M. C. French & Son v. Stanley Trusevitz ( 1967 )

— Order unanimously reversed, with costs, and case remitted to Steuben County Court for further proceedings in accordance' with Memorandum. Memorandum: In January, 1964, plaintiff obtained a money judgment against defendant in a Justice Court of the Town of Bath. Defendant appealed to Steuben County Court and demanded a new trial in that court. (Cf. Justice Ct. Act, § 442.) An undertaking to stay execution executed by individual third parties was filed but .the required affidavit of justification (CPLR 2502) was not attached thereto. Furthermore, the undertaking was not approved by the Justice of the Peace or the County Judge as mandated by section 434 of the Justice Court Act. Plaintiff’s motion for appropriate relief .to remedy these defects was denied. These deficiencies could have been readily remedied upon a showing by appellant that they were due to mistake, inadvertence or excusable neglect. (Justice Ct. Act, § 433; Harrison Bros. Co. v. Excelsior Bag & Mfg. Co., 180 App. Div. 790.) We remand the ease to give the appellant an opportunity to move within a reasonable time to remedy the defects. Upon proof of failure to do so County Court should make an order dismissing so much of the appeal as demanded a new trial and proceed to decide the. appeal upon the return before it (Justice Ct. Act, § 451). ' Respondent not having raised the question, it is not necessary to decide whether or not the order is appealable. (Cf. CPLR 5703, subd. [b].) (Appeal from order of Steuben County Court denying plaintiff’s motion to strike notice of appeal.) Present— Williams, P. J., Bastow, Henry, Del Vecchio and Marsh, JJ.