Morris v. Morange — 17 Abb. Pr. 86

Majority

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MORRIS a. MORANGE.

Supreme Court, Second District;

General Term, December, 1863.

Headnote

Time of Appeal.—Service by Mail on Clerk.

Unless notice of appeal is actually received by the clerk of the court within the time limited by the Code, the right to appeal is lost.

Service of papers upon the .clerk of the court by mail, is effective only from the date of his actually receiving them.

Appeal from an order.

This action was brought by William A. Morris and George Kissam, executors, against Henry H. Morange and others, for the foreclosure of a mortgage: plaintiffs had judgment, and defendant Morange appealed. An order was made at Kings Special Term, directing that the notice of appeal from the judgment in this action, served on the clerk, be set aside and taken from the files of the court, on the ground that it was not served within thirty days- after notice of the judgment. The defendant Morange appealed from the order.

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The following is the opinion delivered at special term:

Lott, J.—The notice of appeal was not filed with the clerk within the time prescribed by the Code. The deposit of it, although on the thirtieth day, in the post-office, was not a sufficient service on, or notice to the clerk, it having, in fact, not reached him until four days afterwards. (See Crittenden a. Adams, 5 How. Hr., 310.) A notice by mail is only allowable in case of service on a party or his attorney under sections 408, 410, of the Code. The case, as presented, is therefore one where the notice of appeal was insufficient to give the appeal effect, and does not fall within the provisions of section 327, authorizing an amendment. (People a. Eldridge, 7 How. Pr., 108 .) I cannot, therefore, grant any relief to the defendant by which he can make his intended appeal effectual.

H. H. Morange and E. A. Brewster, for appellant.

T. F. Jackson and D. P. Barnard, for respondents.-

Section 332 of the Code requires that an appeal must be taken within thirty days after written notice of the judgment or order shall have been given to the party appealing.

The appeal is taken by the service of a notice .in writing on the adverse party, and on the clerk with whom the judgment or order appealed from is entered, stating the appeal from the same, or some specified part thereof. (Code, § 327.)

The time to appeal, in this case, expired with the 19th day of March, 1863, and on that day the defendant Morange deposited in the post-office, in Rew York, a notice of appeal, addressed to the plaintiff’s attorney, “ Brooklyn, E. D.” and another to the “ Clerk of Kings County, Brooklyn.”

The object of section 332 is to limit the time within which appeals may be taken to thirty days, and unless notice is actually served on the clerk within that time, the right to appeal is lost. The Code and statutes have provided, that service of certain papers may be made in a manner therein specified; but, in the absence of such particular statutory provision, service of a written notice pan only be made by the delivery of the paper

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to the person upon whom it is to be served. An actual manual delivery may not be necessary, but the receipt of the paper by the person to be served is essential.

The provisions of the Code (§§ 410, 411), for service by mail, only allow such service upon parties to actions and their attorneys; and while they render the service of the notice of appeal upon the plaintiff’s attorney in this case sufficient, they * have no such effect as to the notice which the defendant was required to serve upon the clerk.

The notice mailed to the clerk was .not received by him until the 23d of March, 1863, four days after the time to appeal" expired.

The order should be affirmed.

Footnotes

* Present, Brown, Scrugham, and Lora, JJ.