Murray v. Hathaway — 7 N.Y.S. 915

Majority

p. 915

Murray v. Hathaway.

(Supreme Court, General Term, Third Department.

September 21, 1889.)

Headnote

Appeai—Dismissal—Failure to Pile Bond.

Where appellant is not moving his case, and the 60 days within which, under Code Civil Proc. N. Y. § 1341, he may perfect his appeal have not expired, a motion to dismiss the appeal, on the ground that no appeal-bond has been filed, will be denied.

Action by George W. Murray against Samuel W. Hathaway. Plaintiff moves to dismiss appeal.

Argued before Learned, P. J., and Fish and Putnam, JJ.

L. R. Patterson, for appellant. L. L. Davis, for respondent.

We think the appeal should not be dismissed for the defendant’s failure to file an undertaking. Although an undertaking seems to be required, (Code Civil Proc. §§ 1340, 1341, 2260,) yet as the defendant has 60 days to perfect his appeal, which time has not expired, andas he is not moving the case, his time to file the undertaking has not yet elapsed, and hence the motion on that ground is premature.

But section 1304 Code Civil Proc., provides that an appeal cannot be taken from an order made by a judge out of court unless entered in the clerk’s office, and this order, it appears, was not so entered. Therefore, on this ground, the appeal should be dismissed. It seems, however, that the plaintiff has been irregular in proceeding under the order before its entry, and may, therefore, have misled the defendant as to its entry. We think the proper disposition of the case is to dismiss the appeal, without costs. This will not prevent the defendant, if he desires, from taking a new appeal, and giving the undertaking required by the Code. All concur.