that the report of the commissioners was the proper one upon such testimony, or that the said report was rightfully confirmed by said order, furnishes-any ground upon which the court can grant an order dispensing with the printing of said minutes. There is no provision of the Code, or of the rules, which authorizes the-Special Term to direct that papers submitted upon a motion heard at Special Term, and which have been duly filed, and are recited in the order entered upon such motion,, need not be printed in the papers to be used upon the argument of an appeal from such order ; and the power torn alee such direction can be exercised only upon the theory that some of the papers, which have been so submitted, filed and recited, were not actually used, or that they were not considered by the court in deciding the motion. In Weseman v. Wingrove (85 N. Y. 358), where an objection was raised that papers submitted at the Special Term were-not before the General Term, the Court of Appeals said : “ Neither the Code nor the rule is to be so literally construed as to compel the printing and presentation of unnecessary and superfluous papers. What is material and necessary to the proper action of the Appellate Court is enough.” In that case there had been no order of the court dispensing with the printing of any of the papers, submitted at Special Term, but certain papers used at Special Term had been omitted by the attorneys.

Assuming that the Special Term may dispense with the printing of papers, which have been submitted to it upon the hearing of a motion, such power must, of course,, be very sparingly exercised, and only in cases where there can be no reasonable difference of opinion as to the materiality of the papers in question. Otherwise, if the Special Term, or a justice of this court, in deciding a motion, considers that some of the papers submitted by either side are immaterial, and, therefore, does not consider them in deciding the motion, and an appeal is taken from the order entered upon the decision, the right of appeal might be rendered wholly valueless if, upon the application of either side, the Special Term or said justice should direct that the very papers, whose materiality was-in dispute, need not be printed.

It appears from the papers that this motion relates to three appeals, which are now pending, namely :

First. Appeal from an order made by Mr. Justice Ingraham.

Second. An appeal from so much of the final order entered herein as denied costs to the defendants.

Third. An appeal from an order granting a stay of proceeding.

With regard to the appeal from the order made by Mr.. Justice Ingraham, I have no power to give any directions as to what shall be contained in the printed papers to be used on the appeal.

With regard to the appeal from so much of said final order as denied costs to the defendant, it is entirely clear that the appeal must be disposed of by the General Term upon a question of law. Costs were not allowed to the ■defendants by the Special Term because it was believed that, as matter of law, they were' not entitled to costs. The minutes of the proceedings before the commissioners were not considered in the disposal of this question, and would not be considered by the General Term upon the appeal if they should be printed. If the General Term should decide that, as matter of law, the defendants were •entitled to costs, it would then send the matter back, with a direction that the Special Term should exercise its ■discretion as to the amount of the allowance to be made. The printing of the minutes, therefore, for the purposes of this appeal would be wholly unnecessary and useless, •and I think such printing should be dispensed with.

With regard to the appeal from the order staying proceedings, a different question is presented.

The granting of this order was opposed upon the ■ground that the court had no power to grant it, and also upon the ground that, if the court had such power, it would not be a proper exercise of discretion to grant the ■order.

The proposed stipulation, offered by the appellant, ■does not state what questions the appellant proposes to raise upon the appeal, but only what questions it does not propose to raise. This leaves it for the court to determine from memory what questions were raised on a long argument, which took place nearly three months since, and .also to conjecture as to what questions the appellant can, ■or may, raise upon the argument of the appeal.

The minutes of the proceedings before the commis-sioners were certainly considered very carefully by me in passing upon the question whether a stay of proceedings ■should be granted, and I do not know but that it may be very material, in some aspect of the case, .for the appellee, that such minutes should be before the General Term. As against the objection of the appellee, it is certainly doubtful whether the court has the- power to dispense with the printing of such minutes, and it is certainly still more doubtful whether, against such objection, if the court has the power, it ought to exercise it. If the appellant offered to stipulate that upon the appeal questions of law only would be raised, and stated in the stipulation what those questions would be, it might then be apparent that the printing of such minutes would be unnecessary, and such printing might be dispensed with. As the matter stands, however, I cannot foresee what questions may be raised, and I cannot make an order which may imperil the rights of the appellee, when I am in the dark as to what the effect of the order asked for might be.

A motion to dispense with the printing of the minutes on the appeal from the order, made by Mr. Justice In-graham, will be dismissed.

The motion to dispense with the printing of the minutes on the appeal from so much of the final order herein as denied costs to defendant, will be granted.

The motion to dispense with the printing of the minutes on the appeal from the order granting a stay of proceedings, will be denied.

No costs will be granted on either motion.

The orders will be settled on notice.

Note on the Necessary Papers to be Printed on Appeal from an Order ; and the Effect of a Stipulation to Depart from the Rule.

It is a well settled general rule that whatever papers are actually-used on the hearing of a motion, each party has a right to require shall be designated specifically in the order entered upon the motion; and neither party has a right to have any papers stated in the order to have been used, which were not actually used (See the cases collected and the reason of the rule noted in i Abb. Pr. and Forms, 252). And in order to secure the application of this principle where original papers are produced on the hearing of a motion, and read without leaving the custody of the party producing-them, it is desirable to have the judge or clerk endorse them with a minute that they were so used in order to secure the right of the party on the settlement of the order.

