Murray v. Hathaway
New York Supreme Court
Motion to dismiss appeal from final order in summary-proceedings ; ground of motion is no bond ; answer is sixty-days not yet elapsed; also, the defendant has been removed from possession and no stay desired.
1Opinion of the CourtPutnam, J.
We think the appeal should not be dismissed for the defendant’s failure to file an undertaking. Although an undertaking seems to be required by Code Civ. Pro., §§ 2260,1340,1341, yet, as the defendant has sixty days to perfect his appeal, which time has not expired, and, as he is not moving the case, his time to file the undertaking has not yet elapsed, and hence, the motion on that ground is premature. But § 1304 of the Civil Code provides that an appeal cannot be taken from an order made by a judge out of court, unless entered in the clerk’s office, and this- order, it appears, was not so…
2Cases cited6 opinions
- Good v. . DalandNew York Court of Appeals · 1890
- Nat. Park Bk. of N.Y. v. . WhitmoreNew York Court of Appeals · 1887
- Nichols v. . MacLeanNew York Court of Appeals · 1885
- King v. BarnesNew York Supreme Court · 1889
- Beadleston v. BeadlestonNew York Supreme Court · 1888
1 more not listed; retrieve them via the Exa API.