Rohr v. Linch

78 Misc. 45, 137 N.Y.S. 752

• Court: Appellate Terms of the Supreme Court of New York
• Decided: October 15, 1912
• Status: Published

Opinion

Guy, J.

Plaintiff recovered a verdict on February 29, 1912, on' which judgment was entered on March 2, 1912, and a copy of the judgment with notice of entry was duly served on the same day.

On March fourth, defendant entered and on March fourth or sixth he served a copy of the usual order denying his motion for a new trial, which recited that it was entered on motion of the plaintiff’s attorney. This order was never served upon defendant, but was only served by defendant upon plaintiff.

On March 30, 1912, .defendant served a notice of appeal from both judgment and order.

The time to serve a notice of appeal from the judgment ex pired on March twelfth (Code Civ. Pro., § 3190), but the time to appeal from the order denying a motion for a new trial hacl not expired, because that order was never served upon the defendant. Code Civ. Pro., § 3190; Bayliss N. Tr. & App. 173; Harnett v. Westcott, 16 N. Y. St. Repr. 810; Kolatch v. Wiltchik, N. Y. L. J. March 16, 1909.

Service by the loser upon the winner does not limit the former’s time to appeal. Kilmer v. Hathorn, 78 N. Y. 228, 231, 232; Smith v. Havens Relief Soc., 115 App. Div. 185, 187; McGruer v. Abbott, 47 id. 191, 193.

Order reversed and motion granted, with ten dollars costs and disbursements of the appeal.

Seabury and Bijur, JJ., concur.

Order reversed and motion granted.