Monarch Mining Co. v. Laughlin — 146 N.Y.S. 1068

Majority

p. 1068

MONARCH MINING CO. v. LAUGHLIN et al.

(Supreme Court, Appellate Term, First Department.

April 14, 1914.)

Headnote

Courts (§ 190*)—Municipal Courts—Appeal—Action on Undertaking— Sufficiency of Complaint.

Judgment on the pleadings should be rendered for defendant in an action against a surety on an undertaking on appeal from the Municipal Court to the Appellate Term, where the complaint does not allege compliance with Code Civ. Proc. § 1309, prohibiting such an action until 10 days have expired since the service upon appellant’s attorney and the surety of a written notice of entry of judgment or order affirming the judgment appealed from or dismissing the appeal and providing the manner of such service, etc.

[Ed. Note.—For other cases, see Courts, Dec. Dig. § 190.*]

Municipal Court, Borough of the Bronx, Second District.

Action by the Monarch Mining Company against William Laughlin and Edward T. Mulligan. From a judgment for plaintiff, defendant Mulligan appeals.

Reversed, and new trial granted.

Argued March term, 1914, before SEABURY, LEHMAN, and BI-JUR, JJ.

Philip J. Dunn, of New York City, for appellant.

Clarence A. Appleton, of New York City, for respondent.

This action was brought against a surety on an undertaking on appeal from the Municipal Court to this court. As the complaint does not allege compliance with section 1309 of the Code of Civil Procedure, the judgment on the pleadings should have been for the defendant, instead of the plaintiff.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.