Fairchild v. Edson — 62 N.Y. St. Rep. 548

Majority

p. 548

Charles S. Fairchild et al., Resp’ts, v. Margaret B. Edson, Impleaded, etc., App’lt.

(Supreme Court, General Term, First Department,

Filed October 5, 1894.)

Headnote

Appeal—Time.

Where no cross answers were served between the defendants, no service of a copy of the judgment by one defendant upon another is necessary to limit the time of appealing as between them.

Appeal from a j udgment in favor of plaintiff.

J. L. Cadwallader, for motion; T. Cleveland, opposed.

We are of the opinion that the time for the appellant to appeal has expired. More than thirty days have elapsed since the service upon her of the judgment by the prevail

p. 549

ing party, and such appellant has taken one appeal, which has been disposed of by the general term. 59 St. Rep. 163 ; 28 N. Y. Supp. 401 . She now proposes to appeal as against a co-defendant, claiming that her time to take such appeal has not expired, because such co-defendant has not served upon her a copy of the judgment. ■ We do not think that this is necessary, except in cases where cross answers have been served as between defendants, and judgment is entered in favor of one defendant and against another. Where the answers are served only upon the plaintiff, and a single judgment is entered, in which the plaintiff lias substantially prevailed, it would seem that the service of such judgment upon all the defendants sets running the statute of limitation in respect to appeals. This was done in the case at bar, and it would seem, therefore, that the present appellant cannot maintain her appeal as against a co-defendant, the time for appealing generally having expired. The case of Kilmer v. Hathorn, 78 N. Y. 228 , has been cited in support of the contention of the appellant herein. It is true that certain language' was used by the court which gives countenance to such contention, but no question similar to the ene now before the court was .involved or was determined by the court in that case. The motion should be granted, with $10 costs.

Cases cited

Kilmer v. Hathorn 78 N. Y. 228 N.Y. 1879-09-17 p. 549