Milligan v. Cottle — 36 N.Y.S. 904

Majority

p. 904

MILLIGAN et al. v. COTTLE et al.

(Supreme Court, General Term, Fourth Department.

December 26, 1895.)

Headnote

Appeal—Action on Undertaking!—Notice op Affirmance.

Code Civ. Proe. § 1S09, providing that an action shall not be maintained on an undertaking given on appeal* until 10 days after “service upon the attorney for appellant of a written notice of the entry of a judgment or order affirming the judgment or order appealed from or dismissing the appeal,” is complied with by the service of a copy of the order of dismissal having on the back an indorsement by the clerk showing the date of its entry and the name of the attorney for the appellee.

Appeal from special term, Jefferson county.

Action by William Milligan, as administrator, and another, against Octavius 0. Cottle and another, to recover on an undertaking on appéal. Judgment for plaintiffs, and defendants appeal.

Affirmed.

Argued before MARTIN and MERWIN, JJ.

Edmund P. Cottle, for appellants.

Lansing & Lansing, for respondents.

On the 16th October, 1875, in an action in the supreme court wherein Moses Petrie, executor, etc., of David Petrie, deceased, and Fannie P. Cottle, administratrix, etc., of Joram Petrie, deceased, were plaintiffs, and William G-. Milligan and Jane Gr. Dann, administrators, etc., with the will annexed, of Catharine M. Lansing, deceased, and Robert Lansing, were defendants, a judgment was entered and docketed in the office of the clerk of Herkimer county, whereby the complaint of the plaintiffs therein was dismissed, and the said Robert Lansing recovered of the plaintiffs therein the sum of $250.35, costs, and the said Milligan and Dann recovered of the plaintiffs therein the sum of $81.01, costs. The plaintiffs in that action thereupon appealed to the general term, and, in order to stay execution on the judgment, the defendants in the present action and

p. 905

one McEwen, on the 29th December, 1875, duly executed an undertaking that the appellants on that appeal would pay all costs and damages that might be awarded against them on the appeal, not exceeding $500, and also that if the judgment appealed from, or any part thereof, should be affirmed, or the appeal be dismissed, the appellants would pay the amount directed to be paid by the said judgment, or the part of such amount as to which the said judgment should be affirmed, if it should be affirmed only in part, and all damages which should be awarded against the appellants on the appeal. Thereafter proceedings were taken towards the making and settlement of a case, and before it was finally settled, and on or about January 1, 1878, Moses Petrie died. Nothing further was done on,the appeal until April, 1893, when proceedings were commenced by Milligan, as surviving administrator of Catharine M. Lansing, deceased, to procure a dismissal of the appeal. This resulted in an order made by the general term on 28th November, 1893, “that the appeal in this action be, and the same is hereby, dismissed, without costs of appeal to either party thereto, and without costs of this motion to either party.” Robert Lansing, one of the defendants when the appeal was taken, died on the 4th October, 1878; and on the 10th October, 1878, his will was duly proved, and letters testamentary issued to John Lansing, executor therein named.

The present action is brought by Milligan, as surviving administrator, etc., of Catharine M. Lansing, deceased, and by John Lansing, as" executor, etc., of Robert Lansing, deceased, to recover on the undertaking the amounts awarded in the judgment appealed from to Milligan and Dann, as administrators, etc., and to Robert Lansing. It is claimed by the defendants that the appeal has not been dismissed as to Robert Lansing or the party representing his estate. The order of dismissal was made upon notice to all parties interested, whether parties to the suit or not. The executor of Robert Lansing was notified and appeared on the motion, and was interested in having a dismissal. The action was by creditors of Frederick Lansing, deceased, of whose estate Robert Lansing was executor; and it was claimed that Robert Lansing and Catharine M. Lansing held certain lands as trustees for the benefit of creditors of Frederick Lansing. The order to show cause upon which the motion was brought on was for a dismissal generally, and so was the order of dismissal. We must, we think, assume that the court intended an entire dismissal of the appeal. The question of laches was in the proceeding, as well as the right of a party under the provisions of section 1298 of the Code. Without doubt, the court had jurisdiction to make the order.

The main question on this appeal arises on the claim of the defendants that the plaintiffs did not, before they commenced this suit, give the notice required by section 1309 of the Code. By that section, as it stood when this action was commenced, it was provided that an action upon an undertaking like the one here involved shall not be maintained “until ten days have expired since the service upon the attorney for the appellant of a written notice of the entry of a judgment or order, affirming the judgment or order appealed from, or dismissing the appeal.” The order of dismissal was duly filed and

p. 906

entered on December 18,1893, and it is found that on the 19th December, 1893, a certified copy of the order was served on O. O. Cottle, attorney for the appellants on the appeal. The copy order so served was indorsed on the back as follows: “Supreme Court. Fannie P. Cottle; as Administratrix, and Another, v. William G. Milligan, as Administrator, and Another. Copy Order. C. J. Palmer, Survivor of Burrows & Palmer, Attorney for W. G. Milligan. Herkimer County Clerk’s office. Filed and entered December 18, 1893; D. M. Richardson, Deputy Clerk.” Service of a copy of the order so indorsed was admitted, in the following form: “Service of a copy of this order admitted Dec. 19,1893. O. 0. Cottle, Atty.,” etc. Mr. Cottle appeared for the plaintiffs therein on the motion to dismiss. The argument on the part of the appellants is addressed chiefly to the proposition that there was no sufficient notice of entry of the order. There was no specific notice signed by the attorney that the order had been entered, but the order as served bore a certificate of the clerk that it had been filed and entered. It was also indorsed by the attorney, so that it was, in effect, a notice from the attorney that the order had been entered. Written information was conveyed that fully answered all the requirements of the statute. We are referred to numerous cases involving the construction of notices given for the purpose of limiting the time to appeal. In such cases it is said that the notice must be regular in every respect, and the party must be held to strict practice. This rule does not apply to cases like the present, and that, very clearly, was the view taken by the court in Evans v. Back, 101 N. Y. 289 , 292, 4 N. E. 516 . A notice quite similar to the one here was held in Baker v. Hatfield, 3 Civ. Proc. R. 303, by the general term in the Second department, to be sufficient even to limit the time to appeal. We are inclined to the opinion that a sufficient written notice of the entry of the order was given, and that it inured to the benefit of both the present plaintiffs. FTo other question need to be specially considered. The judgment should, we think, be affirmed.

Judgment affirmed, with costs.

Cases cited

Evans v. Backer 101 N. Y. 289 N.Y. 1886-01-19 at 292, 4 p. 906