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Culliford v. Gadd

48 N.Y. St. Rep. 485 Court N.Y. Decision date 1892-10-11 English

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p. 485
Elizabeth A. Culliford, Resp't, v. Montgomery Gadd, App’lt.[1]
(Court of Appeals,
Filed October 11, 1892.)

Headnote

Appeal—Undertaking.
A stipulation of the parties recited that the undertaking given to perfect an appeal had been cancelled and annulled in the superior court, and an order was entered by consent granting plaintiff leave to file another “ undertaking to perfect appeal ” within five days and to have the same force and effect when filed as if it had been filed and served when the first undertaking was given; and the order provided that if not filed and served within that time that the appeal should be dismissed, which was done. Meld, that this was the same as if no undertaking had been given, and appellant had the right within the statutory time to take and perfect another appeal.
Motion to strike cause from calendar.
F. Spiegelberg, for motion; Sidney Harris, opposed.

The plaintiff is concluded by the order of this court, entered April 9, 1892, upon the stipulation of the parties, which recites that the undertaking given to perfect the appeal had been cancelled and annulled in the superior court, which, it appears from the papers, was also done by consent, and which granted the plaintiff leave to file another “ undertaking to perfect the appeal ” within five days, and to have, when filed, the same force and effect as if it had been filed and served when the first undertaking was given; and the order provided that if not filed and served within that time, that the appeal should be dismissed, with costs, which was,subsequently done.

The case was thus placed by the act of the parties upon the same footing as if no undertaking had been given to perfect the appeal, and the appellant had the right, within the statutory time for appealing, to take and perfect another appeal, as his first attempt to avail himself of this right had proved ineffectual. Langley v. Warner, 1 N. Y., 606 ; Blake v. Lyons & Fellows Man. Co., 75 id, 611; Good v. Daland, 119 id., 153; 28 St. Rep., 935 .

The motion must be denied, with ten dollars costs.

All concur.