Bushby v. Berkeley

134 N.Y.S. 563 | N.Y. App. Div. | 1912

Per Curiam:

The order appealed from, entered on the 5th of February, 1912, denied the defendant’s motion to extend his time to serve a proposed case on appeal, with leave to renew. Under the leave thus reserved the defendant renewed his motion, which was on the twenty-ninth of February, again denied, and an order entered. In pursuance of that order the defendant on March sixth served his ease on appeal, to which on March eleventh the plaintiff served amendments, with notice of settlement for March twenty-fifth. On March fourteenth the defendant served a notice of appeal from the order of February fifth denying his motion; and the plaintiff now moves to dismiss that appeal. The defendant claims that his second motion, denied on February twenty-ninth, was a reargument of the first motion, and not a renewal of the motion under the leave contained in the order of February fifth. But it is clear from the record that it was a renewal of the motion, and that he, having acted upon the favor granted by the first order, and renewed his motion, vdiieh was again heard and determined against him, prevented an appeal from the first order. The motion to dismiss the appeal from the order of February fifth must, therefore, be granted, with ten dollars costs. Present—Ingraham, P. J., McLaughlin, Clarke, Scott and Dowling, JJ. Motion granted, with ten dollars costs.