Plaintiff's counsel moved for an extra allowance of 5 per cent., to which defendant objected; motion granted; exception to defendant. Upon defendant's application the court granted sixty days from date within which to make and serve his case, and a stay of proceedings for days after service of a copy of judgment and notice of its entry. 49a The foregoing case, and the exhibits annexed thereto, contain all the evidence introduced and testimony taken on the trial of this action.50 FORM No. 1663. Notice of proposed case.51 [Entitle, unless indorsed on the case.] Please take notice, that the within is a copy of the case [or, exceptions-or, case and exceptions] proposed on behalf of the plaintiff [or, defendant] herein. [Signature and office address of], [Date.] [Address] To Attorney for Attorney for FORM No. 1664. Amendments proposed to proposed case.52 [Title of court and action.] Please take notice, that the [plaintiff] proposes the following amendments to the case [or, exceptions-or, case and exceptions] proposed on behalf of the [defendant]: 1ST AMENDMENT. On page 1, line 7, strike out the words. [stating what]. order denying the motion for a new trial must be entered, and an appeal taken from it (usually joined with an appeal from the judgment); otherwise the Appellate Division will not review the weight of evidence, or the amount of the verdict, notwithstanding the entry as above in the case. See Form 1645 and notes. An objection and exception is treated as sufficiently raising the question of the propriety of the extra allowance (see Form 1685, post, under COSTS AND ALLOWANCE). The direction as to time to make a case, and as to the stay of proceedings, may properly be made the subject of an order by the careful practitioner. 49a Not over thirty days, unless securtiy is given. Code Civ. Pro., § 1351. 50 See note 58 to Form 1667. 51 Serve within thirty days after receipt of copy of judgment and notice of entry, or if motion for new trial was then made and is not decided, within thirty days after notice of decision. Gen. Rule No. 32. A proposed case which does not comply with either Code Civ. Pro., § 997, or with Court Rule 34, is properly returned. Zucker v. Blumenthal, 58 N. Y. Supp. 318. 52 Serve within ten days after service of proposed case. N. Y. Gen. Rule No. 32. Omission to propose amendments within this time is deemed an assent to the case as proposed. Id., No. 33. 2D AMENDMENT. On page 2, strike out lines 2 and 3, and substitute as follows [stating what.] 3D AMENDMENT. On page 3, between lines 4 and 5, insert, "The plaintiff objected to the reception of any evidence of payment on the ground that payment was not alleged in the answer " [etc.53] [If in any instance it is claimed that the case should be made to conform to the stenographer's minutes, refer at the end of the amendment to the page of the minutes.]54 [Date, signature, addresses, etc., as in last Form.] FORM No. 1665. Notice of settlement of case, exceptions, etc.55 [Title of court and action.] Please take notice, that the proposed case [or, exceptionsor, case and exceptions] in this The party successful on the trial is not entitled to serve a proposed case made by himself as a substitute for that served on him. He must present his amendments as such, with references to the parts of the case served on him which he seeks to change as indicated in this Form. Stuart r. Binsse, 4 Bosw. 616; Perkins t. Hill, 56 N. Y. 87. 