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Ford v. Lyons

2 N.Y. St. Rep. 103 Court N.Y. Gen. Term Decision date 1886-06-01 English

Delivered by Churchill, J.

Contents

Majority

p. 103
Ann Ford, as administrator, respondent, v. Jeremiah C. Lyons, appellant.
(Supreme Court, General Term, First Department,
Filed June 1, 1886.)

Headnote

1. Practice—Court cannot shorten time given by rules 40 and 41 to serve case—Code or Civil Procedure, section 17.
The court at special term has no power to require the printed cases to be served before the time fixed by the rules of general practice, No. 40 and 41. See Code of Civil Procedure,- section 17.
3. Same—Stay on appeal—How terminated—Code or Civil Procedure, section 1352.
The stay created by giving a proper undertaking on appeal to the general term is given by the Code and is beyond the power of the special term to terminate.
Appeal from an order directing appellant to print, file and serve case on appeal from judgment.
Alex. Thain, for appellant, Jeremiah C. Lyons.
James P. Niemann, for respondent, Ann Ford.

The order appealed from, made April 17th, 1886, required the appellant to file with the clerk of the general term and to serve on the respondent’s attorney the copies of the printed case required by the rules, on or before the 23d day of April, 1886, and upon his failure so to do provided that the stay created by the undertaking given upon the appeal and duly approved and filed, should cease. The next term of the general term of the first department was appointed for May 3, 1886. By rules 40 and 41 the appellant had till April 24th, or eight days before the term, in which to file and serve the papers. The special term could not deprive the appellant of the right given him by the rules. Code Civil Procedure, § 17; Battershall v. Davis, 23 How., 383 . Such shortening of the appellant’s time was not necessary to protect the respondent, since if the former failed to serve the papers within the time required by the rules, the latter could move on short notice to dismiss the appeal. General Rule

p. 104
41; third general term rules, first department, adopted January _4th, 1878. The stay created by giving a proper undertaking on appeal to the general term was given by the Code, and was beyond the power of the special term to-terminate. Code of Civil Procedure, § 1352.

The order appealed from should be reversed, with usual costs and disbursements.

Daniels and Brady, JJ., concur.