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Culliford v. Gadd

4 Silv. Ct. App. 622 Court Court of Appeals, Decision date 1892-10-11 English

Contents

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p. 622
Elizabeth A. Culliford, Respondent, v. Montgomery Gadd, Appellant.
Court of Appeals,
October 11, 1892.

Headnote

Appeal. Stipulation.—Where, in pursuance of a stipulation which recited that an undertaking given on an appeal to the court of appeals had been cancelled, an order was entered which gave plaintiff leave to file another undertaking, to perfect the appeal, within five days, and provided that the new undertaking should have, when filed, the same force- and effect as though it had been filed and served when the first undertaking was given, and that, if not filed as specified, the appeal should be dismissed, the case was placed, by the stipulation and order on the same footing as though no undertaking had been given, and the appellant had the right, within the statutory time for appealing, to-take and perfect another appeal.
Motion to strike cause from calendar.
F. Spiegelberg, for motion.
Sidney Harris, opposed.

—The plaintiff is concluded by the order of this court, entered April 9, 1892, upon the stipulation of the:

p. 623
parties, which recites that the undertaking given to perfect the appeal had been cancelled and annulled in the superior court, which, it appears from the papers, was also done by-consent, and which granted the plaintiff leave to file another “ undertaking to perfect the appeal ” within five days, and to have, when filed, the same force and effect as if it had been filed and served when the first undertaking was given; and the order provided that if not filed and served within that time, that the appeal should be dismissed, with costs, which was subsequently done.

The case was thus placed by the act of the parties upon the same footing as if no undertaking had been given to perfect the appeal, and the appellant had the right, within the statutory time for appealing, to take and perfect another appeal, as his first attempt to avail himself of this right had proved ineffectual. Langley v. Warner, 1 N. Y. 606 ; Blake v. Lyons & Fellows Man. Co., 75 Id. 611 ; Good v. Daland 119 Id. 153.

The motion must be. denied, with ten dollars costs.

All concur.

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