Brown v. Gladstone

Barnes, J. This action was tried in Justice’s Court resulting in a verdict for the defendants. It involves a sum greater than $100. The plaintiff served the notice of appeal asking for a new trial, but neglected to file a bond or undertaking. Nothing was done with the appeal, and after a lapse of over a year the defendant attempted to perfect his appeal by filing the bond. Acceptance of the bond was refused on account of the lapse of time, and this motion is made for an order permitting the plaintiff to perfect the appeal for a new trial by filing a bond. As the matter now stands, the appeal is good as an appeal, without a new trial. The granting of the order permitting the plaintiff to file a bond and perfect the appeal with a new trial is discretionary with this court. (Harrison Bros. Co., Inc., v. Excelsior Bag & Mfg. Co., 180 App. Div. 790.) No showing is made by the [442] defendants that they had been injured by the delay. The attorney for the plaintiff assumes the responsibility for the failure to file the undertaking timely. The plaintiff may perfect his appeal by filing a good and sufficient undertaking in compliance with the statute within twenty days and by the payment of ten dollars costs of this motion. Also, if the defendants request, the plaintiff shall proceed to trial of the action at the next Trial Term of this court and, on failure to do so, the action shall be dismissed, with costs. Proceed accordingly.