Spindler v. Gibson

Hatch, J.: The papers contained in this appeal show laches upon the part of the respondent which would have justified the court in refusing relief, so far as the motion was addressed, to the favor of the court. It is equally true, however, that it was within the power of the court to grant relief and extend the respondent’s time to serve her case, procure the same to be settled, and otherwise to perfect the appeal. The order from which the appeal is taken vacated a former order of the Special Term, which dismissed the plaintiff's appeal, and upon terms and certain conditions permitted a case to be served and the appeal perfected. The Special Term has full power to make all orders connected with the preparation, service and filing of the case upon appeal, and this court will not entertain applications covering such subjects. But the appeal itself, when properly taken, is removed from the Special Term into the Appellate Division, and the latter court alone has jurisdiction of the same; the Special Term, as to it, is without power to make an order affecting it. If there be failure to make or serve the case, or other omission to perfect the appeal and bring it to a hearing, the remedy is by motion in this court to dismiss the appeal. There was no authority, therefore, for the dismissal below, and the appellant was not justified in returning the cases prepared upon the appeal based upon such order. The court, however, possessed full power to open the default, set aside its former order, and permit the respondent to serve her case. The order appealed from should, therefore, be affirmed, so far as it permits the service of the appeal papers upon the terms imposed, with ten dollars costs and disbursements "to the respondent. Yah Brunt, P. J., Ingraham and McLaughlin, JJ., concurred. Order affirmed, so far as it permits service of the appeal papers upon the terms imposed, with ten dollars costs and disbursements to the. respondent.