Brown v. Hardie — 28 N.Y. Super. Ct. 678

Majority

p. 678

Kathleen E. Brown, plaintiff and respondent vs. Jason W. Hardie et al. defendants and appellants.

Headnote

1. An amendment of the judgment, in an action for the recovery of personal property and damages for the detention thereof, by allowing the defendant the alternative of returning the property claimed, is a material alteration, and the defendant is entitled to notice of the change having actually been made, or the entry of the new judgment. A mere notice of permission to amend having been given is not sufficient to start the running of the time for bringing an appeal.

2. An appellant, by not preparing and serving a case, is only cut off from using on the appeal any thing but the record containing the pleadings, verdict and judgment.

(Before Robektsoh, Ch. J., and Babboub, J.)

Heard August 30, 1866;

decided May 6, 1867.

This was an appeal from an order made at special term, dismissing the appeal of the defendants from a judgment entered in the action, for want of prosecution. The action was one for the recovery of personal property and damages for its detention. On the 27th day of April, 1866, judgment was entered for the value of the property as assessed by the jury, and the .damages awarded by them, without awarding any return of the property, in the alternative. It was claimed for the plaintiff that notice of such judgment was served the same day, on the attorney for the defendants. The defendants having obtained sixty days’ time to make a case for an appeal, the plaintiff moved, after the end thereof, for leave to amend his judgment by inserting an award of a return of the property claimed, as an alternative, which motion was granted, with leave to amend within five days, letting such judgment stand and operate as of the day of its first entiy. Eotice -of the entry of such order, and the order itself, were served on the defendants’ attorney. The judgment was amended within the time so allowed. The sheriff, about the 10th of June, 1866, levied on property of the defendants under the judgment so amended. And on the 31st day of July, 1866, the defendants filed and

p. 679

served notice of appeal and undertaking on the plaintiff’s attorney and the sheriff Mo case or exceptions were ever served. The affidavit of service of notice of the original judgment was made hy the plaintiff’s attorney^and stated that it was made by leaving it in the absence of the attorney for the defendants, in a conspicuous place in his office. Contradictory affidavits were read to prove the impossibility of such service.

A. Mclntire, for the appellants, defendants.

R. A. Pryor, for the respondent, plaintiff.

It would have been error in the

judgment, as it originally stood, unless modified, (Dwight v. Enos, 5 Seld. 470; Fitzhugh v. Wiman, Id. 559,) not to allow the defendants the alternative of returning the property claimed. The change in it by inserting such alternative was a material alteration, and the defendants were entitled to notice of the change having actually been made, or the entry of the new judgment. Mere notice of permission having been accorded to do so, was' not sufficient to start the running of the time for bringing an appeal. The appeal, therefore, was in time. The defendants, by not preparing and serving a case, were only cut off from using on the appeal any thing but the record containing the pleadings,- verdict and judgment. (Gen. Rule, 35.) The order dismissing the appeal was, therefore, erroneous, This view renders it unnecessary to inquire whether the special term had jurisdiction to make the order. Generally no such application is necessary, as general court rules 35 and 37 provide for the consequences of neglect. Only the general term has a right to give judgment for not serving papers, because the cause must be on its calendar before judgment can be rendered. (Gen. Rule, 42.)

The order appealed from should be reversed, without costs