Jablon v. Javasile

FOURT, J. The plaintiffs and appellants herein brought an action to collect a broker’s commission, for damages and for the appointment of a receiver. Judgment was entered May 3, 1956, after a trial, that the plaintiffs take nothing and defendants were discharged with costs as set forth in the judgment. No notice of intention to move for a new trial was filed. A.notice of appeal was filed June 11, 1956..

The Jergins Building Corporation, by and through its attorneys, Rothman, Goodman and Hirschberg, and Alexander Bisno, individually and doing business as Bisno and Bisno, Henry Bisno and Herbert Bisno, by and through their attorneys, Earl Oakley and Mario L. Clineo, made separate motions to dismiss the appeal in the above entitled cause for [107]the reason that the appellants failed to deposit the necessary sum of money to secure the estimated cost of preparing the reporter’s transcript, and failed to procure and file a waiver of such deposit signed by the reporter, as required by rule 4(c) of the Rules on Appeal; further, that although appellants deposited the amount of the clerk’s estimate on the clerk’s transcript, pursuant to rule 5 of the Rules on Appeal, appellants did, on or about August 15, 1956, request the return to them of said deposit, and no clerk’s transcript has been certified or filed.

The clerk’s certificate in this matter sets forth, among other things, that notice to the clerk to prepare clerk’s and reporter’s transcripts was filed June 19, 1956, and pursuant to rule 4(a) of the Rules on Appeal, a copy of that notice was mailed June 24, 1956, to the court reporter. Pursuant to rule 4(a), above mentioned, the clerk’s office received a copy of the letter dated August 3, 1956, addressed to Leonard Horwin, attorney for the appellants, from the court reporter designating the estimated cost of $1,025, for the preparation of the reporter’s transcript on appeal. The clerk’s certificate recites that to date no arrangement with the clerk for the payment thereof has been made, and no waiver of deposit has been filed by the reporter.

The clerk’s certificate further recites that pursuant to rule 5 of the Rules on Appeal, a notice by the clerk designating the estimated cost for the preparation of the clerk’s transcript was mailed July 26, 1956, to Horwin; that on August 6, 1956, the estimated amount of $189.95, was received from the attorney for the preparation of the clerk’s transcript, and that on August 15, 1956, the clerk’s office received a letter, dated August 14, 1956, from Horwin, reading in part as follows: “There is concurrently being filed a Stipulation for Termination of Appeal in the above action, in which your Transcript Division agreed to withhold any preparation of Clerk’s Transcript pending expected settlement which has now occurred. Return to this office of the amount of $189.95, deposited on August 6, 1956, to cover original and one copy of Clerk’s Transcript, will be appreciated.” It is further set forth in the clerk’s certificate that on or about August 28, 1956, a refund was arranged for, and that no clerk’s transcript has been certified or filed. There is no entry on the Register of Actions of the filing of a stipulation for termination of the appeal.