Woodmere Cedarhurst Corp. v. National City Bank

Appellate Division of the Supreme Court of New York

Woodmere Cedarhurst Corp. v. National City Bank

247 A.D. 173, 286 N.Y.S. 637, 1936 N.Y. App. Div. LEXIS 8208

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 23, 1936

StatusPublished

This text of 247 A.D. 173 (Woodmere Cedarhurst Corp. v. National City Bank) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Woodmere Cedarhurst Corp. v. National City Bank, 247 A.D. 173, 286 N.Y.S. 637, 1936 N.Y. App. Div. LEXIS 8208 (N.Y. Ct. App. 1936).

Pincite

Opinion

Per Curiam.

Leave to appeal to this court from a determination of the Appellate Term herein was granted by order entered January 31, 1936. Notice of appeal, pursuant to such permission, was served and filed on March third.

In all cases where an appeal may be taken as of right to the Appellate Division, the time to appeal is limited to “ thirty days after service upon the attorney for the appellant of a copy of the judgment or order appealed from and a written notice of the entry thereof except that the party entering the judgment or order, or serving the notice of the entry thereof, shall not be entitled to further notice to limit his time to appeal.” (Civ. Prac. Act, § 612.)

In this case no right of appeal existed until it was granted by this court. Section 630 of the Civil Practice Act provides that “ the provisions relating to the hearing of appeals to the Appellate Division in an action in the Supreme Court and to subsequent proceedings thereupon apply to an appeal to the Supreme Court or the Appellate Division thereof from a judgment or order of an inferior or local court in an action, except as otherwise provided by statute.” Hence, as appellant was required to move for leave to appeal, no longer time in which to serve and file its notice of appeal was allowed, after such right was obtained, than is provided for in a case where an appeal can be taken as of right. That right having been obtained by the order of this court entered on January 31, 1936, plaintiff’s time to file and serve its notice of appeal expired thirty days thereafter; and the service and filing of the same on March third was too late.

The motion should be denied.

Present — Martin, P. J., McAvoy, O’Malley, Dore and Cohn, JJ.

Motion denied.

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Per Curiam.

Leave to appeal to this court from a determination of the Appellate Term herein was granted by order entered January 31, 1936. Notice of appeal, pursuant to such permission, was served and filed on March third.

In all cases where an appeal may be taken as of right to the Appellate Division, the time to appeal is limited to “ thirty days after service upon the attorney for the appellant of a copy of the judgment or order appealed from and a written notice of the entry thereof except that the party entering the judgment or order, or serving the notice of the entry thereof, shall not be entitled to further notice to limit his time to appeal.” (Civ. Prac. Act, § 612.)

In this case no right of appeal existed until it was granted by this court. Section 630 of the Civil Practice Act provides that “ the provisions relating to the hearing of appeals to the Appellate Division in an action in the Supreme Court and to subsequent proceedings thereupon apply to an appeal to the Supreme Court or the Appellate Division thereof from a judgment or order of an inferior or local court in an action, except as otherwise provided by statute.” Hence, as appellant was required to move for leave to appeal, no longer time in which to serve and file its notice of appeal was allowed, after such right was obtained, than is provided for in a case where an appeal can be taken as of right. That right having been obtained by the order of this court entered on January 31, 1936, plaintiff’s time to file and serve its notice of appeal expired thirty days thereafter; and the service and filing of the same on March third was too late.

The motion should be denied.

Present — Martin, P. J., McAvoy, O’Malley, Dore and Cohn, JJ.

Motion denied.

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Bluebook (online)

247 A.D. 173, 286 N.Y.S. 637, 1936 N.Y. App. Div. LEXIS 8208, Counsel Stack Legal Research, https://law.counselstack.com/opinion/woodmere-cedarhurst-corp-v-national-city-bank-nyappdiv-1936.