Opinion
June, 1896.
William Strauss, for motion.
N.S. Spencer, opposed.
Section 3053 of the Code provides that the justice must, after ten and within thirty days from the service of the notice of appeal and the payment of the costs and fees, make his return to the appellate court. The return herein having been made within ten days from the service of the notice of appeal, the respondent claims it was prematurely filed, for the appellant was thus enabled to get the cause on the calendar for hearing at the May term, whereas if the justice had filed his return after the ten days the cause could not have been so placed upon the calendar.
We find nothing in the statute which prevents the justice from filing his return as soon after the service of the notice of appeal upon him as he desires. He is under no obligation to do so, for the statute does not require him to file the same within ten days; but it is not to be implied from this that he is forbidden to do it. The claim has never been made that a return filed after the thirty days deprives the court of the right of hearing the appeal, or subjects either party to any penalty other than that of inconvenience caused by the delay. Delays in the administration of justice are not to be encouraged, and as the justice is bound to make a return we see no reason why he may not make it as soon as he pleases, provided he offends no statute, and none has been infringed in this instance.
"In general it may be laid down as a rule, that when a statute directs certain proceedings to be done in a certain way, or at a certain time, and the form, or period, does not appear essential to the judicial mind, the law will be regarded as directory, and the proceedings under it will be held valid, though the command of the statute as to form and time has not been strictly obeyed; the time and manner not being of essence of the thing required to be done." Potter's Dwarris on Statutes, p. 226, citing numerous illustrations. The Court of Appeals applied the rule (in the Matter of the Public School, etc., 47 N.Y. 561), reiterating the language of Lord MANSFIELD in King v. Londale, 2 Burr. 447; "There is a known distinction between circumstances which are of the essence of a thing required to be done by an act of parliament and clauses merely directory. The precise time in many cases is not of the essence." Statutes are directory where they relate to some immaterial matter, where a compliance is matter of convenience rather than of substance. People v. Schermerhorn, 19 Barb. 558.
As to the application of the principle to courts of inferior jurisdiction the Court of Appeals ( In re Empire City Bank, 18 N.Y. 220) has said: "But if the proceedings should be regarded as not taking place in a court of general jurisdiction, but should be assimilated to a special proceeding before an inferior magistrate, we still think the time fixed for the performance of intermediate steps, after jurisdiction had been once acquired, should be regarded as directory merely, and that an omission to perform one or more of them in time would not render the whole proceeding abortive."
There is nothing in Moench v. Yung, 18 Civ. Pro. 259, or Zoller v. Smith, 45 Hun, 319, which conflicts with these views
It follows that the motion must be denied.
Present: DALY, P.J., McADAM and BISCHOFF, JJ.
Motion denied.