Bulkley v. Whiting Manufacturing Co.

136 A.D. 479, 121 N.Y.S. 159, 1910 N.Y. App. Div. LEXIS 57

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 4, 1910
• Status: Published

Opinion

Laughlin, J.:

. On the trial of tlie issues in this action before the court! and a • jury the plaintiff recovered, and.defendant appealed from the Order denying its motion'for a new trial and from the judgment entered upon the verdict. After hearing the appeal, this court, by an order duly made on the 28th day of Hay, 1909, affirmed, the judgment and order.' (132 App. Div. 929.) A certified copy of the order of affirmance, entered in the office oj the clerk of this court, together with the original case upon which the appeal was heard, was duly transmitted "pursuant to the provisions of section 1355 of the Code of Civil Procedure to the clerk of the county of blew York, where the judgment and order from which the appeal was taken were entered..: Thereafter and on the 16,th day of July, 1909, a judgment purporting to be in accordance with the order of this court attested by the county clerk, was entered in the office of the county clerk and it recites that it was . on "motion of the attorneys for the plaintiff. The judgment, however, was not in accordance with the order of this court, iii that it failed to recite that an appeal had been taken from the ordeii as-well as from the judgment, and that the order as well as the judgment, was affirmed. !

This-court, in Myers v. Lederer (119 App. Div. 332), toipk occasion to observe, that the entry of a judgment in the office of "the county clerk, to carry into effect an order of this, "court made on appeal, is A ministerial act and"with the exception of: taxing tlie •costs and disbursements for which a recovery is allowed by the "order, the county clerk has no authority to construe.an order of this court or to in any manner modify or change it, and that it is his duty to,enter the judgment in exact accordance therewith., As we. said in that case, while -the duty devolves upon the county clerk, we may take judicial notice of" the fact that according, to the .practice, the -judgments are usually prepared by the attorneys for ¡ the successful party. The- judgment, although entered in the office of the clerk of the -county, is nevertheless the .judgment of this court, for that is the judgment from- which any appeal to the Court of Appeals must be taken. The act of the clerk, however, being ministerial, lie having no discretion in the matter, it is not essential that a motion to correct such a judgment should be made to this court and the convenience of all persons concerned is doubtless best subserved by having such motions heard at Special Term, as has been the practice. The defendant moved at Special Term for an order directing that the judgment be amended in accordance with the order of this court. ,, Pending the decision of that motion the defendant, deeming that its time to appeal to the Court of Appeals would expire owing to the amendment of section 1325 of the Code of Civil Procedure by chapter 418 of the Laws of 1909, by which the time to appeal to that court from a judgment was changed from one year to sixty days, the same as from an order, duly filed and served a notice of appeal and undertaking on appeal on the 13th day of September, 1909. The motion to amend the judgment was granted on the 24th day of September, 1909. The defendant then moved at Special Term for leave to amend its notice of appeal to the Court of Appeals by reciting that the appeal was from the judgment as amended by said order and by reciting that this court affirmed the order as well as the judgment, and also for leave to serve a new undertaking on appeal to the Court of Appeals. That motion was granted. We are of opinion that the court properly ordered that the judgment be amended to conform to the order of this court, but we think the court at Special Term was without jurisdiction to amend the. notice of appeal to the Court of Appeals or to allow the defendant to file a further undertaking.

