Mitchell v. Watkins

47 N.Y.S. 339 | N.Y. App. Div. | 1897

Hardin, P. J.:

' Section 3047 of the Code of Civil Procedure seems to require that the notice of appeal shall be delivered personally to the justice or personally to his clerk. Upon the facts disclosed in this case, it appears that the notice of appeal was delivered within the statutory time to the justice of the peace personally. Although the delivery was made by the hand of a party who was in the service of the United States government, acting in behalf of -the mail service, the fact remains that the notice of appeal was actually delivered into the presence, custody and keeping of the justice of the peace, and that he received the same, retained it, and at the same time he received ■the fees required to be paid for making his return and also the costs included in the judgment. He thereafter mailed his return, which was filed with the county clerk. The appellant caused the notice of appeal to be delivered personally to the justice. Such delivery seems to be a literal compliance with the intent and purpose of the statute, and, we think, should be held to be a sufficient fulfillment of the requirements of the statute, (Rogers v. Rockwood, 59 Hun, 628, mem.; fully reported in 13 N. Y. Supp. 939; Farmer v. National Life Association of Hartford, 67 Hun, 119.)

(2) The notice of appeal, pursuant to the act of the appellant, personally reached the clerk in time and the clerk executed and delivered to the appellant an acknowledgment of the notice of appeal and retained the same.

We think the County Court obtained jurisdiction of the appeal, and that the motion made to dismiss it should have been denied.

All concurred.

Order reversed, with ten dollars costs and- disbursements, and motion denied, without costs.