William Wilson, Respondent, v. Justus Palmer, Impleaded, etc., Appellant.
Judgment of affirmance on decision of General Term was perfected herein August 3, 1877, a copy thereof with notice of entry -was served August 7th. On application for retaxation of costs an order was granted August 30th striking out one item tif §1.25 ; it did not appear that the judgment was ever actually modified. An undertaking on appeal was filed and served August 30th, 1878; both the undertaking and notice described the judgment as entered. On motion to dismiss appeal, held, that as it was not perfected within one year from August 3, 1877, it was too late.
(Argued November 19, 1878;
decided November 26, 1878.)
Motion to dismiss appeal on the ground, among others, that the appeal was not taken and perfected in time.
The facts appear in the opinion.
Theo. F. Jackson, for motion.
The appeal from the judgment of the General Term was not perfected within the time required by law. (Code of Civil Procedure, § 1325; Code of Procedure, § 334; Kelsey v. Campbell, 14 Abb., 368.)
Justus Palmer, opposed.
The appeal was perfected in time. (Old Code, § 331; New Code, § 1325; Champion v. Plymouth Cong’l Soc., 42 Barb., 441; Sherman v. Wells, 14 How., 522.) It was not necessary that a copy of the undertaking should be served with the notice of appeal. (Ryan v. Waull, 63 N. Y., 57; Code of Civil Procedure, §§ 1326, 1327, 1334.) The appeal from the judgment brought up for review the right of plaintiff to costs. (Hoe v. Sanborn, 3 Abb. [N. S.], 189; Code of Civil Procedure, §§ 1301, 1316.)
Per Curiam.
The only judgment entered in this action after the decision of the General Term was entered August 3, 1877, and notice thereof was given on the same day. That was a judgment of affirmance and for $96.99 costs. The *251notice of appeal and the undertaking describe that judgment, and no other. Ho other judgment was ever entered, and it does not appear that that judgment was ever canceled, or actually modified. It is true that the taxation of costs was corrected, by order of August 30, 1877, granted on motion for re-taxation by striking out the small sum of $1.25. The undertaking oil appeal was not filed or served until August 30, 1878. As the appeal was confessedly not perfected within one year from August third, it was too late. Ho other notice to limit the time of the appeal was needful. There is but one appeal, and that is from the judgment entered August third, and that must be dismissed, with costs.
All concur.
Appeal dismissed.