Odell v. McGrath

Per Curiam : The preparation of a case is not necessary to perfect or prosecute an appeal. A party may argue his appeal on the judgment roll alone. (Schwarz v. Weber, 103 N. Y. 658.) The failure to serve a case, therefore, does not fall within the provisions of section 1303 of the Code of Civil Procedure, relative to mistakes or defects in perfecting an appeal. It is by the Rules of Practice alone that a case is made necessary. It is unquestionable that the time to serve a case prescribed by the rules may be extended or a party permitted to serve a case after his time has expired. There is no express provision in the rules as to where applications to relieve from default in serving a case should be made, but Strong v. Hardenburgh (25 How. Pr. 438) decides that the proper practice is to apply to the court from whose judgment the appeal is taken. The order appealed from should be reversed and leave granted appellant, upon the payment within five days of ten dollars costs, to serve proposed case within twenty days. Upon failing to pay [104] such costs, the order appealed from should be affirmed, with ten . dollars costs and disbursements. ■ All concurred. Order, reversed and leave granted appellant, upon payment within . five days of ten dollars costs, to serve proposed case within twenty-days. Upon failure to pay such costs, order affirmed, with ten dollars costs and disbursements. .