This is a motion to restore the appeal in this proceeding to the calendar, it having been dismissed under rule one for failure to file a return as therein required.

It appears that the justification of sureties executing the *Page 518 undertaking on the appeal is still pending and undetermined in the Supreme Court.

The filing of a return cannot be compelled until the appeal is fully perfected.

The motion should be granted, without costs.

CULLEN, Ch. J., EDWARD T. BARTLETT, HAIGHT, VANN, WILLARD BARTLETT, HISCOCK and CHASE, JJ., concur.

Motion granted.