Thompson v. . Blanchard
New York Court of Appeals
Notice of the appeal was given to the respondent, who was plaintiff in the court below, on the 2d day of November last; and on the 5th day of that month notice of the appeal was served on the clerk, and the proper undertaking was filed.
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Notice of the appeal was given to the respondent, who was plaintiff in the court below, on the 2d day of November last; and on the 5th day of that month notice of the appeal was served on the clerk, and the proper undertaking was filed. On the 27th day of the same month the respondent entered an order, under the 2d rule of this court, dismissing the appeal for want of prosecution, on the ground that no return had been filed within the twenty days allowed for that purpose. moved to vacate the order dismissing the appeal on several grounds; and among others, he said the order was entered too…
1Opinion of the Court
Bronson, Ch. J.
In using the word “perfected,” the second rule of this court follows the code; and although there is room for doubt, we think an appeal is perfected within the meaning of the code, when the proper undertaking, with an affidavit of the sureties, has been executed, and notice of the appeal has been served on the adverse party and on the clerk with whom the judgment or order was entered. It is true that the appeal may still fail should there be an exception to the sufficiency of the sureties and they should not justify. (§ 341.) But when the party has executed the undertaking and…
2Cited by3 opinions
- Hill v. . BurkeNew York Court of Appeals · 1875
- Wade v. . De LeyerNew York Court of Appeals · 1875
- People ex rel. Kelly v. AitkenNew York Supreme Court · 1879