Nelson v. Tenney — 113 N.Y. 616

Majority

p. 616

Alfred Nelson, Executor, etc., v. Sutherland Tenney, Assignee, etc., Impleaded, etc.

Headnote

Where no undertaking has been filed or served upon appeal to this court, the Supreme Court has no power to-grant an order allowing the appellant to perfect his appeal by filing an undertaking.

(Argued March 5, 1889;

decided March 12, 1889.)

Motion to dismiss appeal from a judgment of the General Term of the Supreme Court in the first judicial department, entered upon an order made July 9, 1886, which affirmed a judgment in favor of plaintiff, entered upon trial at Special Term, and to strike cause from calendar on the ground that the appeal has never been perfected. No undertaking was filed or served with the notice .of appeal. The Supreme Court, on motion, granted an order allowing the appellant to perfect his appeal by giving an undertaking.

Frank Forbes for motion.

John Lindley opposed.

Agree to grant motion on ground that the Supreme Court had no power to grant an order allowing the appellant to perfect his appeal by filing an undertaking, and no reason is shown to tMs court excusing the delay.

All concur.

Motion granted.