Lydecker v. Gilchrist — 21 N.Y.S. 1124

Majority

p. 1124

LYDECKER v. GILCHRIST.

(Supreme Court, General Term, Second Department.

December 12, 1892.)

Headnote

Action by Maria Lydecker against Samuel Gilchrist. The complaint was dismissed in the county court of Rockland county, and an appeal taken to the general term, where the case was placed on the May calendar. At that time, the appeal having been noticed for argument, and the appellant having failed to make and serve the case on appeal, it was stipulated that he should nave 30 days in which to prepare two printed cases on appeal, and that, in case of his failure so to do and submit the papers on appeal within that time, the appeal should be dismissed. and the judgment affirmed on the stipulation. He failed to comply with the stipulation, and consequently the judgment was affirmed. The appellant moved in September to be relieved from bis stipulation, and to have the judgment of affirmance set aside, and to be allowed to submit his appeal on the ground that he was unable to procure a copy of the stenographer’s minutes of the testimony for the purpose of making up the case.

This is a motion to open a default taken against the plaintiff, who is the appellant, at the last general term of this court. The cause was tried first in a court of a justice of the peace, where the plaintiff obtained a substantial verdict. Upon a new trial in the county court the defendant obtained a verdict, and the plaintiff has appealed from the judgment entered thereon. We think the default is excused, and that the plaintiff is entitled to have the case examined upon this appeal. The motion should therefore be granted, with $10 costs to the respondent to abide the event.