Armstrong v. Heide

49 Misc. 430, 99 N.Y.S. 817

• Court: City of New York Municipal Court
• Decided: February 15, 1906
• Status: Published

Opinion

O’Dwyer, Ch. J.

If the plaintiff’s complaint failed tc state a cause of action, it was beyond the power of the court, upon the trial, against the objection of the defendant, to supply the omission. That relief could be had at Special Term, upon such terms as the court might deem proper to impose. The orders of the Special Term, referred to in the notice of appeal, do not necessarily affect the final judgment; and the time to appeal therefrom separately having expired, it was improper to include an appeal therefrom in the notice of appeal from the final judgment. The defendant then had to return the notice or waive his objection thereto. I do not think the plaintiff was stayed from serving notice of appeal by reason of the nonpayment of the costs. The defendant had, by moving the cause for trial, waived his right to insist that the plaintiff was stayed from reviewing his affirmative action by reason of the nonpayment of costs theretofore imposed. The defendant’s practice in returning the notice of appeal, having support upon some of the grounds recited, this motion to compel an acceptance thereof is denied, with ten dollars costs.

Motion denied, with ten dollars costs.