Clapp v. . Hawley

Rapallo, J. This appeal cannot be disposed of on the ground that it involves a mere question of the practice of the court below which that court has power to regulate. By section 784 of the Code of Civil Procedure, courts and judges are expressly prohibited from allowing an appeal to be taken after the expiration of the time fixed by law, except in some cases of° death. To compel the successful party to accept notice of appeal after that time has expired, is in substance and effect to allow the appeal. As the time fixed by law was in this case thirty days after service of a copy of the judgment, with written notice of the entry thereof, the power of the court to make the order now appealed from, depended upon the question whether the prescribed time had expired, and to determine that question it is necessary to decide whether the service made on the 10th of February 1882, was regular, the attempt to appeal not having been made till December 14, 1883, more than twenty-two months thereafter. There being no controversy as to the facts, this question is necessarily one of law. *614 The order affects a substantial right. If the defendants’ time to appeal had been cut off, the plaintiffs had an absolute right to the fruit of their recovery, of which it was not in the power of the court to deprive them. ( Wait v. Van Allen, 22 N. Y. 321.) We must therefore meet the question, whether the requirement that a copy of the judgment be served, had been complied with. The sufficiency of the notice of its entry is not disputable. The paper served on the 10th of February, 1882, was indorsed with the title of the cause, “ Copy Judgment,” and a notice that it was “ a copy of a judgment entered in this action in the office of the clerk of Westchester county, New York, on the 4th of February, 1882.” The notice was duly subscribed with the \pame and address of the plaintiffs’ attorney. These papers were retained by the defendants’ attorneys, and no offer to return them, or any objection to their regularity was ever made, until the present motion was noticed in February, 1884. The only objection to the copy judgment now suggested is, that the draft judgment filed for the purpose of entry, in the clerk’s office, had appended to it the signature of the judge upon whose decision the judgment was to be entered, while no copy of such signature was appended to the copy of the judgment, as entered, served on the defendants’ attorneys. This signature ‘was no part of the judgment entered, nor was it necessary for any purpose. Where a final judgment is awarded by the decision of the court, or the report of a referee, after the trial of issues of fact, it is made by section 1228 of the Code, the duty of the clerk, on filing the decision or report, to enter judgment in conformity therewith, without any further warrant. It is only where an interlocutory judgment is rendered, with a direction that the final judgment be settled by the court or referee, that the signature of the judge or referee to the final judgment, is required. (Code, § 1231.) The judgment entered in this case on the decision of the court, was a final one, as appears from the affidavits, and needed no signature. The signature of the judge simply relieved the clerk from the neces *615 sity of comparing the decision of the court with the proposed judgment furnished by the plaintiffs’ attorney, to see that they corresponded. It was no part of the judgment and was wholly superfluous. (Loeschigk v. Addison, 3 Rob. 331.) The decision was the only authority for entering the judgment. The entry of judgment is the act of the clerk, and he might himself have prepared and entered it, or he could adopt the form prepared by the plaintiffs’' attorney. If to such form the plaintiffs’ attorney had appended his own certificate that it conformed to the decision, and a request to the clerk to enter it as the judgment, it would hardly be pretended that if the' clerk had adopted and filed such form as the judgment, a copy of the certificate must be served, to limit the time to appeal. The signature of the judge in this case was no more a part of the judgment than would have been the certificate of the attorney in the case supposed. The order of the General Term should be reversed, and that of the Special Term affirmed with costs. All concur. Ordered accordingly.