People ex rel. Nicoll v. Asylum — 4 N.Y. St. Rep. 669

Majority

p. 669

The People ex rel. Hy. D. Nicoll v. Infant Asylum.

(Supreme Court, General Term, First Department,

Filed December 30,1886.)

Headnote

Appeal—When dismissed because copies oe case not pboperly served.

Where no properly certified copies of the case have been served and the papers served were returned with objections, on a motion to dismiss, the respondent is entitled to succeed unless appellant is relieved on terms.

p. 670

Motion to dismiss appeal.

Clark Bell, for motion; Cray & Davenport, opposed

The affidavits on the question whether or not the notices of appeal were served in due time are directly conflicting, and it is quite difficult to say which side is mistaken in that important fact. It is certain that the attorneys for the relator intended to comply and to serve notice in due season, and that he believed it to have been done, but whether such service was made or not was put in grave doubt by the affidavits on the other side. We are inclined to think under the circumstances that the better course is to regard the notice as having been properly served.

It appears that no properly certified copies of the case have been served, and that the papers served were returned with objections. On that branch of the motion the respondent is entitled to succeed unless the appellant is relieved on terms.

We think the motion should be granted unless duly certified copies of the case be served within ten days and ten dollars costs be paid. _