Armstrong v. Heide — 99 N.Y.S. 817

Majority

p. 817

(49 Misc. Rep. 430.)

ARMSTRONG v. HEIDE.

(City Court of New York, Special Term.

February, 1906.)

Headnote

Appeal—N otice—Refusal to Accept.

Where a notice of appeal from a judgment dismissing the complaint is served, and includes therein an appeal from orders not affecting the final judgment, the time halving expired to appeal from such orders, a motion to compel the acceptance of the notice will be denied, where defendant returned it on the ground that the time had expired.

[Ed. Note.—For cases in point, see vol. 2, Cent Dig. Appeal and Error, §§ 2145-2147, 2171.]

Action by Paul Armstrong against Henry Heide. Judgment dismissing complaint. Motion by plaintiff to compel defendant’s attorney to accept notice of appeal.

Motion denied.

Affirmed by Appellate Term, 99 N. Y. Supp. 818 . See 90 N. Y. Supp. 372 ; 94 N. Y. Supp. 434 .

The plaintiff in his said notice of appeal also appealed from that part of an order theretofore entered imposing payment of all costs to date as a condition to granting a motion made by him for leave to amend his complaint, and from each and every part of an order, subsequently entered, denying his said mo

p. 818

tion for leave to amend his complaint for failure to comply with said condition. The time to take separate appeals from said orders had expired, and the notice of appeal was returned for that reason. Plaintiff claimed a right to appeal from said orders under section 1316 of the Code of Civil Procedure.

J. P. Solomon (John G. Ritter, of counsel), for the motion.

Amend & Amend (Alfred J. Amend and John E. Donnelly, of counsel), opposed.

If the plaintiff’s complaint failed to state a cause of action, it was beyond the power of the court, upon the trial, against the objection of the defendant, to supply the omission. That relief could be had at Special Term, upon such terms as the court might deem proper to impose. The orders of the Special Term, referred to in the notice of appeal, do not necessarily affect the final judgment; and the time to appeal therefrom separately having expired, it was improper to include an appeal therefrom in the notice of appeal from the final judgment. The defendant then had to return the notice or waive his objection thereto. I do not think the plaintiff was stayed from serving notice of appeal by reason of the nonpayment of the costs. The defendant had, by moving the cause for trial, waived his right to insist that the plaintiff was stayed from reviewing his affirmative action by reason of the nonpayment of costs theretofore imposed. The defendant’s practice in returning the notice of appeal, having support upon some of the grounds recited, this motion to compel an acceptance thereof is denied, with $10 costs.

Motion denied, with $10 costs.