Hoffenberth v. Muller — 12 Abb. Pr. 221

Majority

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HOFFENBERTH against MULLER.

New York Common Pleas, Special Term ;

August, 1871.

Headnote

Appeal prom Marine Court.—Service oe Notice. —Extension of Time for Appeal.—Waiver.

The statute (Code of Procedure, § 354) requiring notice of appeal from the marine court of New York city to the common pleas, to be served on the clerk of the marine court, is satisfied by a service at the office of the clerk of the court upon a person duly authorized to receive the same. It need not be served on the clerk personally.

The omission to make service upon the respondent in person, provided for by the same section {Code, § 354), is not fatal to the appeal ; but, if the appeal is taken in good faith, is amendable.

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An attorney, by Ms general authority, may, after judgment rendered, give a stipulation allowing an extension of the time to perfect an appeal.*

* Compare Barrett v. Third Ave. R. R. Co. ( 45 N. Y., 628 , affirming 8 Abb. Pr. N. S., 205), holding that an attorney’s general power does not extend to a compromise or release of the cause of action. Carstens v. Barnsdorf (11 Abb. Pr. N. S., 442), holding that it does not extend to satisfying judgment, nor to releasing one of several defendants without payment. Read v. French ( 28 N. Y., 285 ), holding that he has power, even contrary to instructions, to consent to open a default obtained by fraud. Tiffany v. Lord ( 40 How. Pr., 481 ), countenancing his power to consent to a reference of an action not referable without consent. Eagan v. Rooney ( 38 How. Pr., 121 ), holding that on entry of judgment the authority of defendant’s attorney ceases.

Motion to dismiss an appeal.

Charles Hoffenberth sued John T. Muller, in the marine court, and on April 4, 1871, judgment was entered in favor of the defendant. On the 24th the defendant’ s attorney consented in writing that the plaintiff have twenty days’ further time to serve case and perfect appeal to the court of common pleas. Before the expiration of that twenty days, the appellant served the notice of appeal upon the deputy clerk of the marine court, and upon the respondent’s attorneys but did not serve the same upon the respondent personally, as required by section 354 of the Code.

A motion was now made to dismiss the appeal: 1. Because notice of appeal was not served within the statutory time, the attorneys having no power to release the same. 2. Because the notice of appeal was not served upon the clerk of the marine court, but upon his deputy. 3. Because no copy of the notice of appeal was served upon respondent.

O. F. & J. C. Shaw, for the motion.

Lewis Sanders, opposed.

As to the second ground upon which the dismissal is asked, it seems to me that the statute is complied with by a service at the office of the clerk of the court, upon a person duly authorized to receive the same, and that it is a good and sufficient service upon the clerk. It would be frequently requiring an impossibility to insist upon a personal service upon the clerk. The object of the statute is complied with by a service at the office of the clerk, upon the person in charge thereof, during office hours. I therefore think that this point is not well taken.

The third point is well taken. The statute distinctly requires service of the notice of appeal upon the respondent personally, and this cannot be dispensed with ; but an omission to make such service is not fatal to the appeal, but if the appeal is taken in good faith, has always been considered amendable (Williams v. Tradesmen’s Fire Ins. Co., 1 Daly, 322 ).

The first ground upon which this motion is founded seems to be of greater gravity. It has been frequently held that the court has no power, either directly or indirectly, to extend the time for the perfecting an appeal (Humphrey v. Chamberlain, 11 N. Y. [1 Kern.], 274; Wait v. Van Allen, 22 Id., 319; Salles v. Butler, 27 Id., 638); and it was urged that the attorneys had no power by stipulation to extend the time ; that the only power which an attorney has after a judgment has been entered is that conferred by statute of satisfying the same ; and that the attorneys, in stipulating to extend the time to perfect the appeal, exceeded their powers ; and that the respondent was not bound by the stipulation. This is no longer an open question in this court. In the case of Struver v. Ocean Ins. Co. ( 9 Abb. Pr., 23 ; S. C., 2 Hilt., 475), this identical question has been passed upon. The court there held that if the attorneys admitted due service of a notice of appeal, it amounted to a waiver of the objection that the notice of appeal

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was not served in time. It seems to me that the principle involved in the case cited and the one now under consideration are identical. It is a stipulation in both cases. In the one case it is a waiver of a default already made, and in the other it is an agreement that they will waive the default and accept due service of the notice of appeal after the statutory time has expired.

The motion is granted with costs, unless the appellant desires to perfect his appeal by service of the .notice upon respondent; in which case, upon payment of the costs of this motion, he is allowed, within ten days ’ from service of a copy of this order, to serve the same nunc pro■ tunc.