Kohn v. Manhattan Railway Co.

Below the defendants took the position that their case should not be declared abandoned, because their right to make and propose one still existed. They asserted that a copy of the decision in the case had not been served upon them. The thirty-second general rule is:

“Whenever it shall be necessary to make a case, the same shall be made and a copy thereof served on the opposite party within the following times: If the trial was before the court or a referee, within ten days after service of a copy of the decision or report, and of written notice of the entry of judgment thereon.”

I am of opinion that the service of the copy and of the written notice should be made at the same time. It is unnecessary to determine this now, as it seems to be clear that the decision referred to in the rule is the decision provided by the Code. That is, it must be signed by the judge by his own hand, and it must direct, by its own proper force, the judgment which is to be entered. In this case no copy of a decision was served, but of what the plaintiff proposed to the judge should be his decision. It was called a “proposed” decision. This was not a decision. It did not apprise the defend*666Ants of what the rule meant they should know before they should be called upon to make a case. The judge might, after the service of the proposed case, .refuse to sign it, and might make a different legal foundation of the judgment. I therefore think that, as the time within which to serve a case had not expired, the case should not -have been declared abandoned. Order appealed from reversed, with $10 costs, and the motion below is denied, with $10 costs.