Harnett v. Westcott

This case comes before the court (1) on a motion made by the plaintiff to dismiss defendant’s appeal from the judgment on the ground that at the time of the service of the notice of appeal the defendant’s time to appeal from the judgment had expired, and (2) on plaintiff’s appeal from an order staying all proceedings to enforce the judgment until after the determination of defendant’s appeal, which was from the judgment and an order denying defendant’s motion for a new trial.

The plaintiff’s right to have defendant’s appeal from the judgment dismissed on the ground that it was not taken in time, depends upon the sufficiency of the notice of entry of judgment which was' served.

Section 1351 of the Code of Civil Procedure prescribes that an appeal to the general term must be taken within thirty days after service upon the attorney for the appellant of a copy of the judgment or order appealed from, and a written notice of entry thereof.

The issues having been tried at a jury term, and a verdict having been rendered for the plaintiff, the appropriate judgment thereon was entered March 24, 1888, and on the same day a copy of such judgment was duly served on defendant’s attorney personally. The copy judgment so served filled one side of a sheet of white paper, and securely attached to the back of such sheet was another sheet of colored paper of the same size. The outside of the colored sheet contained at the top thereof the following-notice, viz.:

“Take notice, that the within is a copy of a judgment this day duly made in this action, and entered in the office of the clerk of this court.

“Yours, &c.,

“IRA D. WARREN,

“ Plaintiff's Attorney.

“ To E. Luther Hamilton, Esq., Defendant's Attorney. “New York, March 24, 1888.

And as folded up and served with the copy of the judgment, the colored sheet further contained on its outside, and in a plain and conspicuous manner, the following endorsement, viz.:

NEW YORK SUPERIOR COURT.

Richard V. Hartnett against

Robert E. Westcott, as President of Westcott’s Express Company.

Copy.

Judgment and Notice of Entry.

Ira D. Warren,

Attorney for Plaintiff,

No. 170 Broadway, Hew YorJc City, H. Y.

Under precisely the same indorsement contained on a duplicate copy, the defendant’s attorney gave the following admission, viz.:

“Due and timely service of a copy of the within judgment is hereby admitted.

“ Dated New York, March 24, 1888.

“E. LUTHER HAMILTON,

“ Attorney for Defendant.”

Upon these facts it is clear that if the notice of entry of judgment so served with the copy of the judgment was sufficient notice, the defendant’s time to appeal from the judgment expired April twenty-third, and the service of the notice of appeal on May fourth was too late so far as the judgment is concerned.

The defendant insists, however, that the notice of entry of judgment was insufficient, because it did not contain the office and post-office address of plaintiff’s attorney, as required by rule 2 of the rules of the courts, and upon this point he cites Kelly v. Sheehan ( 76 N. Y., 325 ): Kilmer v. Hathorn (78 id., 228), and Forstmann v. Shulting ( 107 N. Y., 644 ; 11 N. Y. State Rep., 763).

On the other hand it has been distinctly held in Falker v. The N. Y., West Shore and Buffalo Railway Co. ( 100 N. Y., 86 ), and in The People etc., v. Keator (101 id., 610), that the notice of entry of judgment or order may be endorsed upon the copy judgment or order served therewith, and that if the papers so served, taken as a whole, contain an endorsement showing the name and address of the attorney of the prevailing party as prescribed by the rule, it is sufficient, because the rule does not require that these matters should be stated more than once upon the same paper or set of papers. Under these decisions the notice of entry of judgment, which was served in the case at bar, was sufficient, and, consequently, the service by defendant on May fourth of a notice of appeal from the judgment was too late. The motion to dismiss the appeal from the judgment must therefore be granted.

This, however, does not necessarily call for a reversal of the order granting the stay. The order denying defendant’s motion for a new trial was entered April 9, 1888, and the notice of appeal, although ineffectual as to the judgment, was good as to the order. The notice of appeal and the copy undertaking served therewith for the purpose of effectuating a stay, having been returned, with a notice, which claimed in effect that they had not been served in time for any purpose, and the plaintiff having threatened to enforce the judgment, the defendant had a right to apply by motion for a stay. A case was thus made out for the exercise of the discretion of the learned judge below, and upon all the facts disclosed, it cannot be maintained that such discretion was improperly exercised.

For the foregoing reasons I am of the opinion that plaintiff’s motion to dismiss defendant’s appeal should be granted in so far as said appeal relates to the judgment;, that the order granting a stay should be affirmed, but its operation limited to the appeal from the order denying motion for new trial; and that neither party should have costs against the other.

Truax, J., concurs.