In re the Estate of Darragh — 19 N.Y. St. Rep. 207

Majority

p. 207

In the Matter of the Estate of Catherine Darragh, Deceased.

(Surrogate's Court, New York County,

Filed November 28, 1888.)

Headnote

Practice—Application por leave to pile and serve undertaking-on APPEAL SHOULD BE MADE TO SURROGATE’S COURT—CODE ClV. PRO., SEC. 1303.

Notice of an appeal was duly served herein. The application by'the contesting appellant for leave to file and serve an undertaking on the appeal may be made to the surrogate’s court under Code Civil Procedure, section 1303. Following Parks v. Murray, et al., 109 N. Y., 646 , and 15 N. Y. State Rep., 199.

James P. Campbell, for Michael J. Doherty, Esq., A. Oldren Salter, for Henry Darragh.

This is an application by the contestant appellant for leave to file and serve an undertaking on appeal herein._ The notice of appeal was duly served. The application is opposed by the special guardian on the ground that it should be made to the general term.

Section 1,303, Code of Civil Procedure, provides that “ where an appellant seasonably and in good faith serves the notice of appeal either upon the clerk or upon the adverse party or his attorney, but omits, through mistake, inadvertence or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal, or to stay the execution of the judgment or order appealed from, the court in or to which the appeal is taken, upon proof by affidavit of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires.” This section is made applicable to an appeal taken from a decree of this court by section 2,575.

This court has full jurisdiction to entertain this application. In the following cases an appeal was taken to the general term, and an application under section 1,303 (or 327 old Code) made at special term and entertained. Mills v. Thursby and others, 11 How., 129 ; N. Y. Cent. Ins. Co. v. The Nat. Pro. Ins. Co., 10 How. P., 344.

And it was expressly held in Arnoux v. Homan 32 How. Pr., 382 , that the court below could entertain such application.

The case of Parks v. Murray, et al., 109 N. Y., 646 , 15 N. Y. State Rep., 199, cited by the special guardian is not in point. There the appeal to the court of appeals was perfected by filing and serving the notice of appeal and the requisite undertaking; and after the appeal was perfected (sec. 1,326), the supreme court made an order directing plaintiff to file a new undertaking. Held, the motion should have been made in the court of appeals and not in the supreme court.

In the case under consideration the appeal has not been perfected. Having no doubt of the power of this court to^ grant the application, there simply remains the question of whether it ought to be granted on the facts as stated by petitioner, which are not controverted. The appellant, I think, has acted in good faith, and his omission to file and serve the undertaking is excusable neglect.

Motion granted.