2006 New York Code - Settlement Of Case And Return On Appeal.



 
    §  1704.  Settlement  of case and return on appeal. (a) When an appeal
  has  been  taken  as  herein  prescribed,  the  stenographer's  original
  transcript  of  minutes  must  be furnished to the clerk within ten days
  after the fees therefor have been paid. Immediately upon receiving  such
  minutes  the  clerk  shall  cause  notice of that fact to be sent to the
  attorney for the appellant, or to the appellant if he  or  she  has  not
  appeared by attorney. Within fifteen days after receiving the transcript
  from  the  clerk,  or  from  any  other  source,  the  appellant  or the
  appellant's attorney shall make any proposed amendments and  cause  them
  to  be  served,  together with a copy of the transcript, on the attorney
  for the respondent, or on the respondent if he or she has  not  appeared
  by  attorney.  Within fifteen days after such service, the respondent or
  the respondent's attorney shall make  any  proposed  amendments  to  the
  transcript or objections to the proposed amendments of the appellant and
  cause  them to be served on the appellant's attorney or on the appellant
  if he or she has not appeared by attorney. The appellant or his  or  her
  attorney  shall  then procure the case to be settled on a written notice
  of at least four  days  to  the  clerk  and  to  the  attorney  for  the
  respondent  or  to  the  respondent  if  he  or  she has not appeared by
  attorney, returnable before the judge who tried the case. The clerk must
  thereupon make a return to the appellate court, which must  contain  the
  summons  or  notice  of  petition, pleadings, evidence, judgment and all
  other necessary papers and proceedings, and  have  annexed  thereto  the
  opinion of the court, if any, and the notice of appeal. The judge before
  whom  the  case  was  tried  shall within five days from the date of the
  submission to the court of the case  on  appeal,  settle  the  case  and
  indorse  his  or  her  settlement  on  the  return. In lieu of the judge
  settling the case and indorsing his or her settlement on the return, the
  parties may stipulate that the transcript  together  with  the  proposed
  amendments,  if  any,  and all other elements of the return are correct.
  The clerk must thereupon cause the return to be filed with the clerk  of
  the appellate court. After a judge is out of office he or she may settle
  the  case in any action or proceeding tried before him or her and may be
  compelled by the appellate court so to do.
    (b) Where no testimony was taken and a settlement of  a  case  is  not
  required,  the  return  shall be made by the clerk forthwith upon filing
  the notice of appeal. Such return shall contain the  judgment  or  order
  appealed  from  and  all  the original papers upon which the judgment or
  order was rendered or made, duly authenticated by the certificate of the
  clerk having the custody thereof, or copies thereof  duly  certified  by
  such  clerk, and shall have annexed thereto the opinion of the court, if
  any, and the notice of appeal.
    (c) Upon an appeal from an order granting or denying a  motion  for  a
  new  trial,  upon  the ground of fraud or newly discovered evidence, the
  stenographer's minutes of the trial shall be included in the  return  of
  the  clerk  and  the provisions of subdivision (a) of this section shall
  apply to such an appeal.

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