Opinion
September 28, 1949.
Present — Foster, P.J., Heffernan, Brewster, Santry and Bergan, JJ.
Motion to dismiss an appeal from a decree of the Surrogate's Court of Chenango County on the ground that the notice of appeal was not timely served. The issue of timely service depends upon the construction to be given to the manner in which a copy of the decree was served upon the attorney for the appellant. On March 22, 1949, the attorney for the trustee mailed a copy of the decree to the attorney for the appellant and enclosed a letter couched in the following language: "Re: Timothy Downey Estate. Dear TOM: Enclosed is a copy of the decree entered March 21, 1949 in connection with the above entitled estate. Also enclosed is a check from the Trustee payable to you in the amount of $716.75, as ordered in the decree. Will you please sign the enclosed satisfaction of decree and return to me at once so that I may be able to file it. Sincerely, DON."
No notice of entry was inscribed upon the copy of the decree itself. Section 612 of the Civil Practice Act limits the time of a party to appeal in the following language: "An appeal to the appellate division of the supreme court, except as otherwise provided by statute, must be taken within thirty days after service upon the attorney for the appellant of a copy of the judgment or order appealed from and a written notice of entry thereof * * *." The language of this section has always been strictly construed so as not to deprive a defeated party of his right to appeal. The notice of entry must be in writing and its service cannot be dispensed with merely because the adverse party may possess all the knowledge which would be conveyed to him by such notice. It is common knowledge that the almost universal practice among attorneys is to indorse the notice of entry on the copy of the judgment or decree served. Doubtless this is not an absolute requirement, but if the notice of entry is served in connection with another paper it nevertheless must contain all the elements which the decisions and common practice have indicated to be necessary. Thus, the notice must state when and where the judgment or decree appealed from was entered. It must state the county where entered and the clerk with whom entered. (6 Carmody on New York Pleading and Practice, §§ 108-117, and cases cited thereunder; Valton v. National Loan Fund Life Assur. Soc., 19 How. Prac. 515; People ex rel. Wallkill Valley R.R. Co. v. Keator, 101 N.Y. 610). We do not view the notice, as indicated in the letter quoted, as a strict compliance with the requirements mentioned. Motion denied, with $10 costs.