Miller v. Shall

67 Barb. 446

• Court: New York Supreme Court
• Decided: June 15, 1875
• Status: Published

Opinion

Hardin, J.

It was held in Humphrey v. Chamberlain (11 N. Y., 274,) that “the Supreme Court has not power to relieve a party from an omission to appeal to the General Term from a judgment within the time prescribed by law.”

The notice of judgment served January 6, 1873, had the effect to limit the plaintiff’s right to appeal, whether it was received by her attorneys or not. The service was complete when the notice was mailed properly addressed, &c. (Morris v. Morange, 17 Abb., 86; affirmed by Court of Appeals, see 31 How., 639.)

The 15th rule-of this court provides that an attorney may be changed by the order of the court or a judge thereof, not otherwise. No such order was obtained prior to the service of notice of appeal by Morgan & Rafter, and the return thereof in July, 1873, and so far as the defendant was concerned he was right in returning the notice of appeal, and treating Culver & Burchard as the plaintiff’s attorneys of record. (Parker v. City of Williamsburgh, 13 How., 250.) An order, and notice of substitution, are essential to render the change of attorneys regular. Brown, J., says, in the case last cited, (page 251,) that “without notice, he could not safely serve his papers upon the substituted attorney, and treat him as the real representative of the party.” There must be notice of substitution given, to render it effectual. (Bogardus v. Richtmeyer, 3 Abb., 179.)

[Herkimer Special Term, June, 1875.

The plaintiff’s learned counsel claimed on the argument of the motion, that the appeal might be regarded as a new action, and therefore that it might be brought by other attorneys than those appearing on the record prior to judgment. No case was cited supporting the argument. None has been found by the court, holding to the extent of the argument. But on the contrary, Hoffman, J., rules the other way in Fry v. Bennett, (7 Abb., 365.) He says: “It has been urged that an appeal is a new action. With respect, I regard this position as clearly indefensible.”

These views lead to the conclusion that no appeal was regularly taken before the expiration of the time limited by the statute within which an appeal may be brought.

There can be no benefit derived by the plaintiff in having a case and exceptions, in the absence of an appeal. The laches of the plaintiff have been very great. The motion must be denied, with $10 costs.

Hardin, Justice.]