Hyperlawhypertext legal database In re Braker's Estate 143 N.Y.S. 859

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In re Braker's Estate

143 N.Y.S. 859 Court N.Y. App. Div. Decision date 1913-10-17 English

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p. 859
In re BRAKER’S ESTATE. Appeal of FLETCHER.
(Supreme Court, Appellate Division, First Department
October 17, 1913.)

Headnote

1. Appeal and Ebbob (§ 373*)—Undertaking on Appeal—Necessity.
Under Code Civ. Proc. § 2577, providing that, to render a notice of appeal effectual for any purpose, except as provided, appellant must give a written undertaking for payment of costs as provided, the appeal was not effectual where no undertaking was given; the case not coming within any statutory exception.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2001-2004; Dec. Dig. § 373.*]
2. Courts (§ 202*)—Probate Appeal—Filins Papers.
The surrogate had no authority to relieve from a default in filing the papers on appeal to the Appellate Division.
[Ed. Note.—For other cases, see Courts, Cent. Dig. §§ 480-486; Dec. Dig. § 202.[1] ]
p. 860
In the matter 6f the estate of Conrad Mi. Braker. On motion to dismiss the appeal of one Fletcher. Motion granted.
Argued before Ingraham, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.
William P. S. Melvin, of New York City, for the motion.
Frederic W. Frost, of New York City, opposed.

[1] No undertaking having been given by appellant, the appeal was not effective under section 2577 of the Code of Civil Procedure. App'ellant was also in default for failing to file or serve papers upon which appeal was based. The answer is that the attorneys were acting under the advice and direction of a Philadelphia lawyer, and motion was made before the surrogate to open the default.

[2] The surrogate has no authority over default in filing of papers on appeal to this court; and, no excuse having been given for failure to file the printed papers on appeal, the motion is granted.