Summary
In Kilmer v. Hathorn (78 N.Y. 228, 230), the objection was described as a technicality, and its use in that case, was justified upon the ground that it defeated a point equally technical raised by the adverse party.
Summary of this case from Evans v. BackerOpinion
Argued June 17, 1879
Decided September 17, 1879
Esek Cowen, for appellants.
Charles S. Lester, for appellants.
A. Tond, for respondents.
An order was made at General Term dismissing the appeal of certain of the defendants in this action thereto from the judgment of a referee. The defendants did not stand alike before the court. Some had answered the complaint; some had demurred to it. But all the issues, both those of law and those of fact, were referred. The referee gave judgment against the defendants who now seek to appeal; against some of them upon a trial of the issues of fact raised by the answer; against some of them on the issues of law raised by the demurrer. There was one defendant, Augustus Bockes, as trustee, against whom in any individual interest judgment was not rendered. He was not affected by it, save as trustee, and as trustee for some of the defendants who sought to appeal.
After entry of the judgment, notice thereof was served by the attorney for the plaintiffs on the appealing defendants. No notice thereof was served on behalf of the defendant Bockes.
Within due time after the service of the notice of judgment, notice of appeal was served by these defendants upon the party who had served the notice of judgment, but no notice of appeal was served upon the defendant Bockes.
Thirty days and over having expired from the service of the notice of judgment, the plaintiff moved for a dismissal of the appeal, and obtained the order therefor.
The Code (§ 1346) provides for an appeal to the General Term, from a judgment rendered upon a trial by a referee upon questions of law or fact or both. By section 1351 that appeal must be taken within thirty days after service of notice of entry of the judgment, with copy of the judgment. Though the Code does not say so, it is plain that the notice spoken of must be one coming from a party interested in the judgment, as the party who prevailed thereby. ( Fry v. Bennett, 16 How. Pr. R., 402.) Now Augustus Bockes as trustee was either a prevailing party or he was not. If he was not, then there was no need of notice of appeal to him. If he was, then as he has not served notice of judgment, he has not set running the bar of thirty days, so far as he is concerned; for no other party, nor any attorney representing another party only, had right to serve a notice for him. As he has not served notice of judgment, the time to give notice of appeal as to him has not expired. The notice of appeal was good and the appeal was good as to those prevailing parties who served notice of judgment. We do not think that they had right to incorporate his situation in the case with their own, to the barring of the appealing defendants from their privilege of appeal.
There is another reason why the motion to dismiss should not have been granted. The notice of judgment did not show the office address or place of business of the attorney who served it. This was a failure to observe and follow the second general rule of the Supreme Court. We have held this omission fatal to the sufficiency of a notice of judgment to set in motion the short bar of section 1351 ( Kelly v. Sheehan, 76 N.Y., 325.)
We quite agree with the learned General Term, that this litigation is in an extraordinary complication and confusion. We think that it would still more complicate and confuse if this judgment appealed from should be left unreviewed, while that in the other suit should run the course of appeal to a determination now unknown. And as the motion to dismiss the appeal is based upon a technicality, it may be met with a technicality, so that the whole matter in contest may be finally and at one time disposed of.
The order of the General Term dismissing the appeal should be reversed.
All concur, except CHURCH, Ch. J., taking no part.
Order reversed.