Rankin v. Pine
New York Court of Common Pleas
Motion to set aside an appeal. In this action, which was brought by James M. Rankin against George W. Pine, a trial was had before a referee, who reported that the plaintiff was entitled to recover of the defendant $81.13 besides his costs. This sum was less than was claimed by plaintiff. On July 19, 1856, the plaintiff entered judgment upon the report, for the sum named with costs.
Read the full summary
Motion to set aside an appeal. In this action, which was brought by James M. Rankin against George W. Pine, a trial was had before a referee, who reported that the plaintiff was entitled to recover of the defendant $81.13 besides his costs. This sum was less than was claimed by plaintiff. On July 19, 1856, the plaintiff entered judgment upon the report, for the sum named with costs. On November 26, 1856, the plaintiff’s attorney served a notice of appeal to the general term, together with a copy of the case as proposed on the part of the plaintiff. The copy of the proposed case contained the…
1Opinion of the Court
By the Court †—Birdseye, J.
—The appeal cannot be dismissed, by reason of the failure of the appellant to serve his case and exceptions, within the time prescribed by the Code (§ § 268, 272) and the Buies of the Supreme Court (Rules 15 and 16). Whether the case or exceptions-were made and served in time or not, does not affect the regularity of the appeal. On such an appeal, the judgment may be reversed for causes appearing on the face of the record, though there be no case or exceptions made. (See Brown v. Heacock, 9 How. Pr. R., 345‡)
The present appeal is one of those allowed by the fourth…
2Cases cited3 opinions
- Jenkins v. WildCourt for the Trial of Impeachments and Correction of Errors · 1835
- North American Coal Co. v. DyettNew York Court of Chancery · 1833
- Eldridge v. Howell & HowellNew York Court of Chancery · 1834
3Cited by5 opinions
- State ex rel. Keane v. MurphyNevada Supreme Court · 1885
- Levine v. Barrett & BarrettSupreme Court of Minnesota · 1901
- New Rochelle Gas & Fuel Co. v. Van BenschotenAppellate Division of the Supreme Court of the State of New York · 1900
- Smith v. Ingham UniversityNew York Supreme Court · 1894
- Sommers v. DitmarNew York Supreme Court · 1897