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Berliner v. Pequa Club Ass'n

76 N.Y.S. 671 Court N.Y. App. Div. Decision date 1902-06-06 English

Contents

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p. 671
BERLINER v. PEQUA CLUB ASS’N.
(Supreme Court, Appellate Division, First Department.
June 6, 1902.)

Headnote

1. Exceptions—Motion to File Nunc Pro Tunc.
A mere showing that, through inadvertence, an exception was not filed, is not sufficient to justify the granting of a motion for leave to file the exception nunc pro tune.
2. Same—Conditions—Payment of Costs.
Where an appeal has been taken in good faith, and appellant discovers that he has omitted to file an exception necessary to the presentation of the appeal, and his motion for leave to file the exception nunc pro tune is denied for failure of the moving papers to state sufficient reason for failure to file the exception, the movant should be permitted, on payment of costs, to renew his motion.
Appeal from special term, New York county.
Action by Harry Berliner against Pequa Club Association. Defendant had judgment ( 66 N. Y. Supp. 791 ), and plaintiff appealed. Pending the fixing of the case on appeal; plaintiff moved for leave to file an exception nunc pro tune. From an order denying the motion, movant appeals.
Affirmed, with leave to renew the motion.
Argued before HATCH, McLAUGHDIN, PATTERSON,. O’BRIEN, and INGRAHAM, JJ.
S. P. Cahill, for appellant.
R. E. Dwight, for respondent.

By the order appealed from, a motion of the plaintiff (appellant) to file an exception to the decision of the justice who tried the cause at special term was denied. Evidently the denial was placed upon the ground that no sufficient reason for the failure to file the exception was stated in the moving papers. All that appeared before the court was that through inadvertence the exception was not filed. The court below properly disposed of the motion.

It is apparent, however, that an appeal in this matter has been taken in good faith, and that the appellant has diligently proceeded to have the case made and settled, and has discovered the omission to file the exception necessary to the presentation of the appeal. Under the circumstances, we think that the order should be affirmed, with costs, but that the appellant should be permitted, on the payment of costs and disbursements of this appeal, to renew his motion upon proper papers for leave to file the exception.

Order affirmed, with $10 costs and disbursements, with leave to appellant, on payment of such costs, to renew on proper papers.