Ex parte La Farge
New York Supreme Court
moved for a mandamus to the judges of the C. P. of Jefferson county, commanding them to vacate a rule quashing an appeal, by La Farge, from a judgment before a justice against him, at the suit of Fuller & Everts.
Read the full summary
moved for a mandamus to the judges of the C. P. of Jefferson county, commanding them to vacate a rule quashing an appeal, by La Farge, from a judgment before a justice against him, at the suit of Fuller & Everts. No costs were actually paid to the justice, on serving the notice of appeal ; but La Farge directed him, in writing, to charge the costs in account against him, which the justice did ; and made an affidavit, (which was read in the C. P. on the motion to quash the appeal for this cause,) that he accepted this direction for the costs. objected to the reading of the affidavit on which…
1Opinion of the Court
Curia.
This is not such an entitling of the affidavit, as comes within the rule relied on, that an affidavit entitled cannot be read. It is not entitled in any cause as pending in this court.
As to the merits of the motion, however, clearly there was no payment. The writing was a mere acknowledgment that La Farge owed the costs ; and a request that they should be charged to him. To entitle him to an appeal, the party must comply strictly with the terms of the statute. The money must be actually paid.
Motion denied.
2Cited by2 opinions
- Trigg v. LarsonSupreme Court of Minnesota · 1865
- Thomas v. ThomasNew York Supreme Court · 1879