N.Y. Uniform District Court Act § 1704: Settlement of case and return on appeal

§ 1704. Settlement of case and return on appeal.

(a) When an appeal has been taken, 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.