By the Court.
Warner, J.delivering the opinion.
[1.] This is amotion to dismiss the rule nisi for new trial, on the ground that the agreement as to the brief of the testimony in the cause had not been entered on the minutes of the Court, at the term at which the motion for the rule liisi was granted.
By the 61st Rule of Practice in the Superior Courts, it is declared that, “ A motion for a new trial shall not operate as a supersedeas, unless an order to that effect be entered on the minutes, and in every application for a new trial, a brief of the testimony in the cause, shall be filed by the party applying for such new trial, under the revision and approval of the Court.” 2 Kelly, 478. The rule requires that a brief of the testimony shall be filed in the cause. In this case, a brief of the testimony was agreed on *95by the parties, and filed in the Clerk’s office at the term of the Court at which the motion for new trial was made, but the agreement was not entered on the minutes. When the motion to dismiss the rule was made, because the agreement had not been entered on the minutes of the Court, another motion was then made, to enter the agreement on the minutes, nunc pro kmc, which latter motion the Court allowed. We do not consider the allowing this agreement to be entered on the minutes of the Court, nunc pro tunc, according to the facts stated m this record, to be such an abuse of the discretion of the Court below, as will authorize this Court to control it. The evidence was agreed upon and filed at the proper time; the agreement was in writing, and before the Court. As to the objection that the brief of the evidence agreed on and filed, had been taken out- of the Clerk’s office immediately after the same was filed, and had remained in possession of plaintiff’s counsel, we have only to say, that if the opposite party was less prepared on that account, to argue the motion, it would have been a good ground to have applied to the Court for a continuance of the cause, which, no doubt, would have been granted.
Let the judgment of the Court below be affirmed.