Dobyns v. Commercial Trust Co.

50 Misc. 629, 98 N.Y.S. 748

Opinion

Bischoff, J.

The defendant’s assertion, that the plaintiff’s time to appeal had expired when the notice of appeal was served, was based upon the technical sufficiency of the entry of judgment and notice of entry to set the time running. If the time had commenced to run when the notice of entry was served, the plaintiff was in default and could not be relieved; but where, as here, the bare technicality is asserted, the court is to give the intending appellant the benefit of any technicalities which may serve him, so far as the steps taken by his adversary may have been insufficient to fix the time for an appeal. Livingston v. N. Y. El. R. Co., 69 Hun, 474.

In the present case it appears that, when the notice of entry was served, the costs to be inserted in the judgment, taxed without notice, were noticed by the defendant for re-taxation a day later, the notice of re-taxation being served with the notice of entry; computing the time to appeal from the time of service of the notice of entry, the plaintiff’s notice of appeal was twenty-four hours late.

The entry of the judgment with the adjustment of costs still open, however, did not suffice to support a notice of entry which would operate to limit the time to appeal. The point has been directly decided (DeMott v. Kendrick, 63 Hun, 112), and the plaintiff was entitled to jhe order which he sought.

Soott and Tbuax, JJ., concur.'

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