Weinman v. Dilger — 46 N.Y. Super. Ct. 101

Majority

p. 101

JOHN WEINMAN, Respondent, v. JOHN DILGER et al., Appellants.

Headnote

Appeal—how discontinued.

An appeal is not discontinued as to the respondent, by the service of a notice of withdrawal, accompanied by a tender of costs to date ; the order of the court is necessary to accomplish this. The respondent in such case may obtain an order that the appeal be declared abandoned ; or he may proceed under General Bale 41, and Buie 4 of this court, if no printed case has been served, and alter the' appeal has been placed on the calendar, move for a dismissal thereof.

Before Sedgwick, Speir and Freedman, JJ.

Decided April 5, 1880.

Motion to dismiss appeal.

After the respondent had obtained judgment below, the appellant stayed proceedings upon "it, by giving the usual undertaking with two sureties. On their justification, one was held sufficient, and the other insufficient. The appellant obtained further time, in

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which to serve a new or further undertaking. On the last day of such time, appellant’s attorney served a notice, that “ the notice of appeal heretofore served in this action is hereby withdrawn.” At this time, a proposed case had been served and amendments had been proposed, but nothing more was done, after the notice that appeal was withdrawn; .$50, as costs on the appeal was tendered by the appellant. On notice and on affidavit of these facts, and also that no printed case had been served, an order was made at special term that this case be placed upon the general term calendar. The affidavit asked that it might be placed upon that calendar “in order to dismiss said appeal, in the regular way.”

The respondent now moves, upon notice, that the appeal be dismissed.

Hawkins & Cothren, for motion.

Anderson & Howland, opposing, for surety.

The notice that the appeal was withdrawn did not discontinue the appeal. An order was necessary to accomplish that, and the appellant had such rights, that the court; if applied to for an order of discontinuance, might have absolutely denied it or granted it in a modified form. The ordinary practice would have been to obtain an order that the appeal be declared abandoned, for this motion is not strictly grounded on the non-service of printed papers (Rule 41, amending Rule 50 of the general rules, and Rule 4 of this court). This would have been a mere form, inasmuch as the notice of withdrawal of appeal was an abandonment of the appeal by the appellant, although not a discontinuance of it, as to the respondent. The motion should therefore be granted. Of course, this decision does not affect the rights of the

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surety, if an action be brought against him on the undertaking, except so far as the ipsum factum affects it. Whether or not the dismissal of the appeal now made is within the meaning of the undertaking, will be determined in any action that may be' brought upon it.

The motion to dismiss is granted, with $10 costs of the motion, and the costs of the appeal, to the time of the order directing that the case be put on this -calendar.

Speir and Freedman, JJ., concurred.