19 Misc. 540 | N.Y. App. Term. | 1897
Proceedings were commenced December 16, 1896, in the Eourth Judicial District Court for the recovery of the possession of the premises Ko. 93 Bowery, on the grounds specified in .subdivision 5 of section 2231 of the Code of Civil Procedure, to-witThat “ the demised premises * * * are used or occupied as a bawdy-house, or house of assignation for lewd persons.” The proceeding resulted in a final order in favor of the landlords December 28, 1896, and a warrant was thereupon issued, and has since been executed. An appeal was taken December. 29, 1896, by the service on the clerk of the District Court
Rule 3, regulating appeals to the Appellate Term, provides that: “ In appeals from the District Courts, if the appellant does not procure the return to be made to the court "within the time prescribed in section 3053 of the Code of Civil Procedure ” (that is after ten and within thirty days from the service of the notice of appeal) “ the respondent may move, on five days’ notice, .to dismiss the appeal, and such appeal will be dismissed unless such Appellate Term, for good cause shown, extends the time in which the return may be filed.”
The thirty days expired January 28, 1897, nearly four weeks ago; yet the appellant has made no serious effort to procure the filing of the return. The only excuse offered is different engagements in various courts and places, and the want of a male stenographer to transcribe the notes,
The appellant’s counsel concedes that the evidence adduced upon the trial establishes the grave charge made under the statute as ground of the proceedings, and an examination of the stenographer’s minutes removes any doubt that might exist on the subject.
The appellant says he hopes to obtain a reversal of the final order on the charge of the trial justice. This has not been submitted to us. The proofs, however, are so convincing that it is apparent that no slight technical error would justify this court in reversing the final order. At all events error has noi been sufficiently established to warrant us in holding that good cause has been shown for denying the present application and extending the appellant’s time, that he may state at length the technical grounds upon which he seeks to be restored to the possession of premises found by the jury to have been used by him “ for lewd purposes.”
The respondents’ practice is regular, and the appellant is not entitled to an extension as of right, and the application he makes is not one which, under the circumstances, addresses itself to the favor of the court.
The motion must be granted, with $10 costs.
Present: Daly, P. J., McAdam and Bischoff, JJ.
Motion granted, with $10 costs.