Levine v. Proser 144 N.Y.S. 746, 83 Misc. Rep. 134

144 N.Y.S. 746 • 83 Misc. Rep. 134

(83 Misc. Rep. 134.)

LEVINE et al. v. PROSER et al.

(Supreme Court, Appellate Term, First Department.

December 15, 1913.)

Appeal and Error (§ 91*)—Decisions Reviewable—Ordeb Declaring Appeal Abandoned.

Where it was impossible for appellants to argue the appeal at the November term, in compliance with the order of the court, because the case was not settled by the justice until six days after the time within which it was possible to notice the case for argument at that term, and appellants were guilty of no neglect therein, an order declaring the appeal abandoned for failure to make and serve a case on appeal was a declaration of the fact that the right of appeal had been lost, though appellants had been guilty of no neglect, so as to impair a substantial right, and heneé was reviewable.

[Ed. Note.—For other cases, see Appeal and Error, Gent. Dig. §§ 612-614; Dee. Dig. § 91.*]

Appeal from City Court of New York, Special Term.

Action by Harris Levine and another against Herman Proser and others. From an order denying a motion to vacate an order, previously made, declaring defendants’ appeal from a judgment in the above-entitled action abandoned, and also from such order declaring defendants’ appeal abandoned, defendants appeal. Motion to dismiss denied, orders reversed, and motion to open defendants’ default granted.

Argued December term, 1913, before SEABURY, GUY, and BIJURj-JJ.

Spiro & Wasservogel, of New York City (Abraham I. Spiro, of New York City, of counsel), for appellants.

Harold M. Phillips, of New York City, for respondents.

SEABURY, J.

This is an appeal from two orders of the City Court. One of the orders appealed from declares the appeal from the judgment herein abandoned for the failure of the appellants to make and serve a case on appeal in compliance with an order requiring the appeal to be argued at the November term of this court. The other order appealed from denied the motion of the appellants to vacate the order declaring the appeal abandoned.

The respondents move to dismiss the appeals, upon the ground that these orders are not appealable to this court. In support of this latter contention the case of Fromme v. Poerschke (Sup.) 95 N. Y. Supp. 525, is relied upon. That case is not authority for the proposition urged. It was there held that when an order declaring an appeal abandoned did not affect any substantial right, and the undisputed facts showed that the appellant had been guilty of neglect, the order was not appealable, because it was simply declaratory of a state of facts which concededly showed that the right of appeal had been forfeited. In the present case a very diiferent situation is presented. The appellants were riot guilty of neglect. It was impossible for the appellants to argue the appeal at the November term, because the case was not settled by the justice until six days after the time had expired within *747which it was possible to notice the case for argument at the November term. The right of appeal from the judgment could not be forfeited under these circumstances, and an order declaring the appeal abandoned was not merely declaratory of the fact that the right of' appeal had been lost, but declared that the right of appeal was lost, although the appellants had been guilty of no act of neglect in preparing their appeal. Such an order impairs a substantial right, and, when the party seeking relief had not been guilty of neglect in the prosecution of their appeal, is reviewable in this court.

It follows that the motion to dismiss the appeal is denied, with $10 costs, and the orders appealed from are reversed, with $10 costs and, disbursements, and the motion to open appellants’ default is granted, and the appeal is directed to be brought on for argument at the January, 1914, term of this court. All concur.

Levine v. Proser
144 N.Y.S. 746 • 83 Misc. Rep. 134

Case Details

Name
Levine v. Proser
Decision Date
Dec 15, 1913
Citations

144 N.Y.S. 746

83 Misc. Rep. 134

Jurisdiction
New York
Court
New York Supreme Court, Appellate Term

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