Slater v. Grannemann — 124 A.D. 98

Majority

p. 98

John F. Slater, Appellant, v. Louise Grannemann, Personally, and as Administratrix, etc., of Christian Grannemann, Deceased, and Others, Respondents.

Third Department,

January 15, 1908.

Headnote

Practice — notice of entry of judgment —• appeal — lis pendens.

A-notice .of entry of judgment is ineffectual when the copy of the judgment attached is not signed by the clerk, and it is error to cancel a lis.pendens on the ground that plaintiff’s time to appeal had expired because of the service of such a notice.

p. 99

Appeal by the plaintiff, John F. Slater, from an order of the Supreme Court, made at the Saratoga Special Term and entered in the office of the clerk of the county of Schenectady on the 17th day of. June, 1907, directing a' cancellation of the notice of the pendency of the action.

Henry H. Miller, for the appellant.

A. J. Dillingham, for the respondents.

Defendant was entitled to an order canceling the notice of pend-ency of action if the time of the appellant had expired for appealing from the judgment of nonsuit. (Code Civ. Proc. § 1674.) The notice served for the purpose of limiting the time for appeal purported to have attached to it a copy of the judgment which was not signed by the clerk. Mason v. Corbin ( 29 App. Div. 602 ) and Good v. Daland ( 119 N. Y. 153 ) show that such notice was not effectual to limit the time in which to appeal. The court should not cancel the notice of pendency in a case like this until after final judgment, and untithe plaintiff’s right to appeal from the judgment has expired. The order appealed from should, therefore, be reversed, with ten dollars costs, and the motion to cancel the lis pendens denied, with ten dollars costs.

All concurred.

Order reversed, with ten dollars costs and disbursements, and the motion to cancel lis pendens denied, with ten dollars costs.

Cases cited

Good v. Daland 119 N. Y. 153 N.Y. 1890-01-21 p. 99