68 N.Y.S. 119 | N.Y. App. Div. | 1901
Upon the coming in of the verdict in this action a motion was made for a new trial upon the judge’s minutes under section 999 of the Code. In response thereto the order of February first was made. It is difficult to understand why a case and exceptions was therein directed, as none was needed in order to hear the motion, which is ordered to be brought on thereafter at the judge’s chambers ; but such was the practice which the defendant’s attorney seems to have "adopted, and the plaintiff’s attorney, upon the receipt of the case and exceptions by him, was justified in considering it as served under such order and in pursuance of such practice. He was also justified in returning it, inasmuch as he did not receive it until after the sixty days allowed by such order had expired.
We cannot conclude that it was served in time, because the defendant’s affidavit does not show any service at all. His statement that it was deposited in the post office at Elmira does not show a service, because he does not state that it was addressed as required by the Code nor that the postage thereon was prepaid. (Code, § 797.) And, as is insisted by the defendant’s counsel, we are not at liberty to consider on this appeal the affidavit of the plaintiff’s counsel which is printed in the record, because the order appealed from does not recite that it was used on the motion. Hence we can derive no aid from that affidavit upon the question of when or how service was made.
After the plaintiff’s attorney returned the case and exceptions, the defendant’s attorney, by the letter of April fifth, for the first time suggested that a change was intended in the defendant’s practice; that the motion for a new trial was to be abandoned, and that the only review to be asked was by an appeal directly from the judgment ; and, in substance, he asks in such letter that the plaintiff’s attorney will write him if he desires to accept the case and exceptions as having been served pursuant to such a plan. A copy of the judgment as entered had been served upon the defendant’s attorney February twenty-fourth by mail, and on or about that date a
Two positions seem to have been taken upon the motion at Special Term; one that the case and exceptions had been served in the time required .by the order of February first, the other that the proceedings under that order had been abandoned, and the case and exceptions were in time under rule 32, as having been served as part of ■the record on appeal only, within thirty days after notice of the entry of judgment., As shown above, the order there made might very well have denied the motion with costs. The one which, was made, and from which this appeal is taken, is not clear as to the
, Order affirmed, with ten dollars costs and disbursements.
All concurred, except Smitr and Kellogg, JJ., dissenting.
Order affirmed, with ten dollars costs and disbursements.