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Bushby v. Berkeley

134 N.Y.S. 563 Court N.Y. App. Div. Decision date 1912-03-29 English

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p. 563
BUSHBY v. BERKELEY.
(Supreme Court, Appellate Division, First Department.
March 29, 1912.)

Headnote

Appeal and Errob (§ 154[1] )—Orders Appealable—Right to Appeal— Waiver.
Where defendant’s motion to extend his time to serve a proposed case on appeal was denied, with leave to renew, and defendant in fact renewed his motion, as distinguished from an application for a mere re-argument of the first motion, he thereby waived the right to appeal from, the original order.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 957-969j Dec. Dig. § 154.*]
Action by James C. Bushby against Lancelet M. Berkeley. From, an order denying defendant’s motion to extend his time to serve a proposed case on appeal, he appeals. On motion to dismiss. Granted-
See, also, 139 App. Div. 909 , 124 N. Y. Supp. 1111 .
Argued before INGRAHAM, P. J., and McLAUGHEIN, CEARKE, SCOTT, and DOWLING, JJ.
M. D. Steuer, for the motion.
L. M. Berkeley, opposed.

The order appealed from, entered on the 5th of February, 1912, denied the defendant’s motion to extend his time to

p. 564
serve a proposed case on appeal, with leave to renew7. Under the leave thus reserved, the defendant renewed his motion, which was on the 29th of February again denied, and an order entered. In pursuance of that order, the defendant, on March 6th, served his case on appeal, to which, on March 11th, the plaintiff served amendments, with notice of settlement for March 25th. On March 14-th the defendant served a notice of appeal from the order of February 5th, denying his motion; and the plaintiff now moves to dismiss that appeal.

The defendant claims that his second motion, denied on February 29th, was a reargument of the first motion, and not a renewal of the motion under the leave contained in the order of February 5th. But it is clear from the record that it was a renewal of the motion, and that he, having acted upon the favor granted by the first order, and renewed his motion, which was again heard and determined against him, prevented an appeal from- the first order.

The motion to dismiss the appeal from the order of February 5th must therefore be granted, with $10 cost$.