The question how far this rule can be departed from by stipulation of the parties is not so well settled. Two clear general principles point in different directions on this question.

First: The judicial power never acts except when invoked, and the parties to a controversy may, by stipulation, limit the extent to which it shall act; and where the parties unite in specifying what part of the controversy they desire to determine, the court (unless some rule of public policy will be transgressed thereby) will confine its decision accordingly. Thus, the parties to a controversy respecting a fund, may stipulate that an action to be tried between them shall be confined to determining their rights as between themselves. Hong Kong, Shanghai Banking Corporation v. Cooper, 114 N. Y. 388. Here the case was presented upon the pleadings and a written agreement of the parties, which provided, among other things, that in case the court should finally decide that the defendant had a specific right, judgment should be in his favor for a sum which they had deposited in the trust company, and in case the court had not such, judgment should be for the defendant, for the amount so deposited.

VANN, J.,

said : “ The parties by thus defining the question and prescribing the remedy have confined discussion to narrow bounds. The rights of third persons, however apparent or important, are expressly excluded from consideration. We are asked to pass upon the right of the defendant, simply as against the plaintiff, to substitute other hemp in performance of the contracts; and, conversely, upon the right of the plaintiff, simply as against the defendant, to demand that its hemp only should be used for that purpose. The agreement of the parties to thus limit judicial inquiry is binding upon the courts, as it is not unreasonable nor against good morals or public policy. Parties by their stipulations may in many ways make the law for any legal proceeding for which they are parties, which not only binds them, but which the courts are bound to enforce.” Matter of Petition of New York, Lackawanna & Western R. R. Co., 98 N. Y. 447, 453.

Such a stipulation, however, should be clearly expressed. See Schroeder v. Frey, 114 N. Y. 266; Steinbock v. Evans, 122 Id, 551; Otis v. Conway, 114 Id. 13.

In the same manner the parties may stipulate as to what question shall be argued on appeal, and the decision on what questions shall be deemed final. Riggs v. Commercial Ins. Co., 125 N. Y. 7, 11.

So in Drexel v. Pease, 133 N. Y. 129, at the close of the testimony before a referee under a reference not to hear and determine, but to report the referee’s finding upon one or more specific facts involved in the issue, the attorneys for all the parties stipulated and consented that the referee “ may refer ad libitum to the printed case upon appeal in this action to ascertain any fact for his information.”

The “ case” thus referred to was one settled on appeal from an interlocutory judgment which directed the reference.—Held, by the Court of Appeals, that this stipulation carried with it to the Special Term every fact and every paper that was before the referee.

In Harris v. Sweetland, 48 Mich. 110, the court in an opinion by Graves, J., stated their view as to what parties may and may not stipulate upon, as follows: “ They may waive many rights which may belong to them according to the practice of the courts; they may agree that certain judgments may be taken to exist without other proof ; may waive objections to evidence not strictly proper ; may yield the right to except for defects in pleading; and one may admit generally that the case is against him and suffer judgment without an investigation of the facts.

“ But there are necessary limits. The parties cannot by agreement supersede the essential regulations made by law for the investigation of causes and adopt methods of their own which contravene the fundamental rules of proceeding and still retain the full right to claim revision in this court.” Citing Gittings v. Baker, 2 Ohio St. 21; Conner v. Drake, 1 Ohio St. 166; Kelsey v. Forsyth, 21 How. (U. S.) 85. And the court there accordingly held that they could not give effect to a stipulation to consolidate cross-actions when the State practice did not allow such a course.

It is a practical consequence of this doctrine that if we stipulate for what the court has not power to do adversely, we get at most a consent decree ; and even that may be void if the objection is jurisdictional. A consent decree which is merely erroneous, may be valid. Hawkins v. Blake, 108 U. S. 422, 432.

Second: The other principle (one of growing importance) is that an appellate court will not consider a question t-hat was not considered and passed upon by the court below. It is in pursuance of this principle that it has been held that a judgment entered pursuant to a stipulation that it might be entered for the purpose of appeal is not appealable. Chapin v. Perrin, 46 Mich. 130.

This principle is not to be pressed too far ; and the parties may, while reserving the right to review a ruling as to the law applicable (exception having been taken), agree by stipulation on the amount of damages which will be applicable if that ruling be sustained, even though the ruling be as to the measure of'damages. Carr v. Hills Archimedean Lawn Mower Co., 12 Daly, 332.

The object of the second principle here stated is both fairness to-the court and counsel, and economy of judicial time by enabling the appellate court to confine its labors to the revision of what has actually been done. It is easy to see that the labor of an appellate court would be necessarily increased by sanctioning a stipulation which should bring new facts into the case or new documents into-the evidence which were not considered by the court below; and something of the same inconvenience would result if the parties-were allowed, without bringing the matter to the notice of the court of first instance, to exclude from the papers on which the appeal should be heard, some which were before the court of first instance, an I the absence of which might perhaps have varied their conclusion and rendered an appeal unnecessary.  