RICHARD V. HARNETT v. ROBERT E. WESTCOTT, as President, etc.
Notice entry judgment.—Time to appeal.—Appeal from order denying motion for new trial—Stay of proceedings under judgment, when proper on appeal from order denying motion for new trial.
The notice of entry of judgment or order may be indorsed upon the copy judgment or order served therewith, and if the papers so served taken as a whole, contain an indorsement showing the name and address of the attorney of the prevailing party as prescribed by rule 2 of the General Rules, it is sufficient, because the rule does not require that these matters shall be stated more than once upon the same paper or set of papers.
Where the notice of appeal is served in due time as to the appeal from the order denying motion for new trial, but is not good as to appeal from judgment, and said notice and the undertaking served therewith for the purpose of effectuating a stay, are returned with a notice claiming that they were not served in time for any purpose, and the respondent threatens to enforce the judgment, appellant has a right to apply for a stay, and a case is made out for the discretion of the court; and a proper exercise of this discretion in granting a stay will not be interfered with by the appellate court, though it at the same time, dismisses the appeal from the judgment.
Before Sedgwick, Ch. J., Freedman and Truax, JJ.,
Decided June 20, 1888.
This case comes before the court (1) on a motion made by the plaintiff to dismiss defendant’s appeal from the judgment, on the ground that at the time of the service of the notice of appeal the defendant’s time to appeal from the judgment had expired, and (-2) on plaintiff’s appeal from an order staying all proceedings to enforce the judgment until after the determination o.f defendant’s appeal which was from the judgment, and an order denying defendant’s motion for a new trial.
The plaintiff’s right to have defendant’s appeal from the judgment dismissed on the ground that it was not *130taken in time, depends upon the sufficiency of the notice of entry of judgment which was served.
Section 1351 of the Code of Civil Procedure prescribes that an appeal to the general term must be taken within thirty days after service, upon the attorney for the appellant, of a copy of the judgment or order appealed from, and a written notice of the entry thereof.
The issues having been tried at a jury term and a verdict having been rendered for the plaintiff, the appropriate judgment thereon was entered March 24, 1888, and on the same day a copy of such judgment was duly served on defendant’s attorney personally. The copy judgment so served filled one side of a sheet of white paper, and securely attached to the back of such sheet was another sheet of colored paper of the same size. The outside of the colored sheet contained at the top thereof the following notice, viz.: u Take notice, that the within is a copy of a judgment this day duly made in this action and entered in the office of the clerk of this court. New York, March 24, 1888. Yours, &c., Ira D. Warren, Plaintiff’s Attorney.
“ To E. Luther Hamilton, Esq., Defendant’s Attorney.” And as folded up and served with the copy of the j udgment, the colored sheet further contained on its outside and in a plain and conspicuous manner the following indorsement, viz.: New York Superior Court.—Richard Y. Harnett against Robert E. Westcott, as President of Westcott’s Express Company.—Copy Judgment and Notice of Entry.—Ira D. Warren, Attorney for plaintiff, No. 170 Broadway, N. Y. City, N. Y.” Under precisely the same indorsement contained on a duplicate copy, the defendant’s attorney gave the following admission, viz. : “ Due and timely service of a copy of the within Judgment is hereby admitted. Dated New York, Mch. 24, 1888. E. Luther Hamilton, Attorney for Deft.”
Ira D. Warren, for plaintiff.
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E. Luther Hamilton, attorney, and Austin G. Fox of counsel, for appellant:—
I. The appeal from the order denying the motion for a new trial brings up all the questions that arise on the appeal from the judgment, besides the further questions whether the verdict is against the wreight of evidence, and whether errors were committed, even though no exception was taken. The remedy by motion for new trial is separate and independent from the remedy by appeal from the judgment. Ehrman v. Rothschild, 23 Hun, 273; Bostwick v. Barlow, 14 Ib. 177; Baylies New Trial & Appls. 46, 49 ; Alfaro v. Davidson, 39 Super. Ct. 463; Luddington v. Miller, 36 Ib. 1; Courtney v. Baker, 60 N. Y. 17; Pharis v. Gere, 107 Ib. 231; Thurber v. H. B. M. & F. R. R. Co., 60 Ib. 326 ; Schmidt v. Cohn, 12 Daly, 134; Walden v. Murdock, 23 Cal. 540; Martin v. Matfield, 49 Ib. 42; Derlette v. De Graaf, 51 Super. Ct. 369.
II. The notice of entry of judgment did not contain the office and post-office address of the defendant’s attorney, and was therefore ineffectual to limit the defendant’s time to appeal. Kelly v. Sheehan, 76 N. Y. 325; Kilmar v. Hathorn, 78 Ib. 228; Forstman v. Shulting, 107 Ib. 644, § 1351 Co. Proc. The only admission given was of “ due and timely service of a copy of the within judgment.” There was no admission. of service of a copy of notice of entry of judgment, nor was such admission asked for.
HI. The court, on appeal from an order, denying a motion for a new trial, has the power to grant a stay of execution, even when there is no intention to appeal from the judgment. §§ 1351, 775 Co. Proc., Hooper v. Beecher.
By the Court.—Freedman, J. (after stating the facts as above)
Upon these facts it is clear that, if the notice of entry of judgment so served with a copy of the judgment was a sufficient notice, the defendant’s time *132to appeal from the judgment expired April 23, and the service of the notice of appeal on May 4, was too late so far as the judgment is concerned.
The defendant insists, however, that the notice of entry of judgment was insufficient because it did not contain the office and posboffice address of plaintiff’s attorney, as required by rule 2 of the rules • of the Courts, and upon this point he cites Kelly v. Sheehan, 76 N. Y. 325; Kilmer v. Hathorn, 78 Ib. 228 ; and Forstman v. Shutting, 107 Ib. 644.
An examination of these cases shows that in every one of them the papers served, taken as a whole, nowhere contained the address of the attorney for the prevailing party.
On the other hand it has been distinctly held in Falker v. The N. Y., West Shore & Buffalo Railway Co., 100 N. Y. 86, and in The People &c. v. Keator, 101 Ib. 610, that the notice of entry of the judgment or order may be indorsed upon the copy judgment or order served therewith, and that if the papers so served, taken as a whole, contain an indorsement showing the name and address of the attorney of the prevailing party as prescribed by the rule, it is sufficient, because the rule does not require that these matters should be stated more than once upon the same paper or set of papers. Under these decisions the notice of entry of judgment which was served in the case at bar, was sufficient, and consequently the service by defendant on May 4 of a notice of appeal from the judgment was too late. The motion to dismiss the appeal from the judgment must therefore be granted.
This, however, does not necessarily call for a reversal of the order granting the stay. . The order denying defendant’s motion for a new trial was entered April 9, 1888, and the notice of appeal, although ineffectual as to the judgment, was good as to the order. The notice of appeal and the copy undertaking served therewith for the purpose of effectuating a stay, having been returned *133with a notice which claimed in effect that they had not been served in time for any purpose, and the plaintiff having threatened to enforce the judgment, the defendant had a right to apply by motion for a stay. A case was thus made out for the exercise of the discretion of the learned judge below, and upon all the facts disclosed it cannot be maintained that such discretion was improperly exercised.
For the foregoing reasons I am of the opinion that plaintiff’s motion to dismiss defendant’s appeal should be granted in so far as said appeal relates to the judgment ; that the order granting a stay should be affirmed, but its operation limited to the appeal from the order denying motion for new trial; and that neither party should have costs against the other.
Sedgwick, Ch. J., and Truax, J., concurred.