Troppman v. Weigart

138 N.Y.S. 59 | N.Y. App. Div. | 1912

Robson, J. :

The amended decree of the Surrogate’s Court, of which appellant, George Troppman, seeks a review on this appeal, among other things judicially settled the accounts of Franciska Hourt, as the administratrix of the estate of George Heldmann, deceased, adjudged that deceased left an estate of inheritance, that Appolonia Weigart was “ the- only hem at law” of deceased, and directed the administratrix to pay forthwith the balance of the estate, the amount of which was fixed and determined thereby, to the attorney in fact of the said Appolonia Weigart. As stated in the opinion of this court, delivered when the appeal of the administratrix from this decree was disposed of: “ Decedent’s only property was a deposit to his credit in the Buffalo Savings Bank. The principal issue litigated in the proceedings was whether he had made a valid gift, either causa mortis or inter vivos, of this deposit for the benefit of one George Troppman, an illegitimate ■son of decedent, after the payment therefrom of ‘all expenses.’ This issue was found adversely to the claim that there was any such gift.” The appeal was dismissed for the reason that appellant as administratrix was not a “ party aggrieved ” by the decree. (Matter of Heldmann, 151 App. Div. 234.) Troppman was not in the first instance made a party to these proceedings by service of a citation on him, nor did he by order obtain leave to intervene therein. After the issues had been ' referred by order of the Surrogate’s Court to a referee to hear and determine all questions arising upon the settlement, at the beginning of the hearing before the referee, Mr. Mueller, the attorney for the administratrix, appeared as attorney for Troppman, and this entry appears in the minutes of the referee: “ John F. Mueller as attorney for the administratrix, Franciska Hourt, also appears for George Troppman of Schneittenbach, Germany.” The report of the referee also recites that Troppman appeared by this attorney. Such an appearance by attorney in open court without objection by any other party was . effectual.to make him a party to the proceedings.

The motion to dismiss this appeal is made on the ground that it was not taken within the time prescribed-by law. It is conceded that a copy of the amended decree .was in fact served upon Mueller, the attorney for the administratrix, and Troppman, in August, 1910j. with a notice of entry thereof.

This notice was as follows: “Notice of Entry. Take notice that an order of which the within is a copy was duly entered in the office of the Clerk of the Surrogate’s Court of the County of Erie N. Y., on the 15th day of August, 1910. '

“Dated at Buffalo, N. Y., August 16th, 1910.

“ To John F. Mueller, Attorney for Franciska Hourt.

“Harry Forrester, Attorney for Appolonia Weigert, Office and Postoffice address, 845 Ellicott Sq., Buffalo, N. Y.”

The administratrix then appealed to this court with the' result above stated. After the decision of that appeal Troppman, by his attorney, sought to serve upon the attorney for the next of kin a notice of appeal on his behalf from the same decree, together with notice of exceptions and undertaking. Nearly two years had then elapsed from the time Troppman’s attorney had been served with the copy of the decree and the notice of entry thereof in the form above sót out. The attorney for the next of kin refused to accept service of the papers, and at once returned them, with the statement in effect that the time within which such appeal could be brought had long since expired. It is not contended by appellant’s attorney that there is any irregularity or defect either in the form or the sufficiency of the notice itself; and it complies with the requirement of rule 2 of the General Rules of Practice as to the subscription thereof by the attorney, with the addition of his office address. His sole contention in this regard is that, because at the end of the notice appeared the words “ To John F. Mueller, Attorney for Franciska Hourt,” the effect of the service was limited to giving notice to him as attorney for the administratrix and did not extend so far as to give notice to him as the attorney for Troppman. I do not think the position is tenable. Neither the attorney nor his client Troppman was by this form of address of the notice in any way misled as to the effect of the decree upon the client’s rights. Section 2572 of the Code of Civil Procedure fixes the time within which an appeal from a decree of the Surrogate’s Court may be taken, which is, if by a party, “ within thirty days after the service, upon the appellant or upon the attorney, if any, who appeared for him in the Surrogate’s Court, of a copy of the decree or order from which the appeal is taken, and a written notice of the entry thereof.” Neither this section nor general rule 2 in terms requires the notice to be formally addressed to the person upon whom service is to be made. I fully recognize the general, principle that a party moving to dismiss an appeal on the ground that the time to appeal had expired before service of the notice of appeal stands upon a strict legal right and must be held to strict practice. (Kelly v. Sheehan, 76 N. Y. 325; Good v. Daland, 119 id. 153; Kilmer v. Hathorn, 78 id. 228; Fortsmann v. Shutting, 107 id. 644; Matter of N. Y. C. & H. R. R. R. Co, 60 id. 112.) But I think strict practice was in effect followed in this case. In the case of Father v. New Yorh, West Shore & Buffalo R. Co. (100 N. Y. 86) a motion to dismiss the appeal was opposed on the ground that the notice of entry of- the judgment appealed from was not subscribed with the office address nor directed to appellant’s attorneys. The court says: “There is no rule covering such a case. The notice was served at the proper office and delivered to the proper person, and was retained, and as no one could have been prejudiced by the omission to insert in the address the names of all the partners in the firm .of attorneys, we think the service should be held sufficient. Although strict practice must be pursued to limit the time to appeal, and even a technical irregularity in giving the required notice will be considered, still there must be some irregularity, and a mere inaccuracy in the notice which violates no rule" of practice and is in itself immaterial, will not be sufficient to avoid it. ” So in the case at bar no one was or could be prejudiced by the omission to add the words indicating that Mueller had also appeared as attorney for Troppman. Mueller had in fact appeared for him, else he was not a party to the proceedings. That he had appeared as attorney for Troppman as well as for the administratrix could not have escaped his recollection. As an attorney he had in person been served with a copy of the decree and notice of entry thereof. This service notified him as attorney that the decree had been entered, and, as a necessary incident, acquainted him with the purpose of the service. What •he was advised of and knew as attorney for the administratrix he necessarily was advised of and knew as attorney for Troppman. Neither the statute nor the rules of court required the service of a notice of entry of the decree upon this attorney addressed to him in specific terms recognizing and indicating the fact that he was thus served as attorney for both clients for whom he had appeared. Among other cases where unimportant defects and omissions have been held insufficient to avoid the resultant effect of due service are Guarantee Trust Co. v. Philadelphia, Reading & New England R. R. Co. (160 N. Y. 1); Evans v. Backer (101 id. 289); People ex rel. Wallkill Valley R. R. Co., v. Keator (Id. 610); Baker v. Hatfield (29 Hun, 610). In the opinion óf the court given in the Guarantee Trust Co. Case (supra) this statement appears: “While it has sometimes been held that strict compliance with section 1325 and similar statutes is required to limit the time of a party to appeal, still, we think that the statute should not be so rigidly construed as to nullify its object or to make it difficult of application. The evident purpose of that section was to enable parties to avoid undue delays and to promptly secure the final determination of their cases.”

I think the service of copy decree with the notice of entry thereof as made was sufficient for the purpose of limiting the time within which Troppman as well as the administratrix could appeal to thirty days after such service. To hold otherwise would, as it seems to me, be by an arbitrary construction to nullify the Code provisions referred "to. This appeal not having been taken till long after the thirty days had expired, the motion to dismiss the appeal should be granted, with ten dollars costs and disbursements.

All concurred.

Appeal from decree made August 10, 1910, dismissed, with ten dollars costs.