El Dorado Aluminum Products, Inc. v. Jeros

Motion by plaintiff-appellant to vacate or modify the order of this court, dated December 20, 1961. By said order this court granted by default the defendants’ motion to dismiss plaintiff’s appeal to this court from an order of the City Court of the City of New York on the ground that such an appeal lies only to the Appellate Term of the Supreme Court. It now appears that in its notice of appeal the plaintiff inadvertently specified the Appellate Division instead of the Appellate Term. Plaintiff’s motion to vacate or modify this court’s order of December 20, 1961, is denied. Such denial, however, is without prejudice to an application 'by plaintiff in the City Court, pursuant to section 107 of the Civil Practice Act, to amend its said notice of appeal, or, if such motion has been made and denied, to an application for reargument in the City Court. Such court is fully empowered to direct the necessary amendment to be made (Kalish v. Belmont Motors, 280 App. Div. 824; Vesper v. Callahan, 276 App. Div. 784; Vose v. Conkling, 159 App. Div. 201; cf. Waldo v. Schmidt, 200 N. Y. 199, 203-204). Our prior order of dismissal was likewise intended to be without prejudice to such an application by plaintiff in the City Court pursuant to said section 107 of the Civil Practice Act. Ughetta, Acting P. J., Kleinfeld, Christ, Hill and Rabin, JJ., concur.