Murray v. Hathaway — 26 N.Y. St. Rep. 53

Majority

p. 53

George W. Murray, Resp’t, v. Samuel W. Hathaway, App’lt.

(Supreme Court, General Term, Third Department,

Filed September 21, 1889.)

Headnote

1. Appeal — Dismissal oe.

A motion to dismiss an appeal on the ground that the necessary undertaking has not been filed, is premature when made before the time to perfect the appeal has expired.

S, Same.

An appeal from an order made by a judge out of court will be dismissed where it appears that such order was not entered in the clerk’s office.

Motion to dismiss appear from finar order m summary proceedings ; ground of motion is no bond; answer is sixty days not yet elapsed; also the defendant has been removed from possession and no stay desired.

C. R. Patterson, for app’lt; L. L. Davis, for resp’t.

We think the appeal should not be dismissed for the defendant’s failure to file an undertaking. Although an undertaking seems to be required Code Civ. Pro. §§ 2260, 1340, 1341, yet, as the defendant has sixty days to perfect his appeal, which time has not expired, and, as he is not moving the case, his time to file the undertaking has not yet elapsed, and hence, the motion on that ground is premature. But § 1304 of the civil code provides that an appeal cannot be taken from an order made by a judge out of court, unless entered in the clerk’s office, and this order, it appears, was not so entered; therefore, on this ground, the appeal should be dismissed. It seems, however, that the plaintiff has been irregular in proceeding under the order before its entry, and may, therefore, have misled the defendant as to its entry.

p. 54

We think the proper disposition of the case is to dismiss the appeal without costs. This will not prevent the defendant, if he desires, from taking a new appeal and giving the undertaking required by the code.

Learned, P. J., and Fish, J., concur.