Phelps v. Swan
The Superior Court of New York City
This was a motion to dismiss an appeal for a neglect and failure to prosecute. The papers used on the motion show that the appellant made a case on appeal; that such ease was settled by consent of the attorneys for the respective parties; that thereafter the appeal was, noticed for argument at the January General Term, 1870, and placed on the calendar for that term by the respondent.
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This was a motion to dismiss an appeal for a neglect and failure to prosecute. The papers used on the motion show that the appellant made a case on appeal; that such ease was settled by consent of the attorneys for the respective parties; that thereafter the appeal was, noticed for argument at the January General Term, 1870, and placed on the calendar for that term by the respondent. On the call of the calendar the court ordered the cause to be stricken off the calendar, because it had not been settled and ordered to be filed by the judge who tried the cause, as required by the rules of this…
1Opinion of the Court
By the Court:
Jones, J.
The question in this case is not as to where a motion to dismiss an appeal should be made. There never was, and is not now, any doubt on that point. It must necessarily be made to the appellate court, for that court alone has power over appeals taken to it.
The question is, for what causes can the General Term dismiss an appeal %
I think there are but two—the non-appealability of the decision below, and the non-service of printed copies of the appeal papers pursuant to rule 43. In the latter case the practice under the rule is, however, more properly to strike the cause…
2Cited by4 opinions
- Brown v. NiessNew York Court of Common Pleas · 1874
- Carraher v. CarraherThe Superior Court of New York City · 1871
- Smith v. Ingham UniversityNew York Supreme Court · 1894
- Carraher v. CarraherThe Superior Court of New York City · 1871