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the meaning of the learned judge writing in Baylis v. Stimson, 110 N. Y. 621; 17 N. E. 144. But there was no intention there of introducing such a vicious practice. The learned judge was there animadverting against denials by folios, i. e. from such a line in such a folio to another line in another folio, which made it difficult on the original pleadings to find out what was denied, and impossible on the printed record on appeal for the reason that the original folioing was not there preserved. The denial here should have been simply of "each and every allegation in the counterclaim contained." And that is the form for a denial of the allegations of a complaint, with the addition "excepting," etc., or, varying to suit the case, if the allegations excepted be more numerous than those denied, by denying each and every allegation in certain numbered subdivisions of the complaint contained, saying nothing of things not denied. This is the proper
Denials in the form of negatives pregnant do not necessarily constitute bad pleading, if under the circumstances set forth, they are not indefinite, uncertain or ambiguous.
Parker v. Tillinghast, 1 St. Rep. 296.
The proper method of challenging a pleading containing a negative pregnant is by motion to make more definite and certain.
Pfaudler Process Fermentation Co. v. McPherson, 20 St. Rep. 473; 3 Supp. 609.
In Stuber v. McEntee, 142 N. Y. 200; 36 N. E. 878; 58 St. Rep. 455; 31 Abb. N. C. 246, it was indicated that a pleading which is open to condemnation as a negative pregnant may be regarded as good upon appeal, in the absence of a motion to correct and make more certain.
If the plaintiff proceeds to trial upon an answer containing a negative pregnant he cannot on the trial claim that the allegation attempted to be put in issue by such denial has been admitted but in the absence of a motion to make the answer more definite and certain the allegation is to be deemed controverted.
Wall v. Buffalo Water Works Co. 18 N. Y. 119.
Armstrong v. Danahy, 75 Hun, 405; 56 St. Rep. 743; 27 Supp. 60.
Schnitzer v. Gordon, 28 App. Div. 351; 85 St. Rep. 152; 51 Supp. 152. Elton v. Markham, 20 Barb. 343.
In Hopkins v. Everett, 6 How. Pr. 159 a demurrer was sustained to an an
swer which denied the allegations of the complaint conjunctively.
Likewise, Salinger v. Lusk, 7 How. Pr. 430.
and scientific way of pleading, and enables a trial judge to ascertain at a glance what is in issue. Flack v. O'Brien, 19 Misc. 399; 77 St. Rep. 854; 43 Supp. 854; Mitnacht v. Hawthorne, 31 Misc. 378; 98 St. Rep. 493; 64 Supp. 493, and cases there cited.
The motion is granted, with $10 costs.
SICKLES v. KLING.
[32 Misc. 165; 99 St. Rep. 513; 65 Supp. 513.]
(Supreme Court, Special Term, Kings County. June, 1900.)
APPEAL-FORM OF CASE-TITIES OF ACTION-VERIFICATIONS.
In preparing a case on appeal, the title of the action should be written or printed but once, and such matters as verifications should be merely noted, unless the appeal involves some point concerning them.
Action by Emely Sickles against Abram H. Kling. Motion
NOTE. FORM OF CASE ON APPEAL.
The term "case" as ordinarily used, even in this connection, is ambiguous, sometimes designating the written or typewritten proposed case and sometimes the printed record on appeal, which contains not only the settled case but the judgment roll, opinion, etc.
If the papers referred to in the case in the text whose titles, verifications &c. could be omitted are a part of the judgment-roll they could not be omitted. Rule 41 of the general rules of practice requires a copy of the judg ment-roll to be a part of the appeal book.
The written or typewritten case must be in black ink on paper of linen quality equal in weight to sixteen pounds to the double cap ream, of seventeen by twenty-eight inches in size.
§ 796, Code of Civil Procedure.
The evidence should not be stated in ipsis, verbis nor exhibits printed at length unless so ordered by the judge or referee.
General Rule of Practice, 34.
Cases in which the entire testimony is printed in ipsis verbis will be ordered back for resettlement.
Smith v. N. Y. C. & H. R. R. Co., 30 Hun, 144.
McNish v. Bowers, 30 Hun, 214.
Sickles v. Kling.
to settle the case for appeal to the appellate division. Proposed amendments disallowed.
Ferdinand E. M. Bullowa, for plaintiff.
Charles E. Thorn, for defendant.
GAYNOR, J. In preparing a proposed case on appeal the title to the action should be written and printed only once, and then all papers and proceedings should follow thereunder, and under proper subheadings. It is very useless, and indeed quite absurd, to keep on repeating the title. A large part of bulky appeal books consists of repetitions of the title of the action. And there are many other things which can be omitted, such as verifications, and the like, merely noting their existence or substance, unless, of course, the appeal involves some point concerning them. The numerous proposed amendments herein to repeat the title of the action at the head of each paper and so on, must be disallowed. Amendments disallowed.
