Fairchild v. Edson, 30 N.Y.S. 615

Fairchild v. Edson

30 N.Y.S. 615 | N.Y. Sup. Ct. | 1894

PER CURIAM.

We are of the opinion that the time for the appellant to appeal has expired. More than 30 days have elapsed since the service upon her of the judgment by the prevailing party, and such appellant has taken one appeal, which has been disposed of by the general term. 28 N. Y. Supp. 401. She now proposes to *616appeal as against a codefendant, claiming that her time to take such appeal has not expired, because such codefendant has not •served upon her a copy of the judgment. We do not think that this is necessary, except in cases where cross answers have been served as between defendants, and judgment is entered in favor of one defendant and against another. Where the answers are -served only upon the plaintiff, and a single judgment is entered, in which the plaintiff has substantially prevailed, it would seem that the service of such judgment upon all the defendants sets running the statute of limitation in respect to appeals. This was done in the case at bar, and it would seem, therefore, that the present appellant cannot maintain her appeal as against a codefendant, the time for appealing generally having expired. The case of Kilmer v. Hathorn, 78 N. Y. 228, has been cited An support of the contention of the appellant herein. It is true that certain language was used by the court which gives countenance to such con- , tention, but no question similar to the one now before the court , was involved or was determined by the court in that case. The motion should be granted, with $10 costs.