Eagle v. Cherney

Appellate Division of the Supreme Court of New York

Eagle v. Cherney

259 A.D. 1101, 21 N.Y.S.2d 226, 1940 N.Y. App. Div. LEXIS 8134

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 2, 1940

StatusPublished

This text of 259 A.D. 1101 (Eagle v. Cherney) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Eagle v. Cherney, 259 A.D. 1101, 21 N.Y.S.2d 226, 1940 N.Y. App. Div. LEXIS 8134 (N.Y. Ct. App. 1940).

Pincite

Opinion

The motion here presented is made in an action which is the aftermath of a suit brought to foreclose a mortgage upon property of which this [1102]*1102plaintiff was the owner of the equity of redemption. The sale under the judgment in the foreclosure suit was had prior to December, 1929. This action was brought in 1936. It first came before this court on an appeal from an order directing judgment on the pleadings in favor of the defendants. That order and the judgment entered thereon were reversed. [See 253 App. Div. 862.] A trial was had which resulted in a judgment dismissing plaintiff’s complaint. An appeal taken in 1939, was, on April 1, 1940, dismissed because of failure to prosecute. On April 15, 1940, an order was made reinstating the appeal “ upon the condition that appellant prepares, files and serves his printed record and brief by June 20, 1940 (original exhibits may be filed) and plaintiff be ready to argue the case on July 1st, 1940.” Upon an order to show cause returnable on July first, plaintiff-appellant sought leave to prosecute the appeal upon a typewritten record. From the bench it was determined that appellant be permitted to prosecute her appeal upon a typewritten record and that the argument take place forthwith. Argument was had upon the merits upon what purported to be a record. Upon taking the matter up for consideration it appears that a proper record is not before us. We, therefore, have considered the merits only to determine whether leave to appeal upon a proper typewritten record should be granted. The order made from the bench on July first permitting the argument on a typewritten record is rescinded and revoked. We have examined all the papers presented by the appellant with a view to ascertain whether there is merit to the appeal and find none. The application to reinstate the appeal for failure to comply with the order of April 15th, 1940, is denied and the application to argue the appeal upon a typewritten record is denied upon the merits and we reaffirm the dismissal of the appeal. Hill, P. J., Crapser, Bliss, Heffeman and Foster, JJ., concur.

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The motion here presented is made in an action which is the aftermath of a suit brought to foreclose a mortgage upon property of which this [1102]*1102plaintiff was the owner of the equity of redemption. The sale under the judgment in the foreclosure suit was had prior to December, 1929. This action was brought in 1936. It first came before this court on an appeal from an order directing judgment on the pleadings in favor of the defendants. That order and the judgment entered thereon were reversed. [See 253 App. Div. 862.] A trial was had which resulted in a judgment dismissing plaintiff’s complaint. An appeal taken in 1939, was, on April 1, 1940, dismissed because of failure to prosecute. On April 15, 1940, an order was made reinstating the appeal “ upon the condition that appellant prepares, files and serves his printed record and brief by June 20, 1940 (original exhibits may be filed) and plaintiff be ready to argue the case on July 1st, 1940.” Upon an order to show cause returnable on July first, plaintiff-appellant sought leave to prosecute the appeal upon a typewritten record. From the bench it was determined that appellant be permitted to prosecute her appeal upon a typewritten record and that the argument take place forthwith. Argument was had upon the merits upon what purported to be a record. Upon taking the matter up for consideration it appears that a proper record is not before us. We, therefore, have considered the merits only to determine whether leave to appeal upon a proper typewritten record should be granted. The order made from the bench on July first permitting the argument on a typewritten record is rescinded and revoked. We have examined all the papers presented by the appellant with a view to ascertain whether there is merit to the appeal and find none. The application to reinstate the appeal for failure to comply with the order of April 15th, 1940, is denied and the application to argue the appeal upon a typewritten record is denied upon the merits and we reaffirm the dismissal of the appeal. Hill, P. J., Crapser, Bliss, Heffeman and Foster, JJ., concur.

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Bluebook (online)

259 A.D. 1101, 21 N.Y.S.2d 226, 1940 N.Y. App. Div. LEXIS 8134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/eagle-v-cherney-nyappdiv-1940.