Summary
In Kelly v. Sheehan (76 N.Y. 325), this court held that an omission to make such indorsement upon a notice of the entry of judgment which was intended to limit the right of appeal, rendered it ineffectual for that purpose. It was there held that a notice, upon which it was intended to build a claim, for a penalty or forfeiture, must be regular in every respect, and that in such case the party should be held to strict practice.
Summary of this case from Evans v. BackerOpinion
Argued February 4, 1879
Decided March 18, 1879
T. McManus, for appellant.
Charles S. Lester, for respondent.
If the notice of entry of judgment in this case was regular, the notice of appeal was served on the defendant's attorney, one day too late, and the appeal was properly dismissed. But the appellant takes the point that the notice of entry of judgment was irregular and void, because it was not indorsed, or subscribed with the name of the defendant's attorney and his office address, or place of business, as required by Rule 2 of the general rules of practice. We think the point well taken.
There being no power in the court to relieve a party who fails to take an appeal in due time, however meritorious his excuse, the party undertaking to limit the time is held to strict practice.
The order of the General Term should be reversed, with costs.
All concur, except FOLGER, J., absent at argument.
Order reversed.