Troppman v. Weigart

The amended decree of the Surrogate’s Court, of which appellant, George Troppman, seeks a review on this appeal, among other things judicially settled the accounts of Franciska Hourt as the administratrix of the estate of George Heldman, deceased, adjudged that deceased left an estate of inheritance, that Appolonia Weigart was “the only heir at law” of deceased, and directed the administratrix to pay forthwith the balance of the estate, the amount of which was fixed and determined thereby, to the attorney in fact of the said Appolonia Weigart. As stated in the opinion of this court

“Decedent’s only property was a deposit to his credit in the Buffalo Savings Bank. The principal issue litigated in the proceedings was whether he-had made a valid gift either causa mortis or inter vivos of this deposit for the benefit of one George Troppman, an illegitimate son of decedent, after the payment therefrom of all expenses. This issue was found adversely to-the claim that there was any such gift.”

The appeal was -dismissed, for the reason that appellant, as administratrix, was not a “party aggrieved” by the decree. In the Matter of Heldman, Dec’d, 151 App. Div. 234 , 135 N. Y. Supp. 143 . Troppman was not in the first instance made a party to these proceedings-by service of a citation on him, nor did he by order obtain leave to intervene therein. After the issues had been referred by order of the Surrogate’s Court to a referee to hear and determine all questions arising upon the settlement, at the beginning of the hearing before the referee, Mr. Mueller, the attorney for the administratrix appeared as attorney for Troppman, and this entry appears in the minutes of the referee:

“John F. Mueller,' as attorney for the administratrix, Franciska Hourt, also appears for George Troppman, of Sehneitenbaeh, Germany.”

[ 1 ] The report of the referee also recites that Troppman appeared by this attorney. Such an appearance by attorney in open court without objection by any other party was effectual to make him a party to the proceedings.

[2,3] The motion to dismiss this appeal is made on the ground that it was not.taken within the time prescribed by law. It is conceded that a copy of the amended decree was in fact served upon Mueller, the attorney for the administratrix and Troppman, in August, 1910, with a notice of entry thereof. This notice was as follows:

“Notice of Entry.

“Take notice that an order of which the within is a copy was duly entered in the office of the clerk of the Surrogate’s Court of the county of Erie, N. Y., on the 15th. day of August, 1910.

“Dated at Buffalo, N. Y., August 16th, 1910.

“To John F. Mueller, Attorney for Franciska Hourt.

“Harry Forrester, Attorney for Appolonia Weigart

“Office and post office address: 845 Ellicott Sq., Buffalo, N. Y.”

The administratrix then appealed to this court, with the result above stated. After the decision of that appeal, Troppman, by his attorney, sought to serve upon the attorney for the next of kin a notice of appeal on his behalf from the same decree, together with notice of exceptions and undertaking. Nearly two years had then elapsed from the time Troppman’s attorney had been served with the copy of the decree and the notice of entry thereof in the form above set out. The attorney for the next of kin refused to accept service of the papers, and at once returned them, with the statement, in effect, that the time within which such appeal could be brought' had long since expired.

It is not contended by appellant’s attorney that there is any irreg

“Within thirty days after service upon the appellant or upon the attorney, if any, who appeared for him in the Surrogate’s Court, of a copy of the decree or order from which the appeal is taken, and a written notice of the entry thereof.”

Neither this section, nor general rule 2, in terms requires the notice to be formally addressed to the person upon whom service is to be made. I fully recognize the general principle that a party, moving to dismiss an appeal on the ground that the time to appeal had expired before service of the notice of appeal, stands upon a strict legal right, and must be held to strict practice. Kelly v. Sheehan, 76 N. Y. 325 ; Good v. Daland, 119 N. Y. 153 , 23 N. E. 474 ; Kilmer v. Hathorn, 78 N. Y. 228 ; Fortsmann v. Shulting, 107 N. Y. 644 , 14 N. E. 190 ; Matter of N. Y. C. & H. R. R. Co., 60 N. Y. 112 . But I think strict practice was in effect followed in this case.

In the case of Falker v. New York, West Shore & Buffalo Rwy. Co., 100 N. Y. 86 , 2 N. E. 628 , a motion to dismiss the appeal was opposed on the ground that the notice of entry of the judgment appealed from was not subscribed with the office address nor directed to appellant’s attorneys. The court says:

“There is no rule covering such a case. The notice was served at the proper office and delivered to the proper person, and was retained, and as no one could have been prejudiced by the omission to insert in the address the names of all the partners in- the firm of attorneys, we think the service should be held sufficient. Although strict practice must be pursued to limit the time to appeal, and even a technical irregularity in giving the required notice wifi be considered, still there must be some irregularity; and a mere inaccuracy in the notice, which violates no rule of practice and is in itself immaterial, will not be sufficient to avoid it.”

So in the case at bar no one was, or could be, prejudiced by the omission to add the words indicating that Mueller" had also appeared as attorney for Troppman. Mueller had in fact appeared for him, else he was not a party to the proceedings. That he had appeared as attorney for Troppman, as well as for the administratrix, could not have escaped his recollection. As an attorney he had in person been served with a copy of the decree and notice of entry thereof. This service notified him as attorney that the decree had been entered, and, as a necessary incident, acquainted him with the purpose of the

Among other cases where unimportant defects and omissions have been held insufficient to avoid the resultant effect of due service are Guarantee Trust & Safe Deposit Co. v. Philadelphia, Reading & New England R. R. Co., 160 N. Y. 1 , 54 N. E. 575 ; Evans v. Backer, 101 N. Y. 289 , 4 N. E. 516 ; People ex rel. Wallkill Valley R. R. Co. v. Keator, 101 N. Y. 610 , 3 N. E. 903 ; Baker v. Hatfield, 29 Hun, 670 . In the opinion of the court given in the Guarantee Trust & Safe Dep. Co. Case, above cited, this statement appears:

“While it has sometimes been held that strict compliance with section 1325 and similar statutes is required to limit the time of a party to appeal, still we think that the statute should not be so rigidly construed as to nullify its object or to make it difficult of application. The evident purpose of that section was to enable parties to avoid undue delays and to promptly secure the final determination of their cases.”

I think the service of copy decree with the noticeoof entry thereof as made was sufficient for the purpose of limiting the time within which Troppman, as well as the administratrix, could appeal to 30 days after such service. To hold otherwise would, as it seems to me, be by an arbitrary construction to nullify the Code provisions referred to. This appeal not having been taken till long after the 30 days had expired, the motion to dismiss the appeal should be granted, with $10 costs and disbursements. All concurred.