Williams v. Tradesmen's Fire Insurance
New York Court of Common Pleas
Appeal by plaintiff from an order made at Special Term on a motion made by the plaintiff to dismiss an appeal taken from the General Term of the Marine Court. The General Term of the Marine Court had granted the plaintiff a new trial, and the cause had been set down for trial for a particular day. After this, and before the trial, the defendant served upon the plaintiff"s attorney a notice of appeal, with a copy of an undertaking.
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Appeal by plaintiff from an order made at Special Term on a motion made by the plaintiff to dismiss an appeal taken from the General Term of the Marine Court. The General Term of the Marine Court had granted the plaintiff a new trial, and the cause had been set down for trial for a particular day. After this, and before the trial, the defendant served upon the plaintiff"s attorney a notice of appeal, with a copy of an undertaking. The undertaking was not executed by the defendant. The plaintiff moved at Special Term of this Court to dismiss the appeal on the ground that there had been no…
1Opinion of the Court
By the Court.
Brady, J.
The order made at Special Term in this case must be affirmed. There is no doubt of the power of this Court to permit an amendment by which an appeal may be perfected where a notice of appeal has been served. In this case the notice was served, although it was not served on the respondent. Section 327 does not provide in terms that the service musí be on the party to entitle the *325appellant to relief, and whether the omission to do that, where the notice has been served upon the Clerk of the Court, and the respondent’s attorney, should prevent us from granting the .relief…
2Cited by2 opinions
- Hoffenberth v. MullerNew York Court of Common Pleas · 1871
- Zinsser v. SeilerNew York Court of Common Pleas · 1878