Schueler v. Dooley

139 N.Y.S. 743 | N.Y. App. Div. | 1913

Hirschberg, J.:

The order appealed from denies the plaintiff’s application for an extension of time within which to serve his proposed case on appeal. The action has been pending about five years and has been tried three times. Decisions have been reviewed in this court twice. The action is brought to recover the amount of a deposit made by the plaintiff on an agreement of the defendant to convey certain real estate to the plaintiff, the defendant claiming that the contract has been broken by the plaintiff and his rights to the deposit consequently forfeited. On the first trial the judgment and order entered in favor of the defendant were reversed on appeal to this court, and a new trial was granted upon the ground that the issues then determined should have been submitted to the jury. (Sehueler v. Dooley, 138 App. Div. 921.) The second trial resulted in a verdict for the defendant, but on appeal the judgment and order then entered were reversed by a divided court on the ground of error in the submission of the case to the jury by the trial court. (Schueler v. Dooley, 149 App. Div. 814.) The third trial resulted in another verdict for the defendant, and judgment was entered against the plaintiff on July 1, 1912, in the sum of $458.08. ■ Notice of appeal was duly served by the plaintiff on July 12, 1912, and his time to prepare and serve the ease on appeal has been extended by the defendant on two occasions, the time ultimately expiring on the 11th day of November, 1912. It appears that the plaintiff was indebted to the court stenographer and that judgment had been entered in favor of the latter and against the plaintiff for the expense or cost of the minutes of the first two trials, and just before the final expiration of the time to serve the case on' appeal by extension, the plaintiff tendered to the stenographer the cost of the minutes of the last trial, which minutes were refused by the stenographer because of the existence of the unpaid judgment. The plaintiff madeno attempt to compel the furnishing of the minutes by mandamus, but moved for an order to extend the time to serve his ease, which motion was denied by the making of the order appealed from. It seems clear that the laches of the plaintiff was sufficient ground for the denial of the motion in question. Aside from that consideration, however, the application was properly denied because of the failure of the plaintiff to show any merit in his proposed appeal. There is no statement or suggestion in the moving papers of any error committed on the trial. The plaintiff’s counsel makes no affidavit indicating a belief in the propriety of the appeal or the possibility of a termination successful to the plaintiff, and the only affidavit submitted in support of the motion, which affidavit was made by the plaintiff himself, is confined with respect to the question of merit to the allegation “that deponent believes that upon a hearing of the appeal in this case the Appellate Court will, for the third time, reverse the judgment and grant a new trial to this deponent.” Reversals in appellate courts are not the result of habit but are based upon the commission of serious error in the court below. In view of the long period of time during which the litigation has been pending; that the plaintiff has failed in each trial; that ample time was furnished him voluntarily in which to enable him to perfect his appeal; that it is not made to appear in any way that additional time would be effective for the purpose required, and that no merit in his appeal has been disclosed, his application was properly denied, and the order should be affirmed. Burr, J., concurred; Thomas, J., concurred on the ground that no merit was shown in the appeal; Carr and Woodward, JJ., dissented. Order affirmed, with ten dollars costs and disbursements.