pear; and on an affidavit proving the default and the service of such notice, the respondent may enter an order with the Clerk dismissing the appeal for want of prosecution, with costs and the court below may thereupon proceed as though there had been no appeal.

If the appellant serve an imperfect case, the respondent cannot enter an order dismissing the appeal under this rule. He should apply by motion for a correction of the case. (Bowers v. Talmadge, 23 N. Y. 166; 20 How. 516.)

RULE VIII.

Copies of Cases for Judges, and Copies of Points for the Court and Adverse Party.

At the commencement of the argument the appellant shall furnish a printed copy of the case to each of the Judges, and shall deliver nine other copies to the Clerk. Each party shall, at the same time, furnish to each of the Judges a printed copy of the points on which he intends to rely, with a reference to the authorities which he intends to cite; and shall deliver nine other copies to the Clerk, and three copies to the counsel of the adverse party.

In all appeals to this court heard as motions under subdivision four (4) of section eleven (11) of the Code of Procedure, as amended in 1867, the appellant shall furnish the court with the

number of printed copies, required by this rule in calendar causes, of all papers used in the court below, upon which the order appealed from was founded; and each party is also required to furnish the court with printed points, as in calendar causes.

The cases, points and calendars delivered to the Clerk shall be disposed of as follows: One copy of each shall be kept by the Clerk, with the records of the court. Two copies thereof shall be deposited in the State Library, one copy shall be deposited in each branch of the library of the Court of Appeals, one copy shall be deposited in the library of the New York Law Institute, one copy shall be deposited in the Law Library of Brooklyn, and one copy shall be delivered to the reporter.

Previous to the amendment of subdivision 4 of section 11 of the Code, in 1870, there were two subdivisions 4; one passed in 1865 (Laws 1865, p. 1280), and one in 1867 (Laws 1867, vol. ii, p. 1920), allowing different classes of appeals to be noticed and moved as motions. The Legislature of 1867 does not seem to have been aware that there was a subdivision 4 to the section already in existence. Both of these subdivisions 4 were in force. (The People v. Town Auditors, 1 Alb. Law. Jour. 60.) The language of the amendment of 1870 seems to apply to the subdivision passed in 1867, without refer

ence to that of 1865, and the court will perhaps hold both subdivisions to be still in force. (See Voorhis' Code, § 11 and note.) The rule refers to subdivision 4, passed in 1867, and the attention of the court does not seem to have been called to the amendment of 1870.

If subdivision 4 of 1865 is still in force, as we are inclined to believe, the court must see, from the return, that it in fact involves a constitutional question. It is not sufficient that counsel argued such a question below. (Gibson v. Choiteau, 8 Wallace, 314; Furman v. Nichol, id. 44.)

All appeals from orders must be placed upon the calendar, or the court will not, even by consent, hear an oral argument. (Gregory v. Cryder, 9 Abb. N. S. 89.) And, if preferred, should be noticed as preferred, and placed on the calendar in the fifth class of preferred causes. (Rule 20.) See order Feb. 25, 1871.

It was held by the old Court of Appeals, that only $10 costs of motion would be allowed upon appeals heard as motions. (Borst v. Levy.) This case had such varied fortunes, as appears from the records of the court, that it can hardly be regarded as authority. On the 20th of June, 1867, an order was entered, bearing the allowance of Judge Davies, that "the appeal be and the same is hereby dismissed, on the ground, that said order was not appealable,

and that the said appellant pay the said respondent $10 costs of this motion. It is further ordered that the order entered herein, June 21, 1867, be and the same is hereby modifiled, and this present order substituted in its place and stead. Enter above order. June 29, 1867. H. E. Davies."

Upon

The court had adjourned on the 27th. this is indorsed, "September 27, 1867. It is ordered that the order entered herein, June 21, 1867, be and the same is hereby resettled and modified, and this present order substituted in its place and stead, and in the place and stead of any other modified order of the order entered herein."

Memorandum: In all appeals to the Court of Appeals heard as motions under subdivision 4 of section 11 of the Code, as amended in 1867, the only costs of this court to be allowed to either party are the costs given by section 315 of the Code. Minute book, No. 6, page 323.

If the appeal was dismissed, on motion, on the ground that it was not appealable, costs of motion were all which should have been allowed by the court. (White v. Anthony, 23 N. Y. 164.)

But when the appeal is argued upon the merits, and sent down with a remittitur, that the "appeal be dismissed with costs," without any specification that motion costs only are in

tended, the respondent is entitled to full costs. (White v. Anthony, 23 N. Y. 164; People ex rel. v. Auditors of Westford, Ms., Balcom, J., Delaware Sp. T., Sept. 21, 1869; 40 How. 137; 9 Abb. N. S. 453.) Neither the court below nor its clerk has power to change or refuse to carry out the judgment of this court, contained in its remittitur, or to restrict the costs when the remittitur does not do so. (McGregor v. Buell, 17 Abb. 31; Griswold v. Harris, 16 id. 413, 414; Jarvis v. Shaw, id. 415, 416.) The court below is obliged to tax and allow the costs pursuant to the remittitur. (McGregor v. Buell, 1 Keyes, 153; 17 Abb. 32-35; Williams v. Murray, 2 Abb. N. S. 232; People v. Auditors, etc., supra.) We see no reason why, upon an appeal from an order, heard upon the merits, full costs should not be given. They are by the Supreme Court upon appeals from County Court orders. (Williams v. Murray, 32 How. 127; 2 Abb. N. S. 292; Grey v. Hannah, 3 id. 183.) In the latter case the head note erroneously states the appeal to be from a judgment.

If relief from the allowance of full costs be sought, it should be by motion to correct the remittitur, as was done in White v. Anthony (23 N. Y. 164); Murray v, Blatford (2 Wend. 221)