42 Barb. 441 | N.Y. Sup. Ct. | 1864
By the Oourt,
I think the notice of the entry of judgment, in this case, served as it was before the costs were, finally adjusted, had not the effect to limit the plaintiff's right of appeal. The appeal is allowed by the fourth chapter of title eleven of the code; and the limitation insisted upon’ by the defendants is created by section 332 of the code, which provides that such appeal “must be taken within thirty days after written notice of the judgment * * * shall have been given to the party appealing.'' A party seeking to avail himself of this statutory limitation should be held to strict practice. Thus it has been repeatedly decided, under the provision above referred to and other similar statutes that nothing short of a written notice of the judgment will limit the time in which to appeal; that neither a verbal
The practice allowing a party to enter and docket his judgment, without notice of taxation, is merely to prevent delay in obtaining his lien and securing his demand. It would be unjust to permit him so to use the privilege as to shorten the time within which his opponent" may appeal, or embarrass him in the exercise of that important right.
It follows from these views, that as no written notice of the amount of the judgment was served, after the costs were re-adjusted, the time to appeal had not expired when the notice of appeal was served.
It appears that the plaintiff voluntarily paid the costs upon bringing his appeal; and the defendants claim that this was a waiver of the right of appeal. I think otherwise. In the absence of proof to the contrary, it is to be presumed that the referee dismissed the complaint on the mérits, and the judgment is a bar to another action. The costs are a rnere incident to the recovery; and notwithstanding they have been paid, the plaintiff has a right to have the decision of the referee on the merits reviewed.
For the reasons above stated, I think the motion should be denied, with ten dollars costs; hut as the defendant’s coun
Ordered accordingly.
James 0. Smith, Welles, and E. Darwin Smith, Justices.]