Mohr v. Dorschel — 16 N.Y. St. Rep. 766

Majority

p. 766

Conrad Mohr, App’lt, v. John Dorschel et al., Resp’ts.

(Supreme Court, General Term, First Department,

Filed June 19, 1888.)

Headnote

1. Judgment—Notice of entry—What sufficient under Code Oiy, Pro., § 1351.

A notice of the filing with the clerk of a judgment, accompanying the service of a judgment upon the defeated party, is tantamount to a notice of the entry of the judgment.

2. Same—Effect of admitting due and timely service.

The appellant having admitted due and timely service of the papers and of entry of the judgment, cannot afterwards claim that there was any irregularity in the mode of service or in the contents of the notices.

Appeal from an order of the special term, denying the defendant’s motion to compel plaintiff to accept notice of appeal to the general term.

Dennis A. Spellisy, for Resp’ts, Hays & Greenbaum, for Appl’t.

The appellant’s counsel claims, first, that the time for his appeal had not begun to run, because the respondent had not, with a copy of the judgment, served upon him a written notice of the entry thereof, under section 1351 of the Code, and that the respondent did not conform to rule 2 of the general rules of practice, because in the notice which he served, his office address or place of business was not given. Inspection of the case, however, shows that the appellant is estopped to raise either of these questions. It is true the respondent’s notice was that the judgment, a copy of which he served, had been duly filed, instead of entered in the office of the county clerk. When the judgment of dismissal of the complaint was served, the appellant’s attorney admitted in writing over his signature, “ due and timely service of a copy of the within judgment and notice of entry.” Upon the judgment for costs being served, the appellant’s attorney admitted due and timely

p. 767

service of a copy of that paper also. The appellant having thus admitted due and timely service of the papers and of the entry of the judgment dismissing the complaint, cannot be heard afterwards to claim that there was any irregularity in the mode of service or in the contents of the notices. Moreover, a notice of the filing with the clerk of a judgment accompanying the service of a judgment upon the defeated party is tantamount to a notice of the entry of the judgment.

An attorney can do no more than to file with the clerk the papers in the action, and the law immediately makes it the duty of the clerk, if the paper be a judgment, to enter it in the proper book provided for that purpose.

It follows that the order should be affirmed with costs and. disbursements.

Van Brunt, P. J., and Bartlett, J., concur.