Berliner v. Pequa Club Ass'n

76 N.Y.S. 671

Opinion

PER CURIAM.

By the order appealed from, a motion of the plaintiff (appellant) to file an exception to the decision of the justice who tried the cause at special term was denied. Evidently the denial was placed upon the ground that no sufficient reason for the failure to file the exception was stated in the moving papers. All that appeared before the court was that through inadvertence the exception was not filed. The court below properly disposed of the motion.

It is apparent, however, that an appeal in this matter has been taken in good faith, and that the appellant has diligently proceeded to have the case made and settled, and has discovered the omission to file the exception necessary to the presentation of the appeal. Under the circumstances, we think that the order should be affirmed, with costs, but that the appellant should be permitted, on the payment of costs and disbursements of this appeal, to renew his motion upon proper papers for leave to file the exception.

Order affirmed, with $10 costs and disbursements, with leave to appellant, on payment of such costs, to renew on proper papers.