People ex rel. Manhattan Storage & Warehouse Co. v. Lilly

Dore, J. The issue is whether the time to appeal began to run against relator when the county clerk “ automatically ” entered, after signature by the Justice at Special Term, a proposed final order submitted by relator for settlement and signature. In a tax certiorari proceeding, after decision of the court relator prepared its form of proposed final order and caused the same to be served on the corporation counsel on July 7, 1947, with notice of settlement for July 9th. The final order, as submitted to Special Term, was signed by the Justice and sent to the county clerk’s office where it was automatically entered by the county clerk on July 16, 1947, in accordance with the practice which prevails in the county clerk’s office since the recent amendment to the Civil Practice Act which repealed former section 1557-a and enacted a new section in its place (L. 1947, ch. 592). On July 17th, a notation appeared in the New York Law Journal to the effect that the order had been signed. Relator served a notice of appeal on August 18, 1947, which was returned by the corporation counsel on August 19th upon the ground that it was not served within the thirty-day period prescribed by section 612 of the Civil Practice Act. Relator then moved for an order to compel the corporation counsel to accept the notice of appeal. Special Term denied the motion; relator appeals. Relator’s order was not submitted to the county clerk for entry by relator; it was a proposed order submitted for signature to the clerk of Special Term, Part VII. As no costs were allowed by the justice, and no additional fee was necessary by reason of the 1947 amendment under section 1557-a of the Civil Practice Act the order was entered “ automatically ” by the county clerk’s office. The exception to section 612 of the Civil Practice Act added by amendment in 1921 (L. 1921, ch. 372), is “ that the party entering the judgment or order * * * shall not be entitled to further notice to limit his time to appeal ” (italics mine). — 61 — Both the First and Second Departments for over a quarter of a century have held that it is only where the party or his attorney actually procures by his own act the entry of a judgment or order by presenting it for entry to the county clerk that no further act or notice is required (Moore & Co. v. Heymann, 207 App. Div. 416; Naftal v. Jarvis, 203 App. Div. 75 [1st Dept.]; Corporation of Scholes v. Ficke Warehouses, Inc., 204 App. Div. 329 [2d Dept.]). Thus in Moore v. Heymann (supra), construing the relevant part of section 612 of the Civil Practice Act, this court (by McAvoy, J.) unanimously held: “ We do not think that the amendment applies to a case where an order is entered by the clerk of the court without any application therefor by the party whose time is sought to be limited.” In Naftal v. Jarvis (supra) Dowling, J., stated for this court the reason for the amendment as follows: ‘ ‘ The exception made is evidently for the purpose of ending the seeming anomaly under the Code that a party entering a judgment should be required to be served with a copy thereof by his adversary before his time to appeal began to run from a judgment which he himself had entered.” As a matter of reason as well as authority and proper practice and procedure that should still be the construction of section 612. The present provisions of section 1557-a of the Civil Practice Act do not require a different construction. The courts have always jealously guarded the right to appeal (Kelly v. Sheehan, 76 N. Y. 325; Weeks v. Coe, 36 App. Div. 339; Good v. Daland, 119 N. Y. 153; Corporation of Scholes v. Ficke Warehouses, Inc., 204 App. Div. 329, supra). Thus in Kelly v. Sheehan (supra) the Court of Appeals said: “ There being no power in the court to relieve a party who fails to take an appeal in due time, however meritorious his excuse, the party undertaking to limit the time is held to strict practice.” It would be most inadvisable now to rule that the time for anyone to appeal is set in motion by a so-called automatic filing of an order by a clerk and bind the party as if the party himself had entered the judgment or order. The time to appeal is so short and the right to appeal is so vital, that no construction should be adopted which would start such time running against a party other than by service of a notice of entry or by an affirmative overt act by the party himself or his attorney in “ entering the judgment or order ” as the 1921 amendment states. — 62 — This has been the ruling in other Special Term decisions (People ex rel. N. Y. Towers, Inc., v. Chambers, 191 Misc. 638; People ex rel. Trustees of Columbia University v. Mills, N. Y. L. J., Feb. 24, 1948, p. 678, col. 1). The formal recitation in the final order as to the making thereof on relator’s motion is not conclusive. That question has been definitely determined by the Court of Appeals in Norton & Siegel, Inc., v. Nolan (276 N. Y. 392); see, also, Adreance v. Lorentzen (269 App. Div. 987). Under the rule claimed by the Tax Commission the time to appeal instead of being the certain and definite thirty-day period specified in the statute would depend on extrinsic issues of fact as to the date on which counsel succeeded in learning which of two orders the court had signed and which one of the two the clerk had automatically entered. By the statute, not such knowledge but “ entering ” the judgment or order is made the test. The order appealed from should be reversed, with $20 costs and disbursements to the appellant and relator’s motion to compel respondents to accept service of the notice of appeal should be granted.