¶1It was the duty of the party who excepted to the ruling of the court to bring that ruling before the General Term for review. “The exceptions must be heard upon a motion for a new trial, which must be decided by the General Term ” (Code Civ. Pro. § 1000). The plaintiff ought to have prepared the case, as he excepted to the ruling that dismissed the complaint. He has failed to prepare the case, and he must be deemed to have waived his right to prepare one (rule 33).
¶2The respondent was regular in noticing the exceptions for hearing at the General Term (§TOOO). As it was the duty of the plaintiff to prepare the papers on appeal, so also was it his duty to serve a copy of the appeal papers on the defendant and respondent (rule 40), eight days before the time at which the matter was noticed for argument. On his failure to do so, his adversary was at liberty to move, on four days’ notice, that the cause be struck from the calendar, and that judgment be rendered in his favor (rule 40). The motion of respondent must be granted.
¶3Cause stricken from calendar, and judgment for defendant.