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Rohr v. Linch

137 N.Y.S. 752 Court Argued October term, 1912, before SEABURY, GUY, and BI-JUR, JJ. Decision date 1912-10-23 English

Delivered by GUY, J.

Contents

Majority

p. 752
(78 Misc. Rep. 45.)
ROHR v. LINCH.
(Supreme Court, Appellate Term, First Department.
October 23, 1912.)

Headnote

Appeal and Error (§ 348*)—Time fob Taking.
Service by defendant on plaintiff of an order denying a new trial, after verdict for plaintiff, does not limit the time for appeal by defendant from the order; service by the loser not excusing failure to serve by the winner.
fEd. Note.—For other cases, see Appeal and Error, Cent. Dig. §§• 1900-1904; Dec. Dig. § 348.*]
•For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
Appeal from City Court of New York, Special Term.
Action by William H. Rohr against George W. Linch, receiver of the Second Avenue Railroad Company. From an order refusing to settle a proposed case on appeal, defendant appeals.
Reversed, and motion granted.
Argued October term, 1912, before SEABURY, GUY, and BI-JUR, JJ.
Charles E. Chalmers, of New York City, for appellant.
Abraham M. Pariser, of New York City, for respondent.

Plaintiff recovered a verdict on February 29, 1912, on which judgment was entered on March 2, 1912, and a copy of the judgment, with notice of entry, was duly served on the same day. On March 4th defendant entered, and on March 4th or 6th he served a copy of the usual order denying, his motion for a new trial, which recited that it was entered on motion of the plaintiff’s attorney. This order was never served upon defendant, but was only served by defendant upon plaintiff. On March 30, 1912, defendant served a notice of appeal from both judgment and order.

The time to serve a notice of appeal from the judgment expired on March 12th (Code, § 3190); but the time to appeal from the order denying a motion for a new trial had not expired, because that order was never served upon the defendant- (Code, § 3190; Baylies on New Trials and Appeals, 173; Harnett v. Westcott [Super.] 2 N. Y. Supp. 10 ; Kolatch v. Wiltchik, L. J., March 16, 1909). Service by the loser upon the winner does not limit the former’s time to appeal. Kilmer v. Hathorn, 78 N. Y. 228 , 231, 232; Smith v. Havens Relief Soc’y, 115 App. Div. 185 , 187, 100 N. Y. Supp. 932 ; McGruer v. Abbott, 47 App. Div. 191 -193, 62 N. Y. Supp. 123 .

Order reversed, and motion granted, with $10 costs and disbursements of the appeal. All concur.

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