New York City Baptist Mission Society v. Tabernacle Baptist Church

Pryor, J. By section 1351 of the Code, an appeal “ must be taken within thirty days after service, upon the attorney for the appellant, of a copy of the judgment appealed from, and a written notice of the entry thereof.” It is conceded that the attorney for the defendant did not take his appeal within the prescribed period after service of a copy of the judgment and notice of entry. But he answers that the judgment was not numbered and folioed in conformity with the requirements of rule 19; and that as the rule forbids the clerk to file a paper not so numbered and folioed, the judgment-has not, in legal effect, been entered. I cannot concur in this conclusion. ¡Neither expressly nor by implication does the rule invalidate the judgment for noncompliance with its provisions. Had so fatal a consequence of the irregularity been intended, surely the convention of judges would have declared it in terms. Indeed, since the .Code, section 1236, prescribes the mode of entering judgment,, it is a question whether the effect of such entry may be nullified by any regulation of practice. At all events, by section 721 of the Code, it is expressly provided that no judgment shall be “ impaired or affected * * * for an informality in entering judgment or making up the judgment-roll.” But, though the judgment be valid, the irregularity in its' entry is still a fact, and I am to determine whether that irregularity arrests the lapse of time within which to. appeal. As it is the duty of the attorney to prepare and furnish the judgment-roll to the clerk (Code, § 1238), it is the attorney’s fault if the papers be not properly numbered and folioed. [734] Here, then, is a judgment filed in violation of a rule of court, and for its being so filed the attorney is responsible. It is of -the irregular entry of judgment that the attorney gave notice, and it is this notice which is supposed to set running the time within which to appeal. “ 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.” Kelly v. Sheehan, 76 N. Y. 325, 326. Still, the question is, not as to the informality in the entry of judgment, but as to the regularity of the notice of entry. In no case has the time to appéal been held elapsed because of a defect in the entry of judgment. Obviously, such defect has no conceivable relation to the time of appeal, while that time is measured from the.notice of entry. Hot the entry of judgment, but the notice, is the terminus a quo. In every case, therefore, where an appellant has been let in after the apparent expiration of the statutory period, the reason of decision was that no legal notice of the entry of judgment had been given. But here that notice itself is not challenged. It is in every respect regular, was duly served, admission indorsed of “ due and timely service,” and it is retained by the appellant’s attorney. To grant this motion would be in effect to enlarge the time limited by statute for an appeal. Parsons v. Winne, 17 Week. Dig. 236. Motion denied, with costs.