23 N.Y.S. 670 | New York County Courts | 1893
This action was originally brought before Simon S. Westbrook, then one of the justices of the peace of the ■city of Kingston, who is now dead. It appears from his original minutes that the cause was tried before him, without a jury, on the 30th day of October, 1891, and that at the close of the testimony he made the following entry in his minutes:
“Testimony closed, after which the justice took four days to deliberate on the subject-matter of his verdict. After due deliberation, and on the second day of November, 1891, found that the defendants were not liable for the lamp mentioned in the complaint, but found that the plaintiff was entitled to recover for the use of the picnic grounds July 27, 1891, and therefore found for the plaintiff in the sum of $35, whereupon I immediately rendered judgment in favor of plaintiff against the defendants for damages $35
G. 4.85
$39.85”
lío entry of the judgment was ever made by the justice in his ■docket. The defendants served a notice of appeal to this court. After its service the defendant Drautz died, and Barbara Drautz, his widow, was appointed his administratrix. The respondent, up-en an affidavit stating that the notice of appeal served upon her contained the words, “The appellants demand a new trial in the appellate court,” 10 months after its service, moved to dismiss the appeal upon the ground that as the sum for which judgment was demanded by either party in. the pleadings was less than $50, and the appellants had demanded a new trial in the appellate court, their appeal was unauthorized, and should be dismissed. They also asked that the administratrix of Drautz be substituted as defendant appellant in his place and steady Prior to this motion both the respondent and appellants, proceeding upon the assumption that the appeal was regularly pending as an issue of law, noticed it for hearing as such for the May, 1892, term of this court. On the hearing of the motion to dismiss, the appellants’ attorney filed an affidavit in which he swears that he prepared the original notice of appeal, erasing the words, “The appellants demand a new trial in the appellate court,” and handed it to his clerk to make ^copies.; that she made them, but omitted to strike out from the
It has been repeatedly held that where a justice of the peace indorses upon his minutes of the trial a memorandum rendering judgment in a specified sum, and stating the amount of damages and costs separately, his neglect to perform the duty enjoined upon him by the statute, of entering it in his docket, will not invalidate the judgment. Colvin v. Corwin, 15 Wend. 557; Walrod v. Shuler, 2 N. Y. 134; Fish v. Emerson, 44 N. Y. 376. Therefore the judgment rendered by Mr. Justice Westbrook is a valid and subsisting one against the appellants, and if they have mistakenly taken an appeal unauthorized by law, and the time to perfect another has expired, they are without redress.
It is insisted by the respondent under the authority of Thorn v. Roods, 47 Hun, 434, that as the notice of appeal served upon her demanded a new trial in the appellate court, and as the appellants were not entitled to such a trial, and as more than 20 days have elapsed since the rendering of the judgment, she is entitled to a dismissal of the appeal now pending, and to enforce her judgment by execution. In Thorn v. Roods no issue was joined in the court below, and all the notices of appeal served contained the words, “The appellants demand a new trial in the appellate court.” In the case at bar it is not disputed that in the notice of appeal served upon the justice those words were erased. The city clerk certifies
‘"If the justice dies, becomes a lunatic, absconds, removes from the state, or otherwise becomes unable to make the return, the appellate court may receive affidavits or examine witnesses as to the evidence or other proceedings taken and the judgment rendered before the justice, and may determine the appeal as if the return had been duly made by the justice.” Code Civil Proc. § 3056.
The other questions involved can be considered upon the hearing of the pending appeal. The contention that the appeal is nugatory because taken before the docketing of the judgment I regard as untenable. While it is true that by section 3046 of the Code of Civil Procedure an appeal must be taken within 20 days after the entry of the judgment in the justice’s docket, it may be taken as soon as the successful litigant is in a position to enforce it; and as under the decisions of Colvin v. Corwin, 15 Wend. 557, Walrod v. Shuler, 2 N. Y. 134, and Fish v. Emerson, 44 N. Y. 376, heretofore cited, it is held that the neglect of the justice to perform the duties enjoined upon him by statute, of entering the
An order may be entered—First, denying the respondent’s motion to dismiss the appeal; second, denying the appellants’ motion to direct the city clerk to docket the judgment; third, denying the appellants’ motion to treat as nugatory the appeal already brought; fourth, substituting Barbara Drautz as administatrix of the goods, chattels, and credits of Louis Drautz, deceased, in the place and stead of the said Louis Drautz, as defendant appellant; fifth, permitting the appellants to correct notice of appeal served upon the respondent by striking out the words, “The appellants demand a new trial in the appellate court.”