Pensa v. Pensa

23 N.Y.S. 186, 3 Misc. 417, 1893 N.Y. Misc. LEXIS 289

• Court: The Superior Court of the City of New York and Buffalo
• Decided: May 1, 1893
• Status: Published

Opinion

FREEDMAN, J.

The notice of appeal from the judgment, signed by Frank J. Keller as attorney for the defendant, and all subsequent papers served by him as such attorney, having been severally returned to him by the attorney for the plaintiff, on the ground that said Keller was not the attorney of record for the defendant, and had not been substituted as such, the question presented by the appeal is whether, on the motion below, plaintiff’s attorney should nevertheless have been compelled to accept service of the said papers. Ah appeal from a judgment is not to be regarded as a new action or proceeding to enforce the judgment, within the meaning of the decisions to the effect that in such a case a new attorney, duly authorized for the purpose, may appear without formal substitution, but it is a proceeding in the action for the correction of errors alleged to have been committed, and to effect, if possible, the reversal of the judgment for error. The clear weight of authority is that the appeal cannot be taken by an attorney who has not been regularly substituted in place of the attorney who appeared in the action. Shuler v. Maxwell, 38 Hun, 240, 101 N. Y. 657; Miller v. Shall, 67 Barb. 446; Thierry v. Crawford, 33 Hun, 366. The contrary decision made at special term in Webb v. Milne, 10 Civil Proc. R. 27, should therefore be disregarded. The conclusion already reached renders it unnecessary to consider whether the defendant was guilty of loches in making the motion. The order should be affirmed.