Hand v. Callaghan — 33 N.Y.S. 176

Majority

p. 176

(12 Misc. Rep. 88.)

HAND v. CALLAGHAN.

(Common Pleas of New York City and County, General Term.

March 15, 1895.)

Headnote

1. Appeal—Dismissal—Notice.

Under Code Civ. Proc. § 780, relating to notices of motion, a motion to dismiss an appeal must be made on notice of eight days.

3. Same—District Courts of New York City.

Motions to dismiss appeals from tho district courts of New York City for defects in the appeal, or service of notice, or for failure to file the return, must be made at the special term of the court of common pleas.

3. Same—Notice of Argument.

Failure of appellant to serve a notice of argument is not of itself a ground for dismissing the appeal.

Appeal from district court.

Action by Elwood S. Hand against Francis Callaghan. There was a judgment in favor of plaintiff, and defendant appeals. Plaintiff moves to dismiss the appeal.

Denied.

Argued before DALY, C. J., and BISCHOFF and PRYOR, JJ.

Chas. De Hart Brower, for appellant.

Charles A. Walson, for respondent.

Motion by respondent to dismiss appeal for (1) failure to serve a proper notice of appeal; (2) failure to file a return ' as required by law; (3) failure to serve a notice of argument. The appeal is from a judgment of a district court rendered May 10, 1894, and the judgment was satisfied on execution. The notice of appeal was served June 2, 1894, and the return of the justice was filed November 13, 1894. Neither party has placed the cause on the general term calendar, and the motion to dismiss the appeal is made on five days’ notice. The motion must be denied because a notice of motion of five da3rs is insufficient. Code, § 780; Salters v. Sheppard, 11 N. Y. Wkly. Dig. 189. An additional reason for denying it is that motions to dismiss appeals from district courts for defects in the appeal or service of notice thereof, or for failure to file return, must be made at the special term. Rules 9 and 11 of the Common Pleas; Rules of Courts of Record, 1888, p. 374'. Failure of appellant to serve notice of argument is by itself no ground for dismissing an appeal. Respondent, having given notice of argument, .should have placed the cause on the general term calendar, and brought the appeal to a hearing. Notice of argument may be given for the additional general term in April next, and a note of issue filed therefor.

This motion is denied, with $10 costs to appellant to abide event of appeal. All concur.