Raymond v. Tiffany

115 A.D. 350, 100 N.Y.S. 807, 1906 N.Y. App. Div. LEXIS 3690

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 5, 1906
• Status: Published

Opinion

Per Curiam:

The defendant Hosmer served a copy of his answer upon the attorneys for the defendants Louis C. Tiffany and others, pursuant to section 521 of the Code of Civil Procedure. The said attorneys having returned the answer, a motion was made to compel them to accept it. The motion was granted at the Special Term, the learned justice presiding handing down the following memorandum: “ The defendant Hosmer may serve his amended answer on payment of $20 costs to the defendants Tiffany, with leave to such defendants to answer within twenty days thereafter. Settle order on notice.” Both sides submitted an order for settlement on the above decision. The moving party’s order was not signed, but the order presented by the attorneys for the defendants Tiffany and others was signed and entered. That order recited that it was made “ on motion of Samuel T. D. Jones, attorney for said defendant Edward S. Hosmer, as trustee in bankruptcy of said Burnett Y. Tiffany.”

The defendant Hosmer desires and intends to appeal from so much of said order as imposes twenty dollars costs upon him, claiming that the service of his answer upon the other defendants was a matter of right and not a matter of favor, and, therefore, that the imposition of costs was not justified.

He, therefore, moved for a resettlement of the order as entered for the purpose of having stricken out the words “ on motion of Samuel T. D. Jones, attorney for said defendant Edward S. Hosmer, as trustee in bankruptcy of said Burnett Y. Tiffany,” and said motion to resettle being denied, he takes this appeal.

We are of the opinion that the motion should have been granted. • A party intending to appeal from an order or a part thereof, which he claims is in violation of his rights^ should not be compelled to run the hazard upon an appeal of having the point made against him that his appeal will not lie because the order below was granted upon his request. If the recital in the order states that the order was made upon Ms motion he does run that hazard. -It has been held that a party cannot appeal from a judgment or order entered upon his own motion.

The order appealed from should be reversed, with ten dollars costs and disbursements, and the, motion for a resettlement remitted to the justice making said order, with instructions to grant the relief prayed for.

Present O’Brien, P. J., Ingraham, Laughlin, Clarke and Scott, J J.

Order reversed, with ten dollars costs and disbursements, and the motion for resettlement remitted to the justice making said order, with instructions to grant the relief prayed for.