Riggs v. . Waydell

New York Court of Appeals

Riggs v. . Waydell

78 N.Y. 586, 1879 N.Y. LEXIS 953

CourtNew York Court of Appeals

DecidedNovember 18, 1879

StatusPublished

Cited by7 cases

This text of 78 N.Y. 586 (Riggs v. . Waydell) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Riggs v. . Waydell, 78 N.Y. 586, 1879 N.Y. LEXIS 953 (N.Y. 1879).

Pincite

Opinion

Per Curiam.

We concur with the opinion of the Special and that of the General Term, that the offer made by the defendant to allow judgment to be taken was imperfect, because it was not in conformity to the Code, and that there was no waiver of the defect by the notice served by the plaintiff’s attorney upon the defendant’s attorney, or in any other manner.

We are also of the opinion that if the case was one in which the courts were authorized to allow the defendants to serve the affidavit required nunc pro tunc, it was a matter of discretion with the Special Term, and having once been refused there, as well as by the General Term, no appeal lies to this court. As this relief must be first obtained before the question as to costs arises, the decision of the motion does not determine the right to costs, and make the order appealable, within the cases cited. (See Sturgis v. Spofford, 58 N. Y., 103; Tilton v. Beecher, 59 id., 176; Russell v. Conn, 20 id., 81.)

The appeal should be dismissed, with costs and disbxirsements.

All concur.

Appeal dismissed.

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Per Curiam.

We concur with the opinion of the Special and that of the General Term, that the offer made by the defendant to allow judgment to be taken was imperfect, because it was not in conformity to the Code, and that there was no waiver of the defect by the notice served by the plaintiff’s attorney upon the defendant’s attorney, or in any other manner.

We are also of the opinion that if the case was one in which the courts were authorized to allow the defendants to serve the affidavit required nunc pro tunc, it was a matter of discretion with the Special Term, and having once been refused there, as well as by the General Term, no appeal lies to this court. As this relief must be first obtained before the question as to costs arises, the decision of the motion does not determine the right to costs, and make the order appealable, within the cases cited. (See Sturgis v. Spofford, 58 N. Y., 103; Tilton v. Beecher, 59 id., 176; Russell v. Conn, 20 id., 81.)

The appeal should be dismissed, with costs and disbxirsements.

All concur.

Appeal dismissed.

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Bluebook (online)

78 N.Y. 586, 1879 N.Y. LEXIS 953, Counsel Stack Legal Research, https://law.counselstack.com/opinion/riggs-v-waydell-ny-1879.

Opinion

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