Kelly v. Sheehan — 76 N.Y. 325

Majority

p. 325

Patrick Kelly, Appellant, v. Cornelius Sheehan, Respondent.

Headnote

A notice of the entry of judgment, which is not indorsed or subscribed both with the name of the attorney and his office address or place of business, as required by the general rules of practice (rule 2), is irregular and ineffectual to limit the time for appealing.

A party undertaking to limit the time for appealing is held to strict practice.

(Argued February 4, 1879;

decided March 18, 1879.)

Appeal from order of the General Term of the Supreme Court, in the third judicial department, dismissing an appeal to it from a judgment in favor of defendant.

A copy of the judgment, with notice of entry thereof, signed by defendant’s attorney, but without the addition of his office address, or place of business, was served by mail May 25, 1878. The notice of appeal was served on the clerk July 25th, and on defendant’s attorney July 2G, 1878.

T. McManus, for appellant.

The notice of entry of judgment was a nullity; it should have been signed with the name of the attorney and his office address or place of business. (Rule 2, General Rules of Practice; Yorks v. Peck, 17 How., 192 .) A party undertaking to limit the time to appeal must be held to strict practice. ( 60 N. Y., 112 .)

Charles S. Lester, for respondent.

If the notice of entry of judgment in this case was regular, the notice of appeal was served on the defendant’s attorney, one day too late, and the appeal was properly dismissed. But the appellant takes the point that the notice of entry of judgment was irregular and void, because it was not indorsed, or subscribed with the name of the defendant’s attorney and his office address, or place of business, as required by Rule 2 of the general rules of practice. We think the point well taken.

p. 326

There being no power in the court to relieve a party who fails to take, an appeal in clue time, however meritorious his excuse, the party undertaking to limit the time is held to strict practice.

The order of the General Term should be reversed, with costs.

All concur, except Folger, J., absent at argument.

Order reversed.