Benjamin v. Brownstein

¶1There are two motions made in this action—one by the plaintiffs for an order dismissing the appeal taken by defendants from a judgment in favor of the plaintiffs upon the ground that the notice of appeal was not served in time, and one by defendants for an order compelling the plaintiffs’ attorneys to accept the notice ofi appeal.

¶2[1] The motion to dismiss the appeal must be denied. The_ copy of the judgment served upon the defendants was so defective in several material respects as to be ineffectual to limit by its service the defendants’ time in which to appeal, and the decision of the lower court in that respect was correct.

¶3[2] The motion of the defendants to compel the acceptance of the notice of, appeal by the plaintiffs’ attorney must be granted. It is true the City Court made an order to that effect, but it was expressly held in Gersman v. Levy, 57 Misc. Rep. 156, 108 N. Y. Supp. 1107-1113, that the Special Term of the City Court was without jurisdiction to make such an order (citing Ziadi v. Int. St. R’y, 97 App. Div. 137, 89 N. Y. Supp. 606), and the decision in Gersman v. Levy was approved upon appeal by the Appellate Division (Gersman v. .Levy, 126 App. Div. *19283, 110 N. Y. Supp. 236). In the case of Phillips v. Hogan, 142 App. Div. 205, 126 N. Y. Supp. 1088, the Appellate Division, Third Department,, in discussing the power of the County Court of Albany County to dismiss an appeal taken from the City Court of Albany, said:

“If the appeal is not perfected, it is not in the County Court for argument. Nevertheless it is in form in the County Court until dismissed, and the County Court alone has power in the first instance to determine whether it is properly there as incidental to its power to review by appeal.”

¶4The holding of this court in Musica v. Di Marco, 74 Misc. Rep. 387, 132 N. Y. Supp. 281, is not opposed to the foregoing decisions. In the Música Case the City Court made an order dismissing the appeal. This court held it had no authority so to do; that, once an appeal was taken, it was not pending in the City Court, but that the City Court had jurisdiction in all matters pertaining to the settlement of the case. No one disputes the right of this court to dismiss an appeal, once it has been declared abandoned by the City Court, and the power to dismiss an appeal for any proper reason is unquestionably vested in this court, except that it cannot dismiss for failure to file the return upon appeal until after the case is settled. Rule 3 of the Appellate Term Rules.

¶5Plaintiffs’ motion to dismiss the appeal denied. Defendants’ motion to direct the plaintiffs’ attorneys to accept notice of appeal granted. Notice to be reserved within five days after the entry of this order. Order filed.