Catania v. Guccione

STURTEVANT, J.

This is a motion to dismiss an appeal. The plaintiffs commenced an action to recover a judgment for goods sold. The trial court awarded them a judgment in the sum of $1,034.81. Thereafter the defendant made a motion for a new trial and the motion was

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denied, and thereupon the defendant filed in the trial court, on June 22, 1922, a notice of appeal, but the appellant has not caused to be prepared, settled or filed a bill of exceptions, and there has been no dismissal by the trial court of any proceedings for a settlement of a hill of exceptions. The appellant has not filed in this court a transcript on appeal, nor has he obtained any stipulations or orders extending the time to file the same.

On the third day of January, 1923, the respondents served a notice that on the twenty-ninth day of January, 1923, at the hour of 2 P. M., they would move that the appeal be dismissed “on the grounds that the same has not been prosecuted to effect and no transcript or hill of exceptions has been settled, signed and filed as provided by law and the rules of the court.” Thereafter, on the twenty-fifth day of January, 1923, the respondents and appellant entered into a stipulation that the motion to dismiss might, at the time noticed for the making of the motion, be submitted for decision on the papers then on file, and waived oral argument or notice. Thereafter in due course the motion to dismiss was duly submitted.

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The moving papers seem to he regular in every respect. The laches of appellant are patent. No excuse therefor is shown. The motion is therefore granted and the appeal is dismissed.

Nourse, J., and Langdon, P. J., concurred.