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Dresser v. Brooks

1 Abb. Ct. App. 555 Court N.Y. English

Delivered by Bronson, Ch. J.

Contents

Majority

p. 555
DRESSER v. BROOKS.
1850.

Headnote

A notice of justification of sureties, served By mail, must allow double time, unless an order enlarging the time be procured. It is no excuse for short notice that double time did not remain after notice of exception to the sureties was received.[2]
p. 556
Two successive appeals in the same cause should not be encouraged, and a second appeal, after dismissal of the first, with costs, will be stayed till the costs of the first are paid.[2] '
Motion to dismiss appeal.
The facts in this case are stated in 2 N. Y. 559 . The irregularity complained of on this motion appears in the' opinion.

As the notice of justifying was served by mail, it should have been double timé, or ten days. If the appellant had not sufficient time to give regular notice by mail, he should either have caused personal service to be made, or should have obtained a judge’s order enlarging the time. As the notice was irregular, the justification amounts to nothing. But there is ground for granting relief, and the appeal will not be dismissed if the sureties justify within thirty days, and the appellant pays the costs of the motion.

If the sureties justify, all further proceedings on the appeal should be stayed until the costs of the former appeal are paid. Two successive appeals in the same case, like two actions for the same cause, tend to vexation; and we think this branch of .the motion should be granted.

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