Bax v. Harnett

9 Misc. 2d 110, 172 N.Y.S.2d 353, 1957 N.Y. Misc. LEXIS 2022

• Court: New York County Courts
• Decided: December 9, 1957
• Status: Published

Opinion

Frank J. Kronenberg, J.

Defendants made timely service of a notice of appeal from a judgment of the Niagara Falls City Court entered by Judge Thomas B. Lee on April 15,1957. However, they failed to perfect the appeal by timely payment of costs as required by section 430 of the Justice Court Act.

Since an appeal was taken by service of notice within 20 days pursuant to section 428 of said act, the County Court has jurisdiction under section 433 to permit in its discretion, perfecting of the appeal and amendment of the notice of appeal. (Desabrais v. Aikens, 283 App. Div. 909.)

Defendants cross-move for permission to amend the notice of appeal to demand a trial de novo and for allowance of tardy filing of the undertaking required by section 443. The court has discretion to permit late filing of the undertaking (Brown v. Gladstone, 178 Misc. 441), and, as noted above, section 433 confers discretion to allow amendment of the notice.

In passing on this matter the court has borne in mind that the numerous City Courts in this State are governed as to procedure by a bewildering potpourri of general statutes, special statutes, and city charters. Ascertaining the procedure in any particular City Court is frequently a problem of no little complexity. Consequently it behooves an attorney venturing into the court of a strange city, to reconnoiter thoroughly the various laws that might apply.

In the interests of justice, this court denies plaintiff’s motion ■to dismiss the appeal and grants defendants’ motion to amend the notice of appeal to demand a trial de novo. The late payment of costs and filing of the undertaking is allowed.