Walsh v. Gregory — 19 Abb. Pr. 363

Majority

p. 363

WALSH a. GREGORY.

Supreme Court, First District;

General Term, May, 1865.

Headnote

Appeal.—Default.

The provision of the Code of Procedure (§ 256), that in the first judicial district there need be but one notice of trial from, either party, does not apply to notice of argument on an appeal to the general term.

Appeal from an order.

In this action, an order had been made directing a commit" mitment for disobedience of an injunction, and from this order the defendant appealed. The appeal was placed on the non-enumerated calendar for the February term, and a notice of motion to dismiss the appeal and also of argument was served by the respondent’s attorney for that term, but no notice was served by him for the present term. When the case was called for argument at the present term,

p. 364

Levi S. Chatfield, for the appellant,

objected that no notice of argument had been served.

Francis Tillou, for the respondent,

admitted the fact, but ■contended that in this district only one notice of argument of an appeal was necessary.

We decided last term that this section does not apply to notice of argument, and a default cannot be taken at a general term for which the appeal is not noticed.

The case must go over.

Footnotes

* Present, Leonard, P. J., Clerke and Barnard, JJ.