King v. Norton , 72 N.Y.S. 591 ( 1901 )

Kekefick, J.

The notice of appeal demanded a new trial in this court. Neither party had demanded in his pleadings judgment exceeding fifty dollars, therefore appellant was not entitled, to a new trial in this court. Buffalo Charter (L. 1891, chap. 105, § 457, and L. 1895, chap. 805, § 33); Code C. P., § 3068.

The demand for a new trial may be treated as surplusage and the appeal heard upon the law. Kimball v. Rich, 20 N. Y. St. Repr. 153.

No return has been made to this court by the court below as required by section 3053 of the Code; and the alleged reason for such omission is the failure of the appellant to pay the b„enographer’s fees for a transcript of the evidence to attach to the other proceedings in the case. While I am not entirely convinced that under the provisions of the city charter (§§ 464, 468, L. 1898, chap. 101, § 5; 1893, chap. 245, § 8) the appellant is required to pay for such transcript, yet it still remains his duty to perfect his appeal by securing the filing of the return, either by paying the stenographer’s fees, if the charter provisions above referred to require such payment, or if they do not, then by compelling the making and filing of a return under section 3055 of the Code. The appeal must be dismissed with costs of this motion, unless within ten days the appellant shall procure the filing of a return and pay the costs of this motion. Van Heusen v. Kirkpatrick, 5 How. Pr. 422; Southard v. Philips, 7 Hun, 18.

The claim made upon the argument that notwithstanding the appellant has no right to a new trial in this court under the provisions of law referred to, yet he acquired such right by virtue of a stipulation entered into between the appellant and respondent, cannot be maintained even assuming the respondent intended to confer such a right under the stipulation. Consent cannot confer jurisdiction over the subject matter where none exists by law. McMahon v. Rauhr, 47 N. Y. 67; Parkhurst v. Rochester Machine Co., 65 Hun, 489; Chambers v. Ferron & Co., 56 N. Y. Supp. 338; Matter of Caffrey, 52 App. Div. 264.

Appeal dismissed, with costs, unless within ten days, appellant shall procure the filing of a return and pay costs of this motion.