1 N.Y.S. 357 | N.Y. Sup. Ct. | 1888
Lead Opinion
An ordinary undertaking, with two sureties, need not be approved. -The respondent could except to the sureties, and if, on notice.
The order should be therefore affirmed, with costs and disbursements. But' it is not right that the appeal should be lost. Leave is therefore given for-the appellant to apply to a justice of the court for the approval of the bond,, with the right thereafter to respondent to except in the usual way.
Dissenting Opinion
(dissenting.) The service of notice of appeal on July 11th, accompanied by an undertaking in due form, appealed the case. Jurisdiction fully attached. If thereafter any mistake or irregularity occurred, the proceeding does not become void, but the court has power to grant relief, and. may permit amendments or supply omissions. Sections 724,1303,1326, Code Civil Proc. Iron-Works v. City of Brooklyn, 85 N. Y. 652, is exactly upon, the point, and is decisive. Ordinarily these amendments are allowed very-much as matters of course. No court that is conscious of having attempted to do its duty will shrink from submitting its determinations to review bytlie tribunals constituted for that purpose; and no case is cited where the right of appeal has been forbidden to a suitor who has been willing to supply the defects or errors in his proceedings. In the case at bar the sureties upon the original undertaking, which is conceded to be in due form, did not attend to. justify on the day appointed, and the time for justification and for service of new undertaking to perfect the appeal was extended by various orders until November 5th, when the undertaking of the surety company was served. It is contended that some of the extensions of time are void, as having been obtained ex parte, not upon notice. We are not of that opinion. The time previously allowed had in no case expired, and the universal practice has been that in such case notice of motion is not required. When a default has occurred, and not otherwise, notice of motion has been exacted, and properly; but it would be intolerable were a formal notice required for an extension of the time within which to take the usual and ordinary steps of a cause. The extension of time to answer is a case in point; and, were a motion upon notice requisite, the danger to suitors would be extreme. The appeal having been already taken in due time, and no default having occurred, the orders, extending the time to perfect the appeal were regular. Were it otherwise,, the order granted October 31st, on motion of defendant’s attorney, extending-the time to November 5th, was a waiver of any previous irregularity, and an undertaking filed on November 5th was not too late. Further question is made that the undertaking of the surety company, not having been approved by a judge before filing, was not regular, and upon this ground the order appealed from proceeds. The question is by no means free from doubt. The rule has been that, where security is required against some injurious act like-the granting of an attachment, an arrest against the person, or an injunction,.
It appears by the order entered upon the appeal that the order appealed from was affirmed, with leave to appellant to apply for the approval of the undertaking, as directed in the opinion of Mr. Justice Barnard, Mr. Justice Pratt thus concurring in the final result.