Claflin v. Du Bois — 15 N.Y. St. Rep. 963

Majority

p. 963

Horace B. Claflin et al., App’lts, v. James G. Du Bois, Resp’t.

(Supreme Court, General Term, First Department,

Filed May 18, 1888.)

Headnote

Notice of appeal—Service on attorney after time—Power of court to order—Code Civ. Pro., § 1303.

The notice of appeal herein.had been filed in time with the clerk. The failure to serve the notice of appeal in time on the attorney of the respondent was caused by the mistake or misunderstanding of the persons to whom their service was entrusted. Held, that the court had power to permit a copy of the notice of appeal to be served upon the attorney for the successful party in the action, although the time specified for that purpose had previously expired.

Appeal from an order permitting the service of a notice of appeal from a judgment, and of exceptions, and of the defendant’s proposed case on appeal.

S. F. Kneeland, for app’lts; Marsten Niles, for resp’t.

—In support of the motion resulting in the order, it was shown that a notice of appeal from the judgment had been served on the county clerk. That this was done within the time required by the Code. On the same day after the office of the plaintiff’s attorney was closed, two clerks of the defendant’s attorney threw into the office

p. 964

of the former, through an open transom over the door, a notice of appeal from the judgment and order, notice of exceptions, and the defendant’s proposed case on appeal, intending thereby to serve such papers on the plaintiff’s attorney.

This, of course, was no service of the papers unless in that manner they actually afterwards went into the hands of the plaintiff’s attorney. But the case remained in this condition for upwards of a month, when the defendant’s attorney was informed by a letter from the plaintiff’s attorney, that the time to appeal had expired and no papers had been received. And on the next day the plaintiff’s attorney was informed that the papers had been served and other copies were offered and afterwards sent to him with information of what had previously taken place in passing the copies through the transom, over the door of his office. These papers were refused and returned to the defendant’s attorney, and in the' succeeding month a motion was made on notice, for leave to serve copies of the same papers as had been passed in this manner through the transom. And that motion resulted in the order from which the appeal has been taken.

It is reasonably clear from what has taken place in this manner that the failure to serve the papers in time on the plaintiff’s attorney, was caused by the mistake or misunderstanding of the persons to -whom their service was entrusted.

And when that appears to be the fact by section 1303 of the Code of Civil Procedure, the court has been authorized, after the notice of appeal has been filed in time with the clerk, to permit a copy of the notice to be served upon the attorney for the successful party in the action, although the time specified for that purpose may have previously expired. The authority supplied by this section was ample to permit the order to be made from which the appeal has been taken. And the facts presented in support of the application, as it was made, with diligence, were sufficient to entitle the defendant to succeed as he did in the motion. The order should be affirmed with ten dollars costs, besides the disbursements.

' Van Brunt, P. J., and Brady, J., concur.