Van Horn v. New York Pie Baking Co.

Finelite, J. This is a motion to compel the plaintiff to accept and receive the undertaking and notice of appeal heretofore served upon him, and that the defendant be allowed to enter an amended judgment dismissing the counterclaim set forth- in its answer in accordance with the provisions of the order entered herein on February 11, 1908. It appears from the facts presented upon this motion that a trial was had on the 5th, 6th and 7th days of February, 1908, and on the 8th day of February, 1908, judgment was entered by the plaintiff, and on the same day a copy of said judgment, with notice of entry, was served on the defendant’s attorneys; that defendant’s attorneys admitted service of said judgment and notice of entry; the defendant by its answer had set up a counterclaim; the judgment did not adjudge the counterclaim dismissed; the jury rendered a verdict for the plaintiff; the court dismissed the defendant’s counterclaim; the order entered by the plaintiff’s attorney denying the defendant’s motion for a new trial, as served upon the defendant’s attorneys by the plaintiff’s attorney, did not in terms adjudge the counterclaim dismissed. Thereupon an order was entered and served on February 11, 1908, with notice of entry thereon, amending the judgment to the effect that the counterclaim be adjudged dismissed. The defendant’s time to appeal from this judgment as amended and from the order amending it began from the service of the order and expired ten days thereafter, to wit, the 21st day of February, 1908. Code Civ. Pro. § 3190. The defendant served his notice of appeal and filed his undertaking with the clerk of this court on the 24th day of February, 1908. The twenty-second was a legal holiday and the twenty-third was on Sunday. This notice of appeal and undertaking was returned to the defendant’s attorney with an indorsement thereon that the time to appeal had expired. The defendant contends that his time has not yet commenced to run, and that he is not in default for the reason that the plaintiff has not served him with a true copy of the order and proper notice of entry; that the paper served upon him did not conform with the original on file in that there were certain discrepancies as to certain recitals of dates of affi [378] davits, and that the notice of entry was so written on the copy of the papers served as not to be discoverable upon reasonable inspection of the papers. The indorsements upon said papers .were also misleading in that they failed to state that a notice of entry was contained therein. In the case of Weeks v. Coe, 36 App. Div. 339, the notice of entry was indorsed upon the cover exactly as in the case at bar, and it was there held to be insufficient. Judge Hatch (at p. 342) says: “ In the present case a person mig'ht unfold this paper, read the contents of the order, turn to the indorsement and read that, and yet be entirely unacquainted with the deadly menace to his rights that lay concealed within its folds. The reading of the order would not disclose the notice; turning it, to bring the indorsement upon the face of the cover into view, would usually result in closing the folds, while in reading the face of the cover, the usual place of indorsement, one would only be informed that it was a copy of the order, and thus a veritable deadfall be set upon the right to appeal.” The plaintiff could have obviated this technical objection and thus avoid an unnecessary motion to be compelled to receive the notice of appeal if he had the indorsement upon a reasonably conspicuous part of the paper, to wit, upon the back thereof. The defendant was also misled when he gave admission of service by signing the firm name of defendant’s attorneys under the words “ copy received,” as indorsed upon said paper was merely the word “ judgment.” As was said in the case of Livingston v. New York El. R. R. Co., 60 Hun, 473, by Judge Barrett, writing a concurring opinion-: “ That an acknowledgment of the receipt of a defective paper by the appellant’s attorneys and an expression of belief on their part that their time to appeal had commenced to run did not operate in any sense as a waiver, and did not alter the legal effect of the plaintiff’s failure to do what was requisite to set the time to appeal running.” When the judgment was amended by the order of February 11, 1908, it was the duty of the plaintiff’s attorney to re-serve the defendant’s attorneys with the amended judgment and notice of entry thereon. Brown v. Hardie, 5 Robt. 678; 28 N. Y. Super. Ct. 678. This was an order to [379] amend a judgment, but did not set the time to appeal running until an amended judgment and notice of entry had been served. See also Gasz v. Stride, 19 N. Y. St. Repr. 315, 318. The defendant’s practice in this case seems to be technical, but is justified under the circumstances, although there is sufficient in favor of the defendant to hold the plaintiff to the strict letter of the law in addition to the spirit thereof. The motion will therefore be granted. The terms and conditions of granting the defendant the relief prayed for as to costs will be settled in the order to be entered herein. Ordered accordingly.