Van Heusen & Charles v. Kirkpatrick
New York Supreme Court
Motion to dismiss an appeal. On the 8th of April 1850, the plaintiffs recovered, in the Albany Justices’ Court, a judgment against the defendant for $67-40. On the 27th of April, the defendant made his affidavit and served upon the justices and the plaintiffs copies thereof, with a notice of appeal. The fee prescribed by the 371st section of the Code, was not paid to the justice, at the time the notice of appeal was served.
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Motion to dismiss an appeal. On the 8th of April 1850, the plaintiffs recovered, in the Albany Justices’ Court, a judgment against the defendant for $67-40. On the 27th of April, the defendant made his affidavit and served upon the justices and the plaintiffs copies thereof, with a notice of appeal. The fee prescribed by the 371st section of the Code, was not paid to the justice, at the time the notice of appeal was served. Within the time allowed by law, a counter affidavit was made and served on behalf of the plaintiffs. The justices decline making a return for the reason that the fee…
1Opinion of the Court
Harris, Justice.
A justice is allowed a fee. of one dollar for making his return to an appeal. If this fee is not paid on the service of the notice of appeal, the justice is not bound to make *423a return, nor is it in the power of the appellate court to compel such return. The appeal can not be brought to a hearing until the return is made. What, then is to be done in such a case? How is the party against whom an appeal is taken, to put the appellant in motion? It can not be, that such an effect is to be given to the provisions of the Code as to allow a party to perfect his appeal by the service…
2Cited by2 opinions
- King v. NortonNew York Supreme Court · 1901
- Southard v. PhilipsNew York Supreme Court · 1876