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Gilpin v. Savage

138 A.D. 416 Court Fourth Department, Decision date 1910-05-04 English

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p. 416
Richard S. Gilpin, Appellant, v. William M. Savage, Respondent.
Fourth Department,
May 4, 1910.

Headnote

Appeal to Court of Appeals — undertaking.— power of court to require respondent to accept service. . .
Where the time to appeal from a judgment for the plaintiff has not expired -by reason of his failure to serve a copy of the judgment with notice of entry, the h court may require the plaintiff to accept servibe of an undertaking given on an appeal to the Court of Appeals. J
Appeal by the plaintiff, Richard S. Gilpin, from an order of the Supreme Court, made at the Erie Special Term and entered in the office of the clerk of the county of Erie on the 13th day of December, 1909, requiring the plaintiff to accept service of a certain undertaking.-
Order affirmed, with ten dollars costs and disbursements, on opinion of Lambert, J.-, delivered at Special Term.
Frank C. Ferguson and Aaron Fybush, for the appellant.
John T. Ryan, for the respondent. .

All concurred.

The following is the opinion delivered at Special Term:

The. undisputed proof contained in the affidavits presented on this motion shows that no true copy of the judgment appealed from, with written notice of entry, hag been served upon the attorney for the defendant, up to the present time, and the running of the time limited for appealing has not . yet commenced. (Good v. Daland, 119 N. Y. 153 . See Harmon v. Van Ness, 56 App. Div. 160 ; Talman v. Barnes, 12 Wend. 227 .)

The notice of appeal to the Court of Appeals is ineffectual for any purpose until the required undertaking has been given and a copy thereof served as required by section 1326 of the Code. (Architectural Iron Works v. City of Brooklyn, 85 N. Y. 652 .)

The plaintiff, having returned the copy of the undertaking served, will not now bo heard to say that the appeal became effectual by

p. 417
that service so as to deprive this court of jurisdiction of this application, but is ineffectual to perfect the appeal to the Court of Appeals.

I believe this court has authority to require the plaintiff to accept service of the undertaking where such service^ and the service of the notice of appeal was titnely, but the copy of the undertaking served was returned on the ground that “ no appeal to the Court of Appeals is pending in the action mentioned in said undertaking * *

Motion granted, with ten dollars costs.

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