McKinstry v. Sahler — 24 N.Y. Sup. Ct. 136

Majority

p. 136

ALFRED D. McKINSTRY, Appellant, v. GEORGE C. SAHLER, Respondent.

Headnote

Section 1303 of Code of Civil Proceáme — not applicable to appeals from a justice’s court.

Appeal from so much of an order of tbe County Court of Ulster county, as refused to dismiss an appeal in tbis action from a judgment of a justice's court, and as allowed the defendant to execute and file tbe undertaking required by section 356 of tbe Code of Civil Procedure, which be bad failed to do at tbe time of serving tbe notice of appeal.

Tbe court at General Term said : “ The only question here is whether section 1303 of tbe new Code, corresponding to section 327 of tbe old Code, and allowing amendments, when an appeal is taken in good faith, applies to an appeal from a justice’s court to a county court. It is decided in Roberts v. Davids (19 S. C. N. Y., 394) that it does not. And that part of tbe order appealed from should be reversed, with ten dollars costs and printing disbursements.”

Augustus II. Van Duren and J. W. Fiero, for tbe appellant. 8- F. Wood, for tbe respondent.

Opinion by

Present — Learned, P. J., Boardman and Bocees, JJ.

Tbe part of tbe order appealed from reversed, with ten dollars costs and printing disbursements, and appeal in County Court dismissed, with ten dollars costs.