Livingston v. New York Elevated Railroad

New York Supreme Court

Livingston v. New York Elevated Railroad

13 N.Y.S. 706, 18 N.Y. Civ. Proc. R. 369, 1890 N.Y. Misc. LEXIS 3249

DecidedJune 30, 1890

StatusPublished

This text of 13 N.Y.S. 706 (Livingston v. New York Elevated Railroad) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Livingston v. New York Elevated Railroad, 13 N.Y.S. 706, 18 N.Y. Civ. Proc. R. 369, 1890 N.Y. Misc. LEXIS 3249 (N.Y. Super. Ct. 1890).

Pincite

Opinion

Ingraham, J.

I think the notice of appeal was served on the afternoon of June 7th. The person making the service swears positively to that effect, and the affidavits of the plaintiff merely that persons going into the office did not see the paper on the floor. It does not appear how the paper could be served on Sunday, when the building was probably closed.' The woman who «leans the office says she went in early Monday morning, and there found the [707]*707paper on the floor. It might well be that on Saturday evening, when the janitor went into the ofiice, it was somewhat dark, and for that reason the paper was not noticed. The only question is whether the notice of appeal was left in a conspicuous place in the ofiice of the plaintiff’s attorney. When the clerk serving the paper arrived three he found the office door closed, with a hole through the door, and into that hole the paper was placed; and it appears that, after going through the hole, it fell on the floor in front of the door. I am inclined to think that this was a conspicuous place in the office. It was noticed by the person going into the office on Monday morning, and placed upon the desk of plaintiff’s attorney, and received by him on Monday morning, when he arrived at his office. As the defendants evidently intended to appeal from the judgment in good faith, and as the notice of appeal was seasonably served upon plaintiff’s attorney, the court has power, under section 1303 of the Code, to permit the notice of appeal to be served upon the clerk; and under the circumstances I think that relief should be granted, defendants to pay costs of this motion.

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Ingraham, J.

I think the notice of appeal was served on the afternoon of June 7th. The person making the service swears positively to that effect, and the affidavits of the plaintiff merely that persons going into the office did not see the paper on the floor. It does not appear how the paper could be served on Sunday, when the building was probably closed.' The woman who «leans the office says she went in early Monday morning, and there found the [707]*707paper on the floor. It might well be that on Saturday evening, when the janitor went into the ofiice, it was somewhat dark, and for that reason the paper was not noticed. The only question is whether the notice of appeal was left in a conspicuous place in the ofiice of the plaintiff’s attorney. When the clerk serving the paper arrived three he found the office door closed, with a hole through the door, and into that hole the paper was placed; and it appears that, after going through the hole, it fell on the floor in front of the door. I am inclined to think that this was a conspicuous place in the office. It was noticed by the person going into the office on Monday morning, and placed upon the desk of plaintiff’s attorney, and received by him on Monday morning, when he arrived at his office. As the defendants evidently intended to appeal from the judgment in good faith, and as the notice of appeal was seasonably served upon plaintiff’s attorney, the court has power, under section 1303 of the Code, to permit the notice of appeal to be served upon the clerk; and under the circumstances I think that relief should be granted, defendants to pay costs of this motion.

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Bluebook (online)

13 N.Y.S. 706, 18 N.Y. Civ. Proc. R. 369, 1890 N.Y. Misc. LEXIS 3249, Counsel Stack Legal Research, https://law.counselstack.com/opinion/livingston-v-new-york-elevated-railroad-nysupct-1890.