Gradl v. Saulpaugh

268 A.D. 787, 49 N.Y.S.2d 51, 1944 N.Y. App. Div. LEXIS 3477

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 19, 1944
• Status: Published

Opinion

Actions to recover damages for wrongful death and for property damage were consolidated and tried together. After the entry of judgment in favor of respondents herein, Benjamin M. Gold-stein, one of the counsel who appeared on the trial for appellant herein, seasonably filed a notice of appeal on behalf of appellant in the County Clerk’s office and served a copy on the attorney for respondents. The latter, by mail, returned the notice of appeal on the last day for filing and serving such a notice, claiming that it was ineffective because it was signed by Goldstein and not by the attorneys of record, and that Goldstein never had been substituted as attorney for appellant herein. Appellant moved to require respondents’ attorney to receive and accept the notice of appeal nunc pro tune. The motion was denied. Order reversed on the law and the facts, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. (Eckert v. Truman, 158 App. Div. 939; Title Guaranty & Trust Co. v. Uniform Fibrous T. Co., 127 Misc. 183; Slepin v. Beck, 84 Misc. 254; Davis v. Solomon, 25 Misc. 695; Matter of Tonkonogoff, 180 Misc. 782.) Close, P. J., Carswell, Johnston, Adel and Lewis, JJ., concur.