Sommers v. Ditmar

46 N.Y.S. 667 | N.Y. Sup. Ct. | 1897

Truax, J.

The plaintiff herein entered an interlocutory judgment herein and served a copy of such judgment and a written notice of the entry thereof upon the attorneys for the defendants. Such judgment was entered by the plaintiff upon the report of a referee, which report they served upon defendants. More than thirty days after the entry of such judgment, ..but less than thirty days after entry of the final judgment, plaintiff filed exceptions to the report of the referee and served a copy of such exceptions and also notice of appeal from portions of said interlocutory judgment, which copy of exceptions and notice of appeal were returned by the defendants on the ground that they were not served within the time prescribed by law. The defendants never have served the report of the referee nor the judgment, with notice of entry thereof, upon the plaintiff, and it is claimed by the plaintiff that, because of that fact, their time to serve exceptions to the referee’s report and notice of appeal from the interlocutory judgment has not expired. Section 994 of the Code of Civil Procedure provides that the exceptions to the report of a referee may be taken at any time before the expiration of ten days after service upon the attorney for the exceptant of apopy of the report of the referee and a written notice of the entry of the judgment thereupon; and section 1351 provides that an appeal authorized by title 4 of chapter 12 must be taken within thirty days after service upon the attorney for the appellant of a copy of the judgment or order appealed from, and a written notice of the entry thereof. If the question were a new one, it might be that I would hold that was not necessary for the defendants herein to' serve the written notices above mentioned, but the question is not a new one. It was held in Rankin v. Pine, 4 Abb. Pr. 309, by a General Term of the Supreme Court, that the service of a written notice of a judgment or order, in order to limit the right of appeal by the expiration of thirty days, is necessary even where the appeal is taken from a judgment or order entered by the appellant himself, and that case was cited with approval by the Court of Appeals in 60 N. Y. 115. In the case last cited it was held that a party undertaking to limit the time for appealing is held to strict practice. Strict practice requires written notice. See also Kelly v. Sheehan, 76 N. Y. 325; Kilmer v. Hathorn, 78 id. 229; Good v. Daland, 119 id. 153; Langdon v. Evans, 29 Hun, 652. It is said in 2 Ency. of Plead. & Prac. 251, that “ the requirements of such statutes are rigidly construed, and the most technical objections to the copy of the judgment or written notice served will suffice to prevent the statute running. Actual knowledge of the entry of the order on the part of the appellant or the entry of the order by the party appealing does not set the statute running nor dispense with written notice.” Motion granted, with $10 costs to abide event.

Motion granted, with $10 costs to abide event.