Levien v. Webb

Appellate Terms of the Supreme Court of New York

Levien v. Webb

30 Misc. 742, 63 N.Y.S. 155

CourtAppellate Terms of the Supreme Court of New York

DecidedMarch 15, 1900

StatusPublished

This text of 30 Misc. 742 (Levien v. Webb) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Levien v. Webb, 30 Misc. 742, 63 N.Y.S. 155 (N.Y. Ct. App. 1900).

Pincite

Opinion

Per Curiam.

The defendant, seeking to appeal from a judgment of the General Term of the City Court, allowed the statutory time for appealing to expire before serving his notice of appeal. He now contends that the notice of entry of judgment, served upon him; was ineffective to set running the time within which he must appeal. He bases this contention upon the assertion that the copy judgment, served upon him, was not duly “attested ” by the clerk, by which we understand him- to mean that the copy served was not certified or signed by the clerk. The copy served, purporting to be a copy of the judgment, showed that the judgment itself had been signed by the clerk, as required by the Code of Civil Procedure, and hence it appeared from the copy as served that a valid judgment had been properly entered. All that the [743]*743plaintiff was required to do was to serve a true copy of the judgment, as entered. If the name of the clerk had not been copied into the judgment, as served, the defendant would have been entitled to assume, either, that the judgment had not been properly entered, or, that the copy served was not a true copy of the judgment as entered. In either case, his time to appeal would not have been set running. Good v. Deland, 119 N. Y. 153, and Livingston v. N. Y. El. R. R. Co., 60 Hun, 473, are not authorities in favor of the defendant’s position, because, in both of these cases, the objection was founded upon the fact that the copy judgment, as served, did not show that the judgment, as entered, had been properly signed by the clerk. It has never been deemed necessary to serve a certified copy of a judgment or order, in order to limit the time for appeal. The only object of serving a copy judgment is to give the party upon whom it is served notice of the fact of its entry, and, for such purpose, certification is not required.

The motion to dismiss the appeal must he granted, with costs.

Present: Truax, P. J., Scott and Dugbo, JJ.

Appeal dismissed, with costs.

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Per Curiam.

The defendant, seeking to appeal from a judgment of the General Term of the City Court, allowed the statutory time for appealing to expire before serving his notice of appeal. He now contends that the notice of entry of judgment, served upon him; was ineffective to set running the time within which he must appeal. He bases this contention upon the assertion that the copy judgment, served upon him, was not duly “attested ” by the clerk, by which we understand him- to mean that the copy served was not certified or signed by the clerk. The copy served, purporting to be a copy of the judgment, showed that the judgment itself had been signed by the clerk, as required by the Code of Civil Procedure, and hence it appeared from the copy as served that a valid judgment had been properly entered. All that the [743]*743plaintiff was required to do was to serve a true copy of the judgment, as entered. If the name of the clerk had not been copied into the judgment, as served, the defendant would have been entitled to assume, either, that the judgment had not been properly entered, or, that the copy served was not a true copy of the judgment as entered. In either case, his time to appeal would not have been set running. Good v. Deland, 119 N. Y. 153, and Livingston v. N. Y. El. R. R. Co., 60 Hun, 473, are not authorities in favor of the defendant’s position, because, in both of these cases, the objection was founded upon the fact that the copy judgment, as served, did not show that the judgment, as entered, had been properly signed by the clerk. It has never been deemed necessary to serve a certified copy of a judgment or order, in order to limit the time for appeal. The only object of serving a copy judgment is to give the party upon whom it is served notice of the fact of its entry, and, for such purpose, certification is not required.

The motion to dismiss the appeal must he granted, with costs.

Present: Truax, P. J., Scott and Dugbo, JJ.

Appeal dismissed, with costs.

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Bluebook (online)

30 Misc. 742, 63 N.Y.S. 155, Counsel Stack Legal Research, https://law.counselstack.com/opinion/levien-v-webb-nyappterm-1900.

Opinion

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