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Gilpin v. Savage

124 N.Y.S. 875 Court N.Y. App. Div. Decision date 1910-05-04 English

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p. 875
(138 App. Div. 416.)
GILPIN v. SAVAGE.
(Supreme Court, Appellate Division, Fourth Department.
May 4, 1910.)

Headnote

1. Appeal and Errob (§ 348[1] )—Time fob Appeal—Commencement.
Until a copy of the judgment appealed from with written notice of entry has been served upon appellee, the running of the time limited for appealing does not commence.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1900-; Dec. Dig. § 348.*]
2. Appeal and Ebbob (§ 387*)—Service of Undertaking Pending Appeal.
Where the respondent returns an undertaking on appeal to the appellant, he cannot thereafter claim both that the service of the undertaking so far perfected the appeal as to deprive the lower court of jurisdiction to pass on a motion in the case, and also that the service was so defective as to render the appeal ineffectual.
[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 387.*]
Appeal from Special Term, Erie County.
Action by Richard S. Gilpin against William M. Savage. Judgment for plaintiff (60 Mise. Rep. 605, 112 N. Y. Supp. 802 ) was affirmed by the Appellate Division ( 132 App. Div. 948 , 118 N. Y. Supp. 1108 ), and defendant appealed to the Court of Appeals. On motion in the trial court to require plaintiff to accept service of an undertaking on appeal. The motion was granted, and plaintiff appeals.
Affirmed.
See, also, 126 App. Div. 924 , 111 N. Y. Supp. 1120 .
The following is the opinion delivered at Special Term:
The undisputed proof contained in the affidavits presented on this motion shows that no true copy of the judgment appealed from, with written notice of entry, has been served upon the attorney for the defendant up to the present time, and the running of the time limited for appealing has not yet commenced. Good v. Daland, 119 N. Y. 153 , 23 N. E. 474 . See Harmon v. Van Ness, 56 App. Div. 160 , 67 N. Y. Supp. 561 ; Talman v. Barnes, 12 Wend. 227 . The notice of appeal to the Court of Appeals is ineffectual for any purpose until the required undertaking has been given and a copy thereof served as required by section 1326 of the Code. Architectural Iron Works v. City of Brooklyn, 85 N. Y. 652 .
The plaintiff, having returned the copy of the undertaking served, will not now he heard to say that the appeal became effectual by that service so as to
p. 876
deprive this court of jurisdiction of this application, but is ineffectual to perfect the appeal to the Court of Appeals. I believe this court has authority to require the plaintiff to accept service of the undertaking where such service, and the service of the notice of appeal was timely, but the copy of the undertaking served was returned on the ground that “no appeal to the Court of Appeals is pending in the action mentioned in said undertaking. * * * ” Motion granted, with $10 costs.
•Argued before McLENNAN, P. J., and SPRING, WILLIAMS,. KRUSE, and ROBSON, JJ.
Aaron Eybush (Erank C. Eerguson, of counsel), for appellant.
John T. Ryan, for respondent. 1

Order affirmed, with $10 costs and disbursements, on opinion of Lambert, J., delivered at Special Term.

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