The opinion
Monell, J. (Concurring.)
— Without questioning the power of the court to dismiss the appeal upon this motion, which it probably may do if it will take the trouble to examine the judgment roll, to see if there is any error in it, the practice of entertaining motions of this nature is attended with so much inconvenience and labor that it ought not to be followed, especially as there is another remedy quite as effectual, and which is free from the objection above stated.
The respondent was right in having the “case” declared abandoned. That left nothing but the judgment roll to be reviewed. But instead of moving to dismiss the appeal, he should have moved for an affirmance of the judgment, as provided in Rules 49 and 50.
The practice under these rules is as follows: If the appellant fails to serve his case, or to have it settled, or filed within the time prescribed by the rules, the respondent should apply, on notice, to the special term, to have the case declared abandoned. He should then apply for an order to put the case on the general term calendar; and on an affidavit of the non-service of the appeal papers, and on notice to the appellant for the earliest motion day in term, move to strike the cause from the calendar and for judgment of affirmance.
This practice is simple and effectual, and spares the court the labor of examining, upon a motion, a manuscript judgment roll, to see if there are any questions arising upon it for review.