Kerner v. Steck — 30 N.Y. St. Rep. 223

Majority

p. 223

Barbara M. Kerner, App’lt, v. John Steck, Resp’t.

(Superior Court of Buffalo,

General Term,

Filed March 24, 1890.)

Headnote

1. Appeal—Notice to limit time to—Stay.

Where plaintiff’s proceedings have been stayed, the entry of judgment and service of notice thereof is a nullity, and defendant’s time to appeal is not limited thereby. Such notice is a proceeding in the action, and is in violation of the stay.

2. Same. ■

The court may properly set aside such notice, and in doing so necessarily sets aside the admission of due service thereof.

Appeal from order denying motion to set aside a notice of appeal.

Simon Fleischman, for app’lt; Armstrong & Duchwith, for resp’t.

The plaintiff at a trial term recovered a verdict for $850, and the defendant made a motion on the minutes of the judge for a new trial, which was denied. Thereupon all proceedings on the part of the plaintiff were stayed sixty days after the entry of the judgment to enable the defendant to make a case and exceptions on appeal. The plaintiff entered judgment and served a notice of such entry on the defendant’s attorneys, who gave an admission of due and personal service of such judgment. Within the time limited by the order staying proceedings the defendant served a notice of appeal, and the plaintiff moved to set it aside on the ground that the thirty days allowed to take an appeal after the notice of the entry of judgment had expired. The special term denied the motion, from which order the plaintiff appealed.

It is claimed that the stay ordered by the trial court did not affect the plaintiff’s right to serve a notice of the entry of judgment, and that the service of such notice was not a proceeding in the action, but notice of the procedure. We cannot agree with the learned counsel in this view of the law. The notice had the effect of limiting the defendant’s time to appeal as one of the steps provided by the Code to be taken in an action. Section 1851. The supreme court, in White v. Klinken, 16 Abb. Pr., 109 , decided the precise question involved here, and held that after the plaintiff had been stayed the entry of judgment and no

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tice of the entry of judgment, in violation of the order staying all proceedings, was a nullity and did not limit the defendant’s time to appeal, and that such a notice was a proceeding in the action.

The special term, in the order appealed from, on motion of the defendant, set aside the notice of entry of judgment and declared the same null and void. This notice of the entry of judgment was made in violation of the order staying proceedings, and, we think, the court properly set it aside. Bagley v. Smith, 2 Sand., 651.

In setting aside the notice, necessarily the admission of service of judgment and notice of entry was set aside.

This is a case where the court could properly grant the defendant relief against an inadvertent admission of due personal service of the notice, and order the parties to the position they occupied before such notice and admission were given.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Beckwith, Oh. J., concurs; Hatch, J., not sitting.