Rannow v. Hazard — 61 N.Y. Super. Ct. 217

Majority

p. 217

RUDOLPH RANNOW, Appellant v. EDWARD C. HAZARD, et al., Respondents.

Headnote

Practice—Notice of appeal from an order must state the substance of the order correctly.

On the 30th day of April, 1892, an order was duly entered in this action (ex parte) declaring the plaintiff’s “case on appeal” abandoned. The plaintiff obtained an order to show cause why the order of 30th of April declaring “ the appeal ” abandoned should not be vacated. This motion was heard by Judge McAdaji, and on the 23d day of May, 1892, an order was entered denying the motion to vacate the order of April 30th. The plaintiff served a notice of appeal from an order denying a motion to vacate an order declaring the “ appeal herein ” abandoned, and this is the appeal before the court.

Held, there was no such order granted as the notice of appeal described (declaring the appeal abandoned). The original order of April 30, 1892, declared the case on appeal abandoned, which left the plaintiff free to prosecute the appeal on the judgment roll. This order was duly made and entered, and has not been appealed from. There was no order made

p. 218

in this action declaring the appeal abandoned, and no order entered denying a motion to vacate such an order.

Held also, on the merits, that the plaintiff had not sufficiently excused his default.

Before Freedman, P. J., Dugro and Gildersleeve, JJ.

Decided July 5, 1892.

Appeal from an order denying plaintiff’s motion to vacate an order declaring case on appeal abandoned.

Frederick Hemming, attorney, and Waldorf H. Phillips of counsel, for appellant.

Hugh Porter, attorney and of counsel, for respondents.

Plaintiff’s motion was to vacate the order declaring the appeal abandoned. There was no such order. The order of April 30, 1892, declared the case on appeal abandoned which left the plaintiff free to prosecute his appeal upon the judgment roll. It was duly made and entered and has not been appealed from.

Aside from these considerations the plaintiff was bound, upon the motion to vacate the order as entered, to sufficiently excuse his default, but upon this point the affidavits submitted by both parties presented a conflict which was determined in favor of the defendants. Under all the circumstances disclosed we cannot say that the plaintiff established the point by a preponderance of evidence.

The order denying the motion to vacate should, therefore, be affirmed, with $10 costs and disbursements.

Dugro and Gildersleeve, JJ., concurred.