Black v. Maitland — 71 N.Y. St. Rep. 669

Majority

p. 669

Truman A. Black, App’lt, v. Thomas A. Maitland, Resp’ts.

(Supreme Court, Appellate Division, Second Term,

Filed January 14, 1896.)

Headnote

Appeal—Justice’s court.

Where a justice, whose judgment is appealed from, fails to state to the appellant the correct amount of the cost included in the judgment, and the appellant for that reason does not pay them all, the appellant, under section 3049 of the Code, may be permitted to correct the omission.

Appeal from an order of the county court, denying a motion to dismiss the appeal, and permitting the defendant to supply an omission to pay the costs of a justice’s court.

Frederick Willets, for pl’ff;

Murray, Bennett & Ingersoll, for def’t.

This appeal is from an order of the county court of Westchester county, which denied a motion made by the plaintiff to dismiss an appeal taken by the defendant from a judgment rendered by a justice of the peace, made upon the ground that defendant had omitted to pay the costs awarded in the judgment, and which granted leave to defendant to pay such costs. It is provided by section 3047 of- the Oode of Civil Procedure that at the time of serving a notice of appeal on the justice, the appellant must pay to him the cost included in the judgment. In this case it appears that at the close of the trial the plaintiff’s attorney paid to the justice the costs included in the

p. 670

judgment; that defendant immediately served a notice of appeal to the county court, and asked the justice what costs he had to pay in order to take the appeal. The justice answered, “Two dollars,” which sum was thereupon paid, Upon learning that this sum did not include all the costs, the defendant’s counsel thereafter tendered to the justice and to the plaintifi’s attorney a sum equal to the amount of costs awarded in the judgment, neither of whom would, however, accept it. Section 3049 of the Code provides that:

“Where the appellant, seasonably and in good faith, serves the notice of appeal, upon either the justice or the respondent, but omits, through mistake, inadvertence, or excusable neglect, to serve it upon the other, or to do any act necessary to perfect the appeal, the appellate court, upon proof .by affidavit of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires.”

This provision was first embraced in 1880. Prior thereto there was no power in the courts to relieve a party appealing from a judgment rendered by a justice of the peace in a civil action from any omission or neglect to do any act necessary to perfect ■his appeal. Eldridge v. Underhill, 17 Hun, 241 ; Thomas v. Thomas, 18 id. 481. Under the section quoted the court may now, however, upon such terms as are just, permit the appellant to supply such omission, and may grant such amendments as are ^necessary to perfect an appeal already taken. Gutbrecht v. Railroad Co., 28 Hun, 497 ; Thorn v. Roods, 47 id. 433; 14 St. Rep. 345 ; Mann v. Dennis, 20 St. Rep. 195 . The cases cited by the appellant have no application to the question here presented.

The order should be affirmed, with $10 costs and disbursements.

All concur.