Horton v. Boyle — 42 N.Y. St. Rep. 29

Majority

p. 29

Horton, App’lt, v. Boyle et al, Resp’ts.

(New York Common Pleas,

General Term,

Filed December 7, 1891.)

Headnote

Appeal—Dismissal.

Plaintiff appealed from a judgment dismissing the complaint, with costs, but thereafter paid the judgment and served notice of withdrawal, but did not tender costs therewith. On a subsequent motion to dismiss, he asked until the next term to prepare the appeal papers. Held, that the appeal was properly dismissed ; that if he desired to prosecute the appeal he should have proceeded with diligence.

p. 30

Motion to dismiss appeal

Joseph M. Williams, opposed; De Witt C. Morrell, for motion.

This case was tried April 10,' 1891, and the complaint dismissed. Notice of appeal was served May 12th. After several motions, one for further time to make case, another for stay of proceedings, and another to set aside the judgment, which were denied, appellant on September 12th gave notice of withdrawal of appeal under instructions from his client (who had paid the judgment for costs) to proceed no further. But costs were not tendered with such notice of withdrawal and respondent gave notice of argument, and has now served notice of motion to dismiss the appeal. The appellant seems to have no answer to the motion, but asks until next term to prepare his appeal papers. In view of the fact that he has never prepared a case, there does not appear to be any good faith in the application. If he desired to prosecute an appeal he should have proceeded with some diligence.

Motion granted, with ten dollars costs.

Bischoff, J, concurs.