New Rochelle Gas & Fuel Co. v. Van Benschoten

Majority

p. 477

New Rochelle Gas and Fuel Company, Respondent, v. Charles C. Van Benschoten, Appellant.

Headnote

Time to appeal — how limited—effect of enforcing a judgment on the right to appeal therefrom.

In order to limit the time to appeal a written notice of the judgment must be served upon the party who subsequently appeals, even where the appeal is taken from a judgment entered by the. appellant in his‘own favor.

The ■ fact that a plaintiff who recovered judgment for a less sum than that demanded in his complaint issues execution thereon and institutes sup piemen • tary proceedings, does not preclude him from appealing from a portion'of the judgment upon the ground that it is for an insufficient amount. ■ ■

Appeal by the defendant, Charles C. Van Benschoten, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 18th day of October, 1899, requiring the defendant to receive the plaintiff’s exceptions and notice of appeal from the referee’s report and judgment herein.

A copy of the judgment sought to be appealed from, together with a notice of the entry thereof, was served upon the defendant’s attorney by the plaintiff’s attorneys. No such service, however, was made by the defendant’s attorney upon the plaintiff’s attorneys.

William L. Snyder, for the appellant.

W. H. Van Benschoten [John M. Bowers with him on the brief], for the respondent.

The plaintiff recovered a judgment, on the report of a referee, for a sum less than that demanded in its complaint, and the said judgment having been entered, notice thereof was served on the defendant’s attorney, who admitted due service. The plaintiff issued execution and subsequently instituted supplementary proceedings. On July twelfth it filed exceptions and notice of appeal to thé Appellate Division from a part of the judgment, for .the reason that, it was not for a sufficient amount. The defendant’s attorney, on the same day, returned the notice on the ground that plaintiff’s time to appeal had expired. The plaintiff thereupon moved for an order compelling the defendant to accept the exceptions and notice of appeal. The court granted the motion and the defendant appeals. 1

Two grounds for this appeal are urged; one, that the time to appeal expired on February 17, 1899; the other, that the plaintiff had -taken the benefit of its judgment and thereby is concluded from taking any remedy inconsistent therewith.

As to the first ground, it was held in Rankin v. Pine ( 4 Abb. Pr. 309 ) that the service of a written notice of judgment, in order to limit the right of appeal, is necessary, even where the appeal ia taken from a judgment entered by the appellant himself. The Court of Appeals, in Matter of the N. Y. Cen. & H. R. R. R, Co. ( 60 N. Y. 112 ), cited this case with approval,-holding that even where a party appealing from an order enters the' order himself, the: time is not limited unless the prescribed notice be given, and that the party undertaking -to limit the time for appeal is held to strict practice. Similar doctrine is stated in Sommers v. Ditman ( 46 N. Y. Supp. 667 ).

As to the second ground, the case of Monnet v. Merz ( 17 N. Y. Supp. 380 ) is authority for the distinction that a party may not appeal from a judgment in toto after he has collected the amount of it, but may appeal for the purpose of modifying the judginent so as to increase -the amount of his recovery-to equal his demand. In Knapp v. Brown ( 45 N. Y. 207 ) it was held, Judge Grover writing, that when it appeared that in any event the plaintiff was entitled to retain the sum received, and that the only question that could be raised oil appeal was whether he was entitled to

p. 479

recover more, Ms act in demanding and recovering payment of the judgment was not inconsistent with his appeal.

It follows that the order was proper and must be affirmed.

All concurred..

Order affirmed, with ten dollars costs and disbursements.

Cases cited

Rankin v. Pine 4 Abb. Pr. 309 N.Y.C.P. p. 477
In re New York Central & Hudson River Railroad 60 N. Y. 112 N.Y. 1875-02-16 p. 477
Knapp v. Brown 45 N. Y. 207 N.Y. 1871-03-21 p. 477