Roberts v. Davids — 19 N.Y. Sup. Ct. 394

Majority

p. 394

RICHARD W. ROBERTS, Respondent, v. WARREN DAVIDS and ELIAS H. MARSHALL, Appellants.

Headnote

Appeals from Justices’ Oo-'M'ts — neglect to serve notice on adverse pa/rty — cannot be supplied und&r Oode, § 1308.

Section 1303, of the Code of Civil Procedure, providing that where the appellant serves notice of appeal on the clerk or adverse party, and neglects, in other respects, to perfect his appeal, the court may permit the omission to be supplied, applies only to appeals mentioned in the twelfth chapter of the Code, and does not apply to appeals from Justices’ Courts.

Appeal from an order of the County Court of Kings county dismissing the appeal herein, and denying an application for leave to supply appellants’ omission to serve a notice of appeal on the adverse party.

Hewry G. Atwater, for the appellants.

James J. Gray, for the respondent.

The plaintiff recovered a judgment against the defendants before a justice of the peace, on the 23d February, 1877. On the same day a notice of appeal to the County Court was served on the justice who rendered the judgment and his costs paid. At the same time there was served on the justice an undertaking, duly approved, to stay proceedings upon appeal. No notice of the appeal was ever served on the respondent. The case was noticed for trial in April, 1877, and was called in May, 1877. The respondent then moved to dismiss the appeal, and the defendants moved for leave to serve the notice of appeal. At the time the motion was heard the Code of Remedial Justice was in force; without this Code it was well settled that no jurisdiction was acquired by the County Court of the appeal until all the statute requisites for an appeal had been complied with. Failure to serve notice of his appeal on the justice of the respondent, or to pay the justice’s costs or his fee for return have all been held fatal to the appeal. The Code of Remedial Justice contained this section (1303): “ When the appellant seasonably and in good faith serves the notice of appeal, either upon the clerk or upon the adverse party, or his attorney, but omits, through mistake, inadvertence, or excusable neglect to serve it upon the other, or to do any other act necessary to perfect the appeal or to stay the execution of the judgment or order appealed from the court in or to which the appeal is taken, upon proof by affidavits 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.”

The appellant claims relief under this section. We think the section has no reference to appeals from Justices’ Court. • It applies only to appeals mentioned in the twelfth chapter of the new Code of Civil Procedure, which does not include appeals from justices’ judgments. The section of the old Code, as to appeals from Jur-tiees’ Court, are retained by chapter 417, Laws of 1877.

Order affirmed, with costs and disbursements.

Gilbert and Dykman, JJ., concurred.