Wade v. Leyer — 63 N.Y. 318

Majority

p. 318

William Wade, Respondent, v. Anthony De Leyer, Appellant. The Same, Respondent, v. The Same, Appellant.

(Argued November 23,1875 ;

decided November 30, 1875.)

Headnote

An appeal to this court is perfected when a notice of appeal and proper undertaking is served, and it is the duty of the appellant to serve printed copies of the case within forty days thereafter (rule 7), and this although the sureties in the undertaking are excepted to, and proceedings for their justification subsequently taken.

An order denying a motion to open a default, and to set aside a judgment regularly entered thereon, because of laches on the part of the moving party, is not reviewable here.

These were motions to vacate orders entered under rule 7, dismissing the appeal. (Reported below, 8 J. & S., 541.) The facts appear sufficiently in the opinion.

Samuel Hand for motion.

Charles Blandy opposed.

In action number one judgment was entered against this defendant, in February, 1858, for $172, besides costs. And in action number two judgment was entered against the defendant, in May, 1858, for $611.81, besides costs. Both judgments were recovered by default, in the Superior Court of the city of New York. The defendant was examined' in proceedings supplementary to executions, instituted upon each of said judgments in 1861. And then, if not before, had knowledge of the existence of both judgments. In May last, motions were made at Special Term of the court to set aside the defaults and judgments in both actions, and for permission to defend both actions. These motions were denied, and defendant then appealed in each action to the General Term of the Superior Court, and the orders were affirmed ; and he then appealed in each action to

p. 319

this court. The notice of appeal to this court, with an undertaking in due form in each case, was served September 11,1875. The respondent excepted to the sufficiency of the sureties, and the sureties thereafter justified as required by section 341 of the ■Code; and the undertakings were approved October 16,1875. Notwithstanding the subsequent proceedings upon the justification .of the sureties, the appeal in each case was perfected when the notice of appeal, with a proper undertaking, was served on the eleventh day of September. (Code, §§ 334, 335; Thompson v. Blanchard, 2 N. Y., 561 .) Within forty days after that time it was the duty of the appellant to serve the printed copies of the ease, under rule 7. This he failed to do. And then, October twenty-third, under the same rule, respondent’s attorney gave him notice to serve the printed papers within ten days. This notice not having been complied with, respondent’s attorney entered an order under the same rule dismissing the appeals.

• So far as I can discover, the proceedings on the part of the respondent were regular. And the only other question is, whether the appellant should have relief as a matter of favor. And upon this branch of the case we should look into the merits of the appeals somewhat. The orders are clearly not appealable. The original motions were to open defaults and to set aside judgments taken and entered more than sixteen years before the motions wez’e made, and of which defendant had knowledge about fourteen years, at least. Such a motion is cleazdy within the discretion of the Supei’ior Court, and there can be no appeal to this court from .an order denying it. ( 41 N. Y., 358 .)

The motion in each case must be denied with ten dollars «costs.

All concur.

Motion denied.