Brown v. Heacock
New York Supreme Court
This is a motion made by the plaintiff to dismiss the defendant’s appeal from a judgment entered for the plaintiff on the 17th day of June, 1853, on the report of a referee. Notice of the judgment was served by the plaintiff’s attorneys by depositing the letter in the post-office at Elmira on the 17th day of June, 1853, directed to the defendant’s attorney at Buffalo, and paying the postage thereon.
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This is a motion made by the plaintiff to dismiss the defendant’s appeal from a judgment entered for the plaintiff on the 17th day of June, 1853, on the report of a referee. Notice of the judgment was served by the plaintiff’s attorneys by depositing the letter in the post-office at Elmira on the 17th day of June, 1853, directed to the defendant’s attorney at Buffalo, and paying the postage thereon. The letter was in fact postmarked at Elmira, June 18th, as appears by defendant’s affidavit. On the 8th day of July, 1853, the defendant’s attorney deposited in the post-office at Buffalo a copy…
1Opinion of the Court
By the Court—Shankland, Justice.
This motion can not be sustained. Whether a case or exceptions were made and served in time, or not, affects not the regularity of the appeal. The appellant may appeal from a judgment whether he makes a case or exceptions, or not. He may on such appeal reverse the judgment for causes appearing on the face of the record; *346as, for instance, that the complaint does not state facts sufficient to constitute a cause of action. (Code, § 148.)
The appeal, in this case, was regular, according to the pro visions of the Code, §§ 327, 332.
If the defendant has failed to make…
2Cited by1 opinion
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