McNulty Bros. v. Anderson Construction Co.

New York County Courts

McNulty Bros. v. Anderson Construction Co.

41 Misc. 2d 669, 246 N.Y.S.2d 254, 1963 N.Y. Misc. LEXIS 1381

DecidedNovember 20, 1963

StatusPublished

This text of 41 Misc. 2d 669 (McNulty Bros. v. Anderson Construction Co.) is published on Counsel Stack Legal Research, covering New York County Courts primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McNulty Bros. v. Anderson Construction Co., 41 Misc. 2d 669, 246 N.Y.S.2d 254, 1963 N.Y. Misc. LEXIS 1381 (N.Y. Super. Ct. 1963).

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Opinion

Thomas M. Stark, J.

Plaintiff-respondent moves to dismiss the instant appeal on the grounds that it is improperly taken and that the appellant has failed to prosecute it. Default judgment was taken in Justice’s Court, Town of Huntington on August 31,1960. Defendant served a notice of appeal on September 7,1960 pursuant to section 426 of the Justice Court Act. The respondent now argues that section 5511 of the Civil Practice Law and Rules which prohibits appeals from default judgments by the aggrieved party supersedes section 428 of the Justice Court Act. Section 101 of the Civil Practice Law and Rules states, however: ‘ ‘ The civil practice law and rules shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute.”

[670]*670Such appeals are, therefore, governed by section 426 of the Justice Court Act.

The delay of over three years in noticing this appeal for argument is not excusable and the motion is granted.

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Thomas M. Stark, J.

Plaintiff-respondent moves to dismiss the instant appeal on the grounds that it is improperly taken and that the appellant has failed to prosecute it. Default judgment was taken in Justice’s Court, Town of Huntington on August 31,1960. Defendant served a notice of appeal on September 7,1960 pursuant to section 426 of the Justice Court Act. The respondent now argues that section 5511 of the Civil Practice Law and Rules which prohibits appeals from default judgments by the aggrieved party supersedes section 428 of the Justice Court Act. Section 101 of the Civil Practice Law and Rules states, however: ‘ ‘ The civil practice law and rules shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute.”

[670]*670Such appeals are, therefore, governed by section 426 of the Justice Court Act.

The delay of over three years in noticing this appeal for argument is not excusable and the motion is granted.

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Bluebook (online)

41 Misc. 2d 669, 246 N.Y.S.2d 254, 1963 N.Y. Misc. LEXIS 1381, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcnulty-bros-v-anderson-construction-co-nycountyct-1963.