The code of civil procedure of the state of New York Volume 5 ; with all amendments thereto, down to and including those enacted in 1902, fully and exhaustively annotated

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1912 Excerpt: ...by an attorney under § 66 is a special proceeding, and an appeal from the order entered thereon is not an appeal from a judgment; hence § 997 has no application and the order may be reviewed although a case has not been made; in such a proceeding a judgment in favor of the attorney is not authorized, but the determination should be in the form of an order adjudging that the plaintiff has a lien for a certain amount to be enforced as provided by § 779: Sullivan v. McCann, 124 App. Div., 126; 108 N. Y. Supp. 909. d. Case.--The special term of the Supreme Court will not strike out on motion a case on appeal served by tht defendant and retained by the plaintiff, as the question whether it is authorized by law must be determined by the Appellate Division: Waldo v. Schmidt, 62 Misc. 71; 115 N. Y. Supp. 1023. e. Case settled.--An appeal from a judgment of the city court of the city of New York must be heard upon a case settled and signed as prescribed by the general rules of practice; and, where the record does not show that the case has been settled and signed, a stipulation that it is a copy of the record filed does not cure the defect: Sacks v. Hookey, 55 Misc. 198; 105 N. Y. Supp. 235. f. Contents.--In the settlement of a case on appeal, it is the duty of the trial court to see that the case contains substantially all that transpired at the trial, to the end that the ultimate rights of both parties may be intelligently considered and effectually conserved: Moroney v. Cole, 56 Misc. 454; 107 N. Y. Supp. 214. g. Costs.--On an appeal from an order denying a motion for a new trial made on the ground of newly discovered evidence it is necessary to make a case and exceptions; the prevailing party is entitled to full costs of appeal, although he is als...