Niles v. Battershall
The Superior Court of New York City
Judgment having been entered in this action against the defendant, on the 18th August, 1863, he, on the 21st September, appealed therefrom to the general term, by the service of a notice of appeal on the plaintiff’s attorney and on the clerk of the court. The plaintiff’s attorney refused to receive the notice of appeal, on the ground that an undertaking had not also been filed and served.
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Judgment having been entered in this action against the defendant, on the 18th August, 1863, he, on the 21st September, appealed therefrom to the general term, by the service of a notice of appeal on the plaintiff’s attorney and on the clerk of the court. The plaintiff’s attorney refused to receive the notice of appeal, on the ground that an undertaking had not also been filed and served. On the 29th September an undertaking was filed and a copy served on the plaintiff’s attorney, which he returned, because too late. On the 30th September the notice of appeal and copy undertaking were again…
1Opinion of the Court
Monell, Justice.
The service of the notice of appeal on the 21st September (it having been conceded on the argument that it was in time) was sufficient to perfect the appeal. No undertaking is necessary in an appeal from a special to a general term of this court. The refusal, therefore, of the plaintiff to receive it was irregular. To stay proceedings on the judgment appealed from, the appellant must either obtain an order from the court for that purpose, or he must file and serve an undertaking as required on an appeal to the court of appeals (Code, § 348); and it seems such undertaking must…
2Cited by1 opinion
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