FORM OF CASE ON APPEAL,-continued.
A paper which simply recites that at a certain place therein the judg ment-roll, notice of appeal &c are to be inserted and sets forth a proposed order for the printing of the stenographer's minutes is not a proposed case, and, the same having been returned by the respondent, a case made up in accordance therewith will not be settled and ordered on file.
Zucker v. Blumenthal, 92 St. Rep. 318; 58 Supp. 318.
The written or typewritten proposed case must be folioed.
It is also the practice to number the lines in such proposed case in order to facilitate reference in the proposition of amendments.
Settlement of a proposed case will be refused, where no attempt has been made to comply with rule 34 and reduce the evidence to narrative form and eliminate all verbiage and immaterial matter.
Donai v. Lutijens, 20 Misc. 221; 79 St. Rep. 364; 45 Supp. 364.
Orders for resettlement of cases which offend against rule 34 should impose the expense of resettlement upon the attorney personally. Ryan v. Wavle, 4 Hun, 804.
In Shaw v. Bryant, 65 Hun, 57; 47 St. Rep. 227; 19 Supp. 618, while the court refrained from ordering a case which was merely a transcript of the stenographer's minutes back for resettlement, still it was ordered that in the
FORM OF CASE ON APPEAL,-continued.
event of the appellant's ultimate success the expense of printing such case should not be taxed as a disbursement.
At the time of this decision (1892) rule 34 permitted either course. In the rules of 1896, rule 34 was amended by striking out the alternative of directing that the expense of printing the case be not taxed as a disbursement and restricting the remedy to an order for resettlement.
Attaching records together and calling the bundle a case does not make it one.
Campbell, Matter of, 88 Hun, 374; 68 St. Rep. 769; 34 Supp. 831.
The printed case must be folioed.
General Rule of Practice 43.
The size, color, type, and index of the printed case is prescribed by § 796 of the Code of Civil Procedure and by general rule of practice 43.
This rule will not permit the printing in italics of those portions of the evidence which the appellant deems favorable to him.
Campbell v. Jughardt, 50 App. Div. 460; 98 St. Rep. 198; 64 Supp. 198.
In Fuchs v. William H. Sweeney Mfg. Co. 34 St. Rep. 925; 12 Supp. 870, such a violation of the rule was punished by denying to the appellant costs to abide the event to which he would otherwise have been entitled upon the reversal of the judgment and an award of a new trial.
The printed case is required to be indexed regardless of its length.
General Rule of Practice, 43.
The corresponding provision in rule 42 of 1888 required an index only when the case exceeded fifty pages.
In the absence of the index the case will be stricken from the calendar.
Reid v. New York, 50 St. Rep. 758; 21 Supp. 719.
In Foster v. Bookwalter, 78 Hun, 352; 60 St. Rep. 119; 29 Supp. 116, the practice of indicating at the top of each page of the printed ease the nature of the contents of the page was commended.
An exception taken by the respondent should not be inserted, unless there is special reason therefor.
Danbey v. Stevens, 40 How. Pr. 341. s. c. 10 Abb. Pr. N. S. 39; 2 Sweeny,
Warn v. New York C. & H. R. R. Co.
WARN v. NEW YORK CENT. & H. R. R. CO.
[163 N. Y. 525; 57 N. E. 742.]
(Court of Appeals. June 22, 1900.)
APPEAL DISMISSAL-UNANIMOUS AFFIRMANCE.
The court of appeals will not dismiss an appeal on the ground that it is an appeal from a judgment of the supreme court unanimously affirming a judgment of the trial court, where the record shows that one of the sitting justices, having the right to vote, did not do so, though the remaining justices concurred in affirming it.*
Appeal from supreme court, appellate division, fourth department.
Action by Elias Warn against the New York Central & Hudson River Railroad Company. Defendant appealed from a judgment of the supreme court, appellate division (97 St. Rep. 1118; 63 N. Y. Supp. 1118), affirming a judgment for plaintiff, who moved to dismiss the appeal.. Motion denied.
This is a motion to dismiss the appeal on the ground that it is an appeal from a judgment unanimously affirming a judgment in an action to recover damages for personal injuries. The action has been three times tried, and has been once before this court. 157 N. Y. 109; 51 N. E. 744. The plaintiff was a car inspector in the employ of the defendant and was injured by having his head squeezed between the bumpers of cars while he was inspecting them. The negligence claimed is that the defendant failed to promulgate and enforce rules for the protection of car inspectors while in the performance of their duties. The original judgment of the appellate division recited that its decision was unanimous. That court thereafter granted leave to the defendant to appeal to the court of appeals, but upon the con
*For note on "Unanimous Decision of Appellate Division," see ante, pp. 229-232.