Wasserman v. Maslon

Judgment and order unanimously reversed upon the law, with thirty dollars costs to appellants and plaintiff’s complaint dismissed, with appropriate costs in the court below.

No action may be maintained upon an undertaking given upon an appeal until ten days have expired since the service upon the attorney for the appellants and upon the sureties on the undertaking, of a written notice of the entry of a judgment or order affirming the judgment appealed from or dismissing the appeal. (Civ. Prac. Act, § 161.) Compliance with this section is a condition precedent and a complaint which does not set forth the above facts does not state a cause of action. (Monarch Mining Co. v. Laughlin, 146 N. Y. Supp. 1068 ; Porter v. Kingsbury, 71 N. Y. 588 ; Hill v. Warner, 39 App. Div. 424 ; Rae v. Beach, 76 N. Y. 164 ; First Bank of Notasulga v. Casualty Co. of America, 176 App. Div. 109 .) The complaint here alleges the service of the order dismissing the appeal upon the appellants more than ten days before the commencement of the action, but does not allege such service upon the surety.

All concur; present, Cropsey, MacCrate and Lewis, JJ.