People ex rel. Collins v. Ahearn — 136 A.D. 452

Majority

p. 452

The People of the State of New York ex rel. James G. Collins, Relator, v. John F. Ahearn, as President of the Borough of Manhattan, City of New York, and Others, Defendants.

First Department,

January 28, 1910.

Headnote

Appeal — notice — supplying defect.

•Where a notice of appeal was returned merely- on the ground .that the quality and weight of the paper on which it was written ¿lid not comply with section 796 of the Code of Civil Procedure, the court, in the discretion, conferred by . section 1803 of the Code of Civil Procedure, will permit the defect to be corrected and a second notice served nunc pro tunc.

Motion to allow a notice of appeal to be served upon the attorney for the relator.

Theodore Oonnoly, for the motion.

Herbert O. Smyth, in opposition.

It is not disputed but that on December 31, 1909, the defendant served a notice of appeal upon the attorney for the relator and on the same day filed a copy of the notice of appeal witli the county clerk.' -The notice served on thé attorney for the relator was returned upon the ground that it did not comply with section J96 of the Code of Civil Procedure in that the paper upon which such notice of appeal was typewritten was not of the quality and weight required by such section.

The appellant, therefore, seasonably and in good faith served a notice of appeal, both upon the clerk and the attorney for the adverse party, the service upon the attorney for the adverse party not being.in the form required by the Code of Civil Procedure. The objection taken to this notice of appeal was extremely technical, and as a case is made out within section 1303 of the Code of Civil Procedure, the motion should be granted and the defendant allowed to serve a notice of appeal upon the relator nunc pro tunc as of the 31st of December, 1909.

Present Íngeaham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ.

Motion granted as stated in opinion. Settle order'on notice.