53 It is generally supposed that no objection or exception on the part of the successful party should have a place in the appeal book. See Dixon r. James, 181 N. Y. 129; Matter of Levy, 91 App. Div. 483, 86 N. Y. Supp. 862; Naul r. Naul, 32 Misc. 647, 66 N. Y. Supp. 447. This is true only so far as the reason goes, viz., that he asks no relief as respondent, and therefore need not assign errors. But there is a class of objections and exceptions which he should have incorporated, viz., such as show that there was no waiver on his part of objection to offers and requests on the adversary's part, the refusal of which is assigned as error by the adversary. For instance, if the plaintiff asked leave to amend a variance, and the defendant objected and interposed an affidavit of surprise and prejudice, and the court refused leave, and the plaintiff, consequently failing, appeals and relies action, together with the proposed on the refusal as error, the appellate court, if defendant's objection did not appear on the record, might assume that no objection was made. See, for an instance, Cass v. Higenbotam, 100 N. Y. 248, 254. It is true that the cases in which, if ever, an appellate court can justly proceed under such an assumption, are very rare, but it is so frequently done that caution requires attention to the point on the part of a respondent. 54 N. Y. Gen. Rule No. 32. 55 Serve within four days from the service of proposed amendments; omission to do so is an assent to the amendments. Gen. Rule No. 33. The time for settlement must be specified and may be not less than four, nor more than ten days after service of the notice. N. Y. Gen. Rule No. 32. Before submitting the case and amendments for settlement the party proposing the case must mark upon the several amendments, assented to," or, objected to." This enables the judge, in settling the case, to distinguish readily those as to which question is made. Produce on the settlement the stenographer's minutes, marked at the proper place with references to the number of each amendment applicable. amendments, will be presented for settlement to the Hon. J. K.56 [or, R. F., Esq., the referee], at his chambers at office at o'clock M. ], on the day of [or, at his [Date, signatures and addresses, as in Form 1656.] FORM No. 1666. Stipulation regarding exhibits. We hereby stipulate that the following constitute the material transcripts from the exhibits offered in evidence on the trial hereof by either party, and that any part of any exhibit or document put in evidence on the trial hereof which has not been printed may be referred to, and used on the argument of the appeal herein, and, if so desired, such exhibit or document may be handed to the court on the argument hereof. 56 If the judge is gone out of office it is still to be settled before him. Harris v. Morange, 1 City Ct. 221; S. P., People ex rel. Devlin v. Peabody, 6 Abb. Pr. 228. If he is deceased, or under disability, apply to the court. Morse . Evans, 6 How. Pr. 445 (death of judge); Juliand v. Grant, 34 How. Pr. 132 (death of referee); N. Y. Code Civ. Pro., § 997 (and see Leonard v. Mulry, 93 N. Y. 392, as to disability of referee). Otherwise in the absence of statute. Settlement may be compelled by mandamus. Ah Lep v. Gong Choy, 13 Oreg. 429, 9 Pac. Rep. 483; State ex rel. Keane v. Murphy (Nev., 1885), 6 Pac. Rep. 840; Hearst v. Dennison, 72 Cal. 227, 13 Pac. Rep. 629; People er rel. Knapp v. Judges of Westchester, 4 Cow. 73; People ex rel. Adams t. Baker, 14 Abb. Pr. 19; State ex rel. Otenberger . Hawes, 13 Wkly. L. Bul. 500. But the mandamus cannot direct the particular mode of settlement, that is to say, the contents of the case. Toner v. Mayor, etc., of New York, 1 Abb. N. C. 302; Canzi v. Conner, 4 Abb. N. C. 148; Scott v. Morgan, 94 N. Y. 508; Gleason v. Smith, 34 Hun, 547; s. P., Ex parte Morgan, 114 U. S. 174. The parties cannot stipulate regarding the case so as to deprive the judge [Signatures of attorneys.] of power to correct it. McManus v. Western Ass. Co., 40 App. Div. 86, 57 N. Y. Supp. 559. The remedy for a judge's refusal to settle correctly is to move on affidavits to the facts occurring at the trial, for resettlement, and then appeal from the order, if necessary. Form 1673 and note. See As to how far