Lyddy v. Long Island City — 2 N.Y. St. Rep. 519

Majority

p. 519

Daniel R. Lyddy, App’lt, v. Long Island City, Resp’t.

(Court of Appeals,

Filed June 8, 1886.)

Headnote

Practice—Undertaking on appeal—Code Civ. Pro., §§ 798, 1335.

Where leave was granted appellant to file undertaking on appeal, nune pro tune, and he filed said undertaking and mailed notice thereof to respondent’s attorney on August 7, 1885, and the latter mailed notice of exception to sureties August 17. Seld, that the notice of exception was properly served within ten days, and appellant failing to cause his sureties to justify, his appeal must he dismissed.

N. T. Payne, for appl’t; James M. Lyddy, for resp’t.

Leave was granted the appellant to file an undertaking on this appeal, nunc pro tune, and such

p. 520

undertaking was filed, and notice thereof given to the respondent’s attorney, who resided at Long Island City, on August 7, 1885, by depositing the same, properly directed, in the post-office of the city of New York, where the appellant’s attorney resided.

The proof shows that the respondent’s attorney excepted to the sureties, and mailed notice thereof to the appellant’s attorney, addressed to him at New York city, in the post-office at Long Island City, on the 17th day of August, 1885. This notice was properly served within ten days, even without the allowance of the double time authorized in case of the service of the precedent notice by mail (section 798, Code of Civ. Pro.), and required the appellant to cause the sureties on his undertaking to justify, in order to retain his appeal. This he did not do. Code of Civ. Pro., § 1335.

The appeal should, therefore, be dismissed, unless the appellant perfect his undertaking within twenty days from the service of this order, and pay ten dollars costs of this motion.

All concur.