Bortle v. Mellen

14 Abb. Pr. 228

• Court: New York Supreme Court
• Decided: February 15, 1862
• Status: Published

Opinion

Leonard, J.

The case of Beach a. Gregory (2 Abbotts’ Pr., 203; and 3 Ib., 78) is authority adverse to the defendants’ motion. On the other hand, Sheldon a. Wood (14 How. Pr., 18) is a case in which the right to permit exceptions to be filed after the time allowed by section 272 of the Code has expired, was exercised by the Superior Court.

The true construction of section 174 warrants the exercise of such 'authority in the discretion of the court.

Iri the present case the time to file exceptions was permitted by the defendants to elapse, after it had been extended by consent for several weeks beyond the time required by the Code.

I think no satisfactory excuse has been offered for this neglect, or for the neglect since occurring in not moving.

Without exceptions the appeal will not serve to obtain a review of the decision, and will not result in any practical utility to the defendant in procuring relief from the judgment.

The omission of the sureties to justify has been perhaps sufficiently excused; but it would be useless to permit the sureties to justify, and withhold the relief asked for in respect to the serving and filing case and exceptions.

The motion is denied without costs.