the stenographer's minutes control (especially when conflicting affidavits are submitted), and the general principles involved in settling a case, see Ditmas v. McKane, 87 App. Div. 54, 83 N. Y. Supp. 1077; Foster v. Stand. Nat. Bank, 21 Misc. 8, 46 N. Y. Supp. 839; Grossman v. Supreme Lodge, 5 N. Y. Supp. 122, 16 Civ. Pro. 215; Zimmer v. Met. St. Ry. Co., 28 App. Div. 504, 51 N. Y. Supp. 247, 5 Anno. Cas. 283. Where the stenographer's minutes have omitted the matter desired to have inserted, and counsel are at variance as to what occurred, the judge's recollection will be controlling. See Burke v. Baker, 104 App. Div. 26, 93 N. Y. Supp. 215. The trial judge has no power to permit the insertion of exceptions which were not taken at the time of the rulings. Fifth Ave. Bank t. Parker, 15 N. Y. Supp. 734. FORM No. 1667. Order settling case and directing filing.57 It is hereby ordered that the foregoing case and exceptions, which contains all the evidence introduced on the trial of this action,58 be and the same is hereby settled as the case and exceptions herein, [and the foregoing printed copy is hereby ordered to be filed in the office of the clerk of this court in lieu of the engrossed copy required by the rules]. Dated [Signature of judge, and initials of title.] We hereby consent to the entry of the foregoing order. Attorney for plaintiff-appellant. 57 This order is an essential part of the appeal record. Schoonmaker v. Hilliard, 55 App. Div. 140, 67 N. Y. Supp. 160; Dwight v. Elmira, etc., R. Co., 8 N. Y. Supp. 789, 5 Silvern. 596. An error in the case as settled may be corrected, even though the cases and briefs have been printed and served. Deveny . Head, 72 N. Y. Supp. 248. The case on appeal cannot be settled by stipulation so as to dispense with the order settling it and the signature of the judge. Gregory v. Clark, 53 App. Div. 74, 65 N. Y. Supp. 687; Watson v. Duncan, 29 Misc. 447, 60 N. Y. Supp. 755. Of course where the parties have stipulated that the case, as presented by the appellant, may be settled, a judge may properly act upon it and sign the case without examination; but he is not obliged to do so, or to settle the case as presented. McManus v. Western Ass. Co., 40 App. Div. 86, 57 N. Y. Supp. 559 Wierichs v. Innis, 32 Misc. 462, 66 N. Y. Supp. 553, 8 Anno. Cas. 122; aff'd, 56 App. Div. 625. 58 Without such a statement as this, either in the case, or in the order settling the case, any objection which requires all the evidence, such as, that the findings were against the weight of evidence, will not be reviewed. Porter v. Smith, 35 Hun, 118; aff'd, 107 N. Y. 531. Where the character of the appeal is such that it is in itself notice to the respondent that questions turn ing upon the weight of evidence will be urged upon the appellate tribunal, the Court of Appeals has held that it is the respondent's duty to see that all the evidence is contained in the case, that the appellate court is to presume that the case contains all the evidence, and that no certificate is necessary, to the effect that the case contains all the evidence. Rosenstein t. Fox, 150 N. Y. 354 (holding no certificate necessary when the appeal is from a judgment entered upon a verdict, and error in trial rulings is urged. Notwithstanding this decision (which seems incapable of being distinguished), the following cases hold that if there is no such certificate in the case, upon an appeal from a judg ment and order denying a new trial, after trial by jury, the Appellate Division is limited to a review of the exceptions. Ceballos r. Munson SS. Line, 112 App. Div. 352, 98 N. Y. Supp. 464; Taquinto t. Bauer, 104 App. Div. 56, 93 N. Y. Supp. 388; German v. Brooklyn Heights R. Co., 107 App. Div. 354, 95 N. Y. Supp. 112; Empire Trust Co. v. Devlin, 45 Misc. 583, 90 N. Y. Supp. 1066; Gregory v. Clark, 53 App. Div. 74, 65 