36 A.D. 339 | N.Y. App. Div. | 1899
These are cross-motions to dismiss appeals taken -by each party herein. The action was tried before a- referee, and the plaintiff, securing a favorable report, entered judgment thereon. After the entry of judgment the defendant duly appealed therefrom. Subset quently he made- a ¡notion for a new trial Upon affidavits setting forth newly:discovered' evidence. This motion was ■ granted upon payfnent of the-costs of the trial and certain other' specified items. Thereafter and on October 29, 1898, the defendant entered an order in the clerk’s office of the county of Westchester, bearing date the twenty-second day of-October, and certified by the clerk as having been granted on that-day. A copy of this order was served upon the plaintiff’s attorney on the day of its entry, and upon the cover containing, the order was indorsed “ Copy. Order granting new trial.” On the day of the entry of- this order the. defendant also served.a. notice of resettlement, but such resettlement was not acted upon by the court until the 18th day of November, 1898, when .the justice granting the same refused to alter or resettle the order as ' made and entered. ■ Upon the cover of the copy of the order served . was also indorsed a .notice of the entry of the order which stated that it was made and entered on .tire twenty7nin.thffiay-of .¡October. ■ The paper cover when foldcd.entirély'-Qb.hcbáled' the. notice pf ■ entry of the order, and in that condition,.showéd--albñeíiipon its" face" that it was a copy of an order granting a new trial; It was quite possible to open and read the order without discovering the notice of entry, arid the' managing clerk of plaintiff’s attorney, upon. whom service of" the order was made, states in an affidavit that he did not discover the "existence of this notice until the attorney for the defendant refused to accept a notice of appeal therefrom thirty-two days after its entry. -.The motion of the defendant is to dismiss the plaintiff’s appeal "from the order." Immediately upon the-entry of the order granting the motion for a new trial, the defendant "sought, to avoid
This case is plainly distinguishable from Hewitt v. City Mills (136 N. Y. 211). The costs in that case were the mere incident of the judgment recovered by statute; and by the very language of that decision the judgment remained intact, and the amount of the retaxed costs, if less than those entered in the- judgment, was to be deducted from the execution. In the present case the application was not to change a mere incidental part of the order, but to change the order itself in a substantial particular. This would be sufficient to defeat the defendant’s motion, but there are other reasons why he may not succeed. It is well settled that where a party seeks to limit the time of. his adversary to appeal, he must be strictly regular in his practice to accomplish that result. (Matter of the N. Y. C. & H. R. R. R. Co., 60 N. Y. 112 ; Kelly v. Sheehan, 76 id. 325.) The defendant has not fulfilled this requirement. The notice provided by the Code of Civil Procedure (§ 1351) must be so given that the
But if we treat the notice of the entry of the order as having been' brought to the knowledge of the plaintiff, it is insufficient to limit the' time in which to appeal. The notice states that it is a copy of an'' order made and entered on the 29th day of October, 1898. Beférence to the order itself shows that no such order was made on that day. On the contrary, its heáding, and the certificate of the clerk attesting' the same, show that it was made oñ the 22d day of October^ 1898. This is a departure from strict regularity, and within the authority. of the cases first above cited is insufficient as a notice to limit the time of appeal-. Defendant’s motion to dismiss the appeal from the order must, therefore, be denied. . .
The same fate must also attend upon the plaintiff’s motion to' dismiss the appeal from the judgment. It appears that when the' order granting the new trial was complied with by -the defendant,' the plaintiff ■ refused to take what he was entitled to' thereunder' and. appealed' from the order. Having thus elected to contest - the validity of that order, he could not defeat plaintiff’s' right to" appeal from the judgment. It is true that the order had the' effect of setting aside the judgment, -if it remained a final order,'
The plaintiff’s motion to dismiss the appeal should, therefore, be denied.
All concurred.
Each motion to dismiss the appeal denied, without costs.