Falker v. New York, West Shore & Buffalo Railway Co.

New York Court of Appeals

Falker v. New York, West Shore & Buffalo Railway Co.

2 N.E. 628, 100 N.Y. 86, 55 Sickels 86, 1885 N.Y. LEXIS 946

CourtNew York Court of Appeals

DecidedOctober 6, 1885

StatusPublished

Cited by5 cases

This text of 2 N.E. 628 (Falker v. New York, West Shore & Buffalo Railway Co.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Falker v. New York, West Shore & Buffalo Railway Co., 2 N.E. 628, 100 N.Y. 86, 55 Sickels 86, 1885 N.Y. LEXIS 946 (N.Y. 1885).

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Opinion

Rapallo, J.

We think the notice of entry of judgment complied with rule 2, which provides that “ all papers served or filed must be indorsed or subscribed with the name of the attorney or attorneys, and his or their office address or place of business.” The notice was signed by the plaintiff’s attorneys and was indorsed upon the copy judgment served therewith. The whole paper was indorsed with the names of the plaintiff’s attorneys and their office address. The rule does not require that the office address be stated more than once upon the same paper or set of papers.

The other objection stated is that the notice was not properly addressed. The attorneys of record were Waters, McLellan & Dillayc. The notice was served at the office where they transacted their business, was received by their managing clerk and marked by him and entered in their register, but it was addressed to the firm of Waters & McLellan, who occupied the same office. On previous occasions admissions of service *89 of papers in this action, served at the same office and addressed to Waters, McLellan & Dillaye, had been signed with the firm name of Waters & McLellan. Waters belonged to both firms, and the former firm existed only with reference to unfinished business. There is no rule covering such a case. The notice was served at the proper office and delivered to the proper person, and was retained, and as no one could have been prejudiced by the omission to insert in the address the names of all the partners in the firm of attorneys, we think the service should be held sufficient. Although strict practice must be pursued to limit the time to appeal, and even a technical irregularity in giving the required notice will be considered, still there must be some irregularity, and a mere inaccuracy in the notice which violates no rule of practice and is in itself immaterial, will not be sufficient to avoid it.

The appeal not having been taken until seventy-three days after the service of the copy judgment and notice of entry, was too late, and the motion to dismiss should have been granted.

Order appealed from reversed and motion granted, with costs.

All concur.

Ordered accordingly.

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Rapallo, J.

We think the notice of entry of judgment complied with rule 2, which provides that “ all papers served or filed must be indorsed or subscribed with the name of the attorney or attorneys, and his or their office address or place of business.” The notice was signed by the plaintiff’s attorneys and was indorsed upon the copy judgment served therewith. The whole paper was indorsed with the names of the plaintiff’s attorneys and their office address. The rule does not require that the office address be stated more than once upon the same paper or set of papers.

The other objection stated is that the notice was not properly addressed. The attorneys of record were Waters, McLellan & Dillayc. The notice was served at the office where they transacted their business, was received by their managing clerk and marked by him and entered in their register, but it was addressed to the firm of Waters & McLellan, who occupied the same office. On previous occasions admissions of service *89 of papers in this action, served at the same office and addressed to Waters, McLellan & Dillaye, had been signed with the firm name of Waters & McLellan. Waters belonged to both firms, and the former firm existed only with reference to unfinished business. There is no rule covering such a case. The notice was served at the proper office and delivered to the proper person, and was retained, and as no one could have been prejudiced by the omission to insert in the address the names of all the partners in the firm of attorneys, we think the service should be held sufficient. Although strict practice must be pursued to limit the time to appeal, and even a technical irregularity in giving the required notice will be considered, still there must be some irregularity, and a mere inaccuracy in the notice which violates no rule of practice and is in itself immaterial, will not be sufficient to avoid it.

The appeal not having been taken until seventy-three days after the service of the copy judgment and notice of entry, was too late, and the motion to dismiss should have been granted.

Order appealed from reversed and motion granted, with costs.

All concur.

Ordered accordingly.

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Bluebook (online)

2 N.E. 628, 100 N.Y. 86, 55 Sickels 86, 1885 N.Y. LEXIS 946, Counsel Stack Legal Research, https://law.counselstack.com/opinion/falker-v-new-york-west-shore-buffalo-railway-co-ny-1885.

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