Morgan v. Zimmer
Appellate Division of the Supreme Court of the State of New York
Appeal, by the defendant, Martin Zimmer, from aii order of the County Court of Broome county, entered in the office of the clerk of the county of Broome on the 28th day of February, 1907, dismissing the appeal of the defendant from á judgment of a Justice’s Court. The appeal which was dismissed demanded a new trial in the County Court. Tile defendant on taking his appeal paid the justice his feesj required bylaw, and filed an Undertaking to perfect the appeal.
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Appeal, by the defendant, Martin Zimmer, from aii order of the County Court of Broome county, entered in the office of the clerk of the county of Broome on the 28th day of February, 1907, dismissing the appeal of the defendant from á judgment of a Justice’s Court. The appeal which was dismissed demanded a new trial in the County Court. Tile defendant on taking his appeal paid the justice his feesj required bylaw, and filed an Undertaking to perfect the appeal. The plaintiff served notice of exception to the sureties on" such undertaking, and the defendant paid no attention to such notice.…
1Opinion of the Court
Chester, J.:
The defendant had done everything that the law required of him to perfect his appeal to the County Court from the judgment of the Justice’s Court, and the justice had failed to make and file his return within the time required by law. 'Nothing appears to show that the defendant was at fault in not compelling a.return to be filed in time to get the case on that calendar. An action is deemed • an action at issue in the appellate court after the expiration of ten days from the day of filing the justice’s return (Code Civ. Proc. § 3071), and it is only after the action is at issue…
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