46 Barb. 615 | N.Y. Sup. Ct. | 1866
The notice was not served in time. The day on which judgment was entered by the justice should not be counted. That would leave sixteen days in ¡November, and four days in December, within which the plaintiff might have served his notice. That time expired with the 4th day of December, and service on the 5th was too late, and worthless. (Phelan v. Douglass, 11 How. 193, and cases cited.)
The case of Gallt v. Finch, (24 How. 195,) is not in point, because the court there hold that the time did not begin to run in that case until the order appealed from had been entered with the clerk, which was on the 27th day of May, and that notice of such order before it was entered was a nullity. The appeal was taken on the 27th of June, the last of the thirty days allowed for an appeal, in that case.
The order of the Chemung county court, dismissing the appeal in this action, must be affirmed, with $10 costs.
Parker, Mason, Baleom and Board-man, Justices.]