N. Y. Supp. 687; cases in Abb. N. Y. Cycl. Dig., vol. 3, pp. 13-15. Contra, Hochberger . Baum, 46 Misc. 425, 92 N. Y. Supp. 244; Gibson r. Met. St. Ry. Co., 31 Misc. 391, 64 N. Y. Supp. 396, 7 Anno. Cas. 455. A review of the weight of evidence, and a setting aside of the verdict, appeals to the FORM No. 1668. Stipulation waiving certification.59 Pursuant to section 3301 of the Code of Civil Procedure, it is hereby stipulated that the foregoing are true copies of the [carefully include by specific mention all the distinct papers which compose this record before the appellate court, as:] Notice of Appeal, Judgment Roll, Order denying New Trial, and Case and Exceptions, in this action, on file in the office of the clerk of the county of ; and certification thereof by said clerk is hereby waived. [Date.] discretion of the court, to some extent, and, therefore, the above rulings may be justified on the ground that the Appellate Division will not exercise its discretion in the absence of a certificate. The certificate is not necessary upon an appeal from a non-suit, or the direction of a verdict. Zimmerman v. Union Ry. Co., 3 App. Div. 219, 38 N. Y. Supp. 362; Brown v. James, 2 App. Div. 105, 37 N. Y. Supp. 529. A certificate is necessary in order to review the inadequacy or excessiveness of the verdict. Hunt v. Webber, 22 App. Div. 631, 48 N. Y. Supp. 24. Such a certificate is necessary after trial by court without a jury, in order that the facts may be reviewed on an appeal from the judgment. Voss v. Smith, 110 App. Div. 104; Gorham Mfg. Co. v. Seale, 3 App. Div. 515, 38 N. Y. Supp. 307; Porter v. Smith, 107 N. Y. 531; Aldridge v. Aldridge, 120 N. Y. 614. Necessary after trial of issues of fact before referee. Opperman Brewing Co. v. Pearson, 67 App. Div. 98, 73 N. Y. Supp. 541; Spence v. Chambers, 39 Hun, 193. As to the right to have the statement inserted, see Magnus v. Trischet, 2 Abb. Pr. (N. S.) 175. The fact may be stated either in the body of the case or in the certificate of the judge. Coleman v. Reierson, 36 Minn. 222, 30 N. W. Rep. 811. Contra, Lyon t. Davis, 111 Ind. 384, 12 N. E. Rep. 714 (holding that it must be in the certificate of the judge). And this statement is sufficient. Stair . Richardson, 108 Ind. 429, 9 N. E. Rep. 300. A certificate that it contains the [Signatures of attorneys.] substance of all the evidence is of doubtful efficacy. Rolfe v. Dudley, 58 Mich. 208, 24 N. W. Rep. 657. It is not enough to say, "all the testimony." Koehler v. Hughes, 73 Hun, 167, 25 N. Y. Supp. 1061; McCarthy v. Gallagher, 4 Misc. 188, 23 N. Y. Supp. 884; Randall v. N. Y. El. R. Co., 76 Hun, 427, 27 N. Y. Supp. 1062; aff'd, 149 N. Y. 211; Grening v. Malcom, 83 Hun, 9, 31 N. Y. Supp. 612; Central Un. Tel. Co. v. State (Ind., 1887), 12 N. E. Rep. 136. Doubted in Hallenbeck v. Smith, 51 App. Div. 344, 64 N. Y. Supp. 959; Zimmerman v. Un. R. Co., 3 App. Div. 219, 38 N. Y. Supp. 362. A regular certificate is unavailing if it appears from the body of the case that all the evidence is not there. McNeely v. Holliday, 105 Ind. 324, 4 N. E. Rep. 894; Louisville, etc., Ry. v. Grantham, 104 Ind. 353. S. P., Dexter v. Adler, 76 Hun, 439, 27 N. Y. Supp. 1131. An affidavit by one of the appellant's attorneys that the case contains all the evidence is wholly ineffective. Gibson Mfg. Co. v. Seale, 3 App. Div. 515, 38 N. Y. Supp. 307. An inadvertent omission of the certificate may be corrected by amendment, even after the case has been printed, and the appeal heard at Appellate Division. Barnard v. Gantz,' 69 Hun, 104, 23 N. Y. Supp. 260; Martin v. Baust, 23 App. Div. 234, 48 N. Y. Supp. 989. The application must, of course, be made on notice and to the trial judge. 59 Either this stipulation, or the clerk's certificate as in following Form, must be printed in the case. Crawford . Price, 22 N. Y. Supp. 644, 51 St. Rep. 927. |