96 Misc. 678 | N.Y. App. Term. | 1916
This is an action to foreclose a chattel mortgage for $1,000, being the amount of six promissory notes thereby secured, indorsed and delivered to plaintiff by Davis and Wynick Advertising Bureau, Inc. The answer, verified February 14, 1916, and filed on that day, does not deny the making and delivery of notes and chattel mortgage, but denies, in various ways, other allegations of the complaint. It sets up two separate defenses and counterclaims. An amended answer, verified February 17, 1916, appears in the judgment roll; but it is without file mark or proof of service, and an affidavit by defendant’s attorney states that plaintiff’s attorney refused to receive it, as defendant’s time to answer had expired on February fourteenth. The pleadings are written and verified. Upon the trial, on February 21, 1916, before the court with a jury, the court directed a verdict in favor of plaintiff for $1,000 and $25 interest. Judgment, in the
The judgment entered by the clerk on February 21, 1916, was, I think, the judgment in the action. At all events it is the only judgment before us f„or review, for it is the only one specified in the notice of appeal. In my opinion, we could not permit an amendment of the notice of appeal under section 158 of the Municipal Court Code so as to specify the judgment of February twenty-fourth, if it be valid, as that would, in effect, be permitting an appeal from that judgment after the time to appeal had expired. See Neeker v. Nardi, 51 Misc. Rep. 1; Kirschner v. Abbotis Bakeries, Inc., 92 id. 402. I think, however, that the judgment dated
It is a matter of regret that under the Municipal Court Code there appears to be no other way in which, under the circumstances here disclosed, either this court or the Municipal Court can relieve the litigants from the error shown by the record.
Jaycox and Clark, JJ„, concur.
Judgment reversed, without costs, and new trial ordered.