Opinion
May 4, 1910.
Frank C. Ferguson and Aaron Fybush, for the appellant.
John T. Ryan, for the respondent.
Order affirmed, with ten dollars costs and disbursements, on opinion of LAMBERT, J., delivered at Special Term.
All concurred.
The following is the opinion delivered at Special Term:
The undisputed proof contained in the affidavits presented on this motion shows that no true copy of the judgment appealed from, with written notice of entry, has been served upon the attorney for the defendant, up to the present time, and the running of the time limited for appealing has not yet commenced. ( Good v. Daland, 119 N.Y. 153. See Harmon v. Van Ness, 56 App. Div. 160; Talman v. Barnes, 12 Wend. 227.)
The notice of appeal to the Court of Appeals is ineffectual for any purpose until the required undertaking has been given and a copy thereof served as required by section 1326 of the Code. ( Architectural Iron Works v. City of Brooklyn, 85 N.Y. 652.)
The plaintiff, having returned the copy of the undertaking served, will not now be heard to say that the appeal became effectual by that service so as to deprive this court of jurisdiction of this application, but is ineffectual to perfect the appeal to the Court of Appeals.
I believe this court has authority to require the plaintiff to accept service of the undertaking where such service, and the service of the notice of appeal was timely, but the copy of the undertaking served was returned on the ground that "no appeal to the Court of Appeals is pending in the action mentioned in said undertaking * * *."
Motion granted, with ten dollars costs.