Livingston v. New York Elevated Railroad

On the 8th day of May, 1890, the appellant (plaintiff) recovered at the special term a judgment against the defendants, in part for a sum of money awarded as damages to certain premises belonging to her. On the same day what purported to be a copy of the judgment was, with what «vas intended to be a notice of the entry thereof, served on the defendants’ attorneys. The time to appeal, had it been duly limited, would have expired on the 7th day of J une, 1880, and on that day the defendants’ attorneys undertook to make service of a notice of appeal, but that attempt was held by the general term to be ineffectual, and hence no service was made. 11 N. Y. Supp. 359 . That decision was affirmed by the court of appeals. 26

The ground upon which the decision was based is that the second notice of appeal is good, because the copy of the judgment and the notice of the entry thereof, served on the defendants’ attorneys May 8, 1890, were not sufficient to impair the defendants’ right to appeal, irrespective of the mere question of time. Section 1351 of the Code of Civil Procedure provides that an appeal “must be taken within thirty days after service upon the attorney for the appellant of a copy of the judgment or order appealed from, and a written nonce of the entry thereof.” Strict compliance with this provision is required to operate a limitation of the time allowed, and so much do the courts favor the right of appeal that they have gone to great length in upholding the most technical objections to the sufficiency of the papers served pursuant to the section of the Code referred to. The learned judge in the court below cited in his opinion several of the adjudications of the court of appeals on the subject, and among them In re New York Cent. & H R. R. Co., 60 N. Y. 112 ; Kelly v. Sheehan, 76 N. Y. 325 ; Good v. Daland, 119 N. Y. 153 , 23 N. E. Rep. 474 . In the ease at bar the objections taken to the paper are that the copy of the judgment lacked the attestation of the clerk, and that the notice of entry did not specify the place of entry to be the office of the clerk of the city and county of New York, but merely stated that the judgment was entered with the clerk of the supreme court. These defects, at first blush, do not appear to be very substantial; but, when it is considered that a right of appeal may be destroyed in the most meritorious case by a mere accident, and that the court lias no power to relieve, it is altogether equitable to insist that the party seeking to enforce the technical advantage shall be held to strict technical practice himself, and the very objections now pointed out by the defendants have been deemed cogent enough to prevent the limitation of the time to appeal. Good v. Daland, supra; Valton v. Society, 19 How. Pr. 515 , approved in Re New York Cent. & H. R. R. Co., 60 N. Y., supra. The learned judge below was therefore correct in holding that the right to appeal had not been limited, and that the notice of appeal served on the 16th January, 1891, was in time.

But the respondents claim that the appellant is in some way estopped from denying that the time to appeal had expired, and call attention to various statements made in affidavits used in the proceedings to avert the consequences of the default in serving the notice of appeal within 30 days from May 8, 1890, and which have been above referred to. In these affidavits it is stated that the respondents’ time to appeal expired on the 7th of June, but we do not think such statements constitute, under all the facts before us, either binding admissions, or anything else that fairly should be construed to deprive the respondents of the right- to appeal. They were made in view of the fact that a notice of appeal, wbicli they claimed to be regular and in time, had been served, and were founded upon that belief, and were made

We are of the opinion, however, that the order made by the learned judge is too broad, and that the execution should not have been set aside absolutely, and with costs against the plaintiff, but that proceedings upon it should have been stayed merely; for when it was issued, in December, 1890, the plaintiff had a clear legal right to enforce her judgment by appropriate process. The court had adjudged her to be entitled to the money. There was no appeal pending, and no impediment to its collection; for the undertaking filed July 2, 1890, without an appeal actually taken, did not in any way supersede the right to realize on the judgment. But, when the appeal was taken in January, it was proper to apply to the court to stay the execution on such terms as might be considered just. The order must therefore be modified so that proceedings under the execution be stayed until the determination of the appeal, without costs, and as thus modified it will be affirmed, without costs.

Van Brunt, P. J., concurs.

I also concur. There is no here of the mere waiver of an irregularity. The defendants waived nothing. They simply insisted that they had appealed according to law, when in fact they had not. The plaintiff failed to set the defendants’ time to appeal running by reason of her failure to serve a particular paper precisely as required by statute. The defendants’ acknowledgment of the receipt of that paper, and their expression of belief that their time to appeal was thereby limited, do not alter the legal effect of the plaintiff’s failure to do what was requisite to set the time to appeal running.