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Newman v. Agid

Appellate Division of the Supreme Court of New York, Third Department
May 18, 1967
28 A.D.2d 600 (N.Y. App. Div. 1967)

Opinion

May 18, 1967


Motion for further extension of time to perfect appeal denied, without costs. Notice of appeal was served May 27, 1966. Respondent moved on December 15, 1966, to dismiss for lack of prosecution and the motion was adjourned to February 6, 1967. Upon reargument, the motion to dismiss was, on March 10, 1967, granted unless appellant should perfect the appeal by April 10, 1967, and serve notice of argument for the term commencing May 15, 1967. The condition has not been complied with. Appellant's attorney opposed the first application in an affidavit sworn to February 2, later found to be regrettably lacking in candor. This affidavit stated that the failure to proceed had been due to delay in the preparation of the trial transcript, which affiant had ordered and paid for, the affidavit being silent as to when. It subsequently developed that the attorney's check was mailed to the stenographer on February 2, the date the affidavit was made. It further appeared that the attorney assumed to instruct the stenographer to complete first the transcript in another case. In stating to the stenographer that the latter was "more important", the attorney did not, we assume, speak for the opposing attorney and party in the instant appeal. By CPLR 5525 (subd. [a]) it is provided: "Where a stenographic record of the proceedings is made, the appellant, within the time for taking the appeal, shall serve upon the stenographic reporter a request for a transcript of the proceedings and * * * shall deposit a sum sufficient to pay the fee." The rule was not complied with by payment eight months after the appeal was taken or by an equivocal requisition of the transcript coupled with gratuitous instructions to the stenographer as to the order of performance of the latter's routine duties. Gibson, P.J., Herlihy, Reynolds, Staley, Jr., and Gabrielli, JJ., concur.


Summaries of

Newman v. Agid

Appellate Division of the Supreme Court of New York, Third Department
May 18, 1967
28 A.D.2d 600 (N.Y. App. Div. 1967)
Case details for

Newman v. Agid

Case Details

Full title:MOE NEWMAN, Appellant, v. GUSTAV AGID, Respondent

Court:Appellate Division of the Supreme Court of New York, Third Department

Date published: May 18, 1967

Citations

28 A.D.2d 600 (N.Y. App. Div. 1967)