Blydenburgh v. Cotheal — 4 N.Y. 418

Majority

p. 418

Blydenburgh vs. Cotheal.

Headnote

Fractions of a day are not in general regarded except for the purpose of preventing injustice.

Therefore, an appeal perfected before the judgment roll is filed, but on the same day, is regular.

B. W. Bonney, for the respondent,

moved to dismiss the appeal, on the ground that it was taken too soon. The court below gave judgment on the first day of ¡November last; but the costs were not adjusted and the judgment roll filed .until the fourth day of that month. The appeal was taken on that day before the hour when the costs were adjusted and the roll filed.

J. W. Blydenburgh, in person opposed the motion.

As a general rule the court does not inquire into the fractions of a day, except for the purpose of guarding against injustice. (Small v. McOhesney, 3 Cowen, 19. Chite v. Chite, 3 Benio, 263.) We think that a sufficient answer to this motion.

Motion denied.