Masor v. Jacobus — 84 N.Y.S. 270

Majority

p. 270

MASOR v. JACOBUS et al.

(Supreme Court, Appellate Term.

June 22, 1903.)

Headnote

1. Appeal—Order—ITotice—SuppicrsNCY.

A sufficient notice of appeal from an order was not rendered ineffectual because it contained a notice that appellant, intended to bring up for review another order piade in the action.

2. Orders—Appealable.

An order of the Special Term of the' City Court denying a motion by appellant to compel respondent to accept service of a notice of appeal is appealable under Code Civ. Proc. § 3189, allowing appeals from interlocutory judgments and orders at Special Term of the City Court.

Appeal from City Court'of New York, Special Term.

Action by Barnet Masor against William Jacobus and another. From an order denying a motion to compel plaintiff to accept service of a notice of appeal, defendant Jacobus appeals. Reversed.

Argued before FREEDMAN, P. J., and GILDERSLEEVE and MacLEAN, JJ.

Mitchell R. Erlanger, for appellant.

Henry Kuntz, for respondent.

It is unnecessary to recite the history of this case leading up to the order from which the defendant Jacobus appealed. The only question for this court to determine upon, this appeal is whether or not the plaintiff’s attorney was justified in returning the notice of appeal served by the defendant Jacobus herein.

p. 271

If so, the order appealed from denying defendant’s motion to compel the plaintiff’s attorney to accept such service was correct.

The order appealed from was entered on April 9, 1903, and the notice of appeal contained all the recitals necessary to effectuate an appeal from such order. It also contained a notice to the effect that the appellant intended to bring up for review an order made herein on March 30, 1903. This notice of appeal was returned by plaintiff’s attorney upon the sole ground that it contained such notice. Whether or not the insertion of such notice was sufficient to enable the court to review upon appeal the order therein mentioned need not be considered now. Its insertion did not render the notice of appeal void, nor ineffectual to bring up for consideration and decision the order of April 9, 1903. The question as to whether or not that order is an appealable one can best be determined when the appeal from that order is heard. The order from which this appeal is taken is clearly an appealable one under section 3189 of the Code of Civil Procedure, and the plaintiff’s ground for refusing to accept service of a notice of appeal therefrom was untenable, and the order denying defendant’s motion to compel him to accept service was error.

Order reversed, with costs and disbursements, and motion granted. All concur.