Weinman v. Dilger

By the Court.—Sedgwick, J. The notice that the appeal was withdrawn did not discontinue the appeal. An order was necessary to accomplish that, and the appellant had such rights, that the court; if applied to for an order of discontinuance, might have absolutely denied it or granted it in a modified form. The ordinary practice would have been to obtain an order that the appeal be declared abandoned, for this motion is not strictly grounded on the non-service of printed papers (Rule 41, amending Rule 50 of the general rules, and Rule 4 of this court). This would have been a mere form, inasmuch as the notice of withdrawal of appeal was an abandonment of the appeal by the appellant, although not a discontinuance of it, as to the respondent. The motion should therefore be granted. Of course, this decision does not affect the rights of the [103] surety, if an action be brought against him on the undertaking, except so far as the ipsum factum affects it. Whether or not the dismissal of the appeal now made is within the meaning of the undertaking, will be determined in any action that may be' brought upon it. The motion to dismiss is granted, with $10 costs of the motion, and the costs of the appeal, to the time of the order directing that the case be put on this -calendar. Speir and Freedman, JJ., concurred.