The appeal to the Court of Appeals from the judgment as originally entered was perfected by filing and serving the notice of appeal and undertaking. (Code Civ. Proc. § 1326.) Section 1303 of the Code of Civil Procedure, construed literally, would seem to confer authority upon the court from which as well as the court to which the appeal is taken, to relieve a party who has seasonably and in good faith served or filed a notice of appeal, but has omitted through mistake, inadvertence or excusable neglect to complete the service of it, “ or to do any other act necessary to perfect the appeal or to stay the execution of the judgment or order appealed from,” and such was formerly the practice. (Parker v. McCunn, 9 ; Mott v. Lansing, 5 Lans. 516, said to have been affirmed. See Lavalle v. Skelly, 90 N. Y. 548), but thereunder and under the corresponding provisions of the Code of Procedure (§ 327) the construction of the section by the Court of Appeals appears to be that the authority is conferred only upon the court of review in which the appeal is to be heard. In Nelson v. Tenney (113 N. Y. 616), where notice of appeal to the Court of Appeals had been duly and timely served and filed, but the appellant, failed to file an undertaking and on motion at Special, Term he was given leave to file an undertaking to. perfect his appeal nunc gyro tunc, the Court of Appeals held that the Special Term had no power to grant the relief and a motion to strike the cause from the calendar of the Court of Appeals was granted upon the ground that a satisfactory excuse for the failure of the appellant to serve and filé an undertaking had not been presented in that court. Without expressly referring to that case, but in accordance with, and evidently following the ruling therein, this court in Guilfoyle v. Pierce (22 App. Div. 131) reversed an order staying proceedings pending Un appeal to the Court of Appeals and granting leave to .the plaintiff to perfect his appeal by filing an Undertaking which he had omitted to do. The Court of Appeals itself, prior to that time, had refused to dismiss appeals where no undertaking had been filed or served, provided the appellant should perfect the appeal by filing an undertaking within a time specified, although it was declared by the court that the appeal, without the' undertaking, was ineffective for any purpose. (Architectural Iron Works v. City of Brooklyn, 85 N. Y. 652; Reese v. Boese, 92 id. 632.) After an appeal to the Court of Appeals has been perfected, that court reserves to itself the exclusive jurisdiction to decide whether it will hear or dismiss the appeal, and to decide any question relating to the appeal or its determination, including, as I understand its decisions, any question with respect to the sufficiency of the steps to perfect the appeal, or as to whether any further undertaking should be required by virtue of the provisions of section 1308 of the Code of Civil Procedure; but the Court of Appeals concedes that, the court of original jurisdiction retains jurisdiction of the cause- for all Other purposes, and, pending an appeal to the Court of Appeals, may entertain and grant a motion to vacate the judgment and order a new trial, or to correct the record and direct that a certified copy thereof be annexed to the appeal papers—of course it would be for the Court if Appeals to decide whether the correction so changed the record that the appeal should be heard — and may enforce the duties and obligations owing by attorneys to their clients. (Parks v. Murray, 109 N. Y. 646 ; Peterson v. Swan, 119 id. 662 ; Henry v. Allen, 147 id. 346; People ex rel. Hoffman v. Board of Education, 141 id. 86; Howey v. L. S. & M. S. R. Co., 15 Misc. Rep. 526.)

There is another objection to the order, in so far as it amends the notice of appeal and allows a further undertaking to be filed, and that is tfiat such an amendment cannot be allowed even by the Court of Appeals, where the effect would be to allow an appeal to' be heard where the time to take the appeal has expired, and the effect of the order in question would be to allow the notice'of appeal, which was from a judgment only, to stand as a notice of appeal from an order from which no appeal had been taken, and which at the time was not affected by the judgment. (Lavalle v. Skelly, 90 N. Y. 546; Parker v. McCunn, supra; Mott v. Lansing, supra ; Biggert v. Nichols, 18 Misc. Rep. 596; Fry v. Bennett, 16 How. Pr. 385.)

While it is not the province of this court to decide what relief, if any, the defendant may be entitled to in the Court of Appeals, either with respect to the notice of appeal originally filed and served or otherwise, it may, without impropriety, I think,, be observed that it would seem that the defendant would have a right to appeal from the .judgment as amended to conform to the order of this court, and that his time to appeal therefrom would not begin to run until he was duly served therewith so as to limit his time as if the original erroneous judgment has not been entered, and that, if necessary, he may obtain leave to withdraw the first appeal taken from the judgment as originally entered. We do not deem it necessary to express' any opinion on the question as to whether the defendant was required to appeal from the judgment as originally entered, in order ■ to prevent the time for taking such appeal from running, or as to whether an appeal to the Court of Appeals, in.so far as it is from the order denying the motion for a new trial, will be of any avail to him.

It follows, therefore, that the order should be reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.

Ingraham, P. J., Clarke, Scott and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.