Morris v. Morange

17 Abb. Pr. 86, 26 How. Pr. 247

Opinion

By the Court.

Footnotes

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*—Sorugham, J.

Section 332 of the Code requires that an appeal must be taken within thirty days after written notice of the judgment or order shall have been given to the party appealing.

The appeal is taken by the service of a notice .in writing on the adverse party, and on the clerk with whom the judgment or order appealed from is entered, stating the appeal from the same, or some specified part thereof. (Code, § 327.)

The time to appeal, in this case, expired with the 19th day of March, 1863, and on that day the defendant Morange deposited in the post-office, in Rew York, a notice of appeal, addressed to the plaintiff’s attorney, “ Brooklyn, E. D.” and another to the “ Clerk of Kings County, Brooklyn.”

The object of section 332 is to limit the time within which appeals may be taken to thirty days, and unless notice is actually served on the clerk within that time, the right to appeal is lost. The Code and statutes have provided, that service of certain papers may be made in a manner therein specified; but, in the absence of such particular statutory provision, service of a written notice pan only be made by the delivery of the paper to the person upon whom it is to be served. An actual manual delivery may not be necessary, but the receipt of the paper by the person to be served is essential.

The provisions of the Code (§§ 410, 411), for service by mail, only allow such service upon parties to actions and their attorneys; and while they render the service of the notice of appeal upon the plaintiff’s attorney in this case sufficient, they * have no such effect as to the notice which the defendant was required to serve upon the clerk.

The notice mailed to the clerk was .not received by him until the 23d of March, 1863, four days after the time to appeal" expired.

The order should be affirmed.

Present, Brown, Scrugham, and Lora, JJ.