Evans v. . Backer
New York Court of Appeals
Appeal from order of the General Term of the Supreme Court, in the fifth judicial department, made April 14, 1883, which reversed a judgment in favor of defendants, entered upon a decision of the court on trial without a jury, and which granted a new trial. This action was upon an undertaking given on appeal.
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Appeal from order of the General Term of the Supreme Court, in the fifth judicial department, made April 14, 1883, which reversed a judgment in favor of defendants, entered upon a decision of the court on trial without a jury, and which granted a new trial. This action was upon an undertaking given on appeal. The defense was that no written notice of the entry of the order, or judgment affirming the judgment appealed from, was served upon the appellants’ attorney ten days before the commencement of this action as required by section 1309 of the Code of Civil Procedure. It appeared that…
1Opinion of the Court
Huger, Ch. J.
The omission to indorse upon papers served or filed, the post-office address or place of business, of the attorney serving them, as required by No. 2 of the Supreme Court Hules, is a mere irregularity and does not necessarily vitiate either the paper or its service. (Clapp v. Graves, 26 N. Y. 418.) Such omission entitles the party served, either to return the paper or move to set it aside, but he cannot, after receiving it without objection, safely disregard the office, which the paper is designed to fill. In Kelly v. Sheehan (76 N. Y. 325), this court held that an omission to…
2Cases cited5 opinions
- Kelly v. . SheehanNew York Court of Appeals · 1879
- Clapp v. . GravesNew York Court of Appeals · 1863
- Kilmer v. . HathornNew York Court of Appeals · 1879
- Martine v. . LowensteinNew York Court of Appeals · 1877
- Rae v. . BeachNew York Court of Appeals · 1879
3Cited by13 opinions
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- McKenzie v. Bismarck Water Co.North Dakota Supreme Court · 1897
- Pasco Terminals, Inc. v. United StatesUnited States Customs Court · 1979
- Wiener v. H. Graff & Co.California Court of Appeal · 1908
- Cheek v. BellNevada Supreme Court · 1964
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