Cleary v. New York State Railways , 191 N.Y.S. 71 ( 1921 )

Kruse, P. J.:

This is a reargument of the appeal from an order of the County Court which dismissed the appeal from an order of the City Court denying the defendant’s motion to set aside the verdict of the jury. Upon the disposition of the appeal after the first argument in this court, we held that an order denying the defendant’s motion to set aside the verdict of the jury and for a new trial is appealable under the provisions of the charter of the city of Rochester (Laws of 1907, chap. 755, § 512, subd. (c), as added by Laws of 1918, chap. 495; Id. § 524-a, as added by Laws of 1920, chap. 434^*), but that the question as to whether the motion to set aside the verdict was timely made in the City Court should be determined upon the appeal to the County Court and not by motion to dismiss the appeal to that court and, therefore, we reached the conclusion that the order of the County Court dismissing the appeal should be reversed. (198 App. Div. 228.) Upon the application for reargument both counsel have asked to have that question determined upon this appeal and defendant’s counsel concedes that if the motion to set aside the verdict was not timely made in the City Court, the order of the County Court dismissing the appeal may be affirmed.

Section 512, subdivision (c), of the charter of the city of Rochester (as added by Laws of 1918, chap. 495) provides that a motion to set aside a verdict of a jury or to modify a judgment rendered upon a trial by the court with or without a jury or for a new trial, must be made at the close of the trial or within fifteen days after the entry of the judgment. While it appears that notice of such a motion was served thirteen days after the judgment wás entered, the time fixed by the notice for making such motion was seventeen days after such entry of judgment. The defendant contends that' the motion was made when notice thereof was served. We think this contention cannot be sustained. It is very apparent that it was the intention of the Legislature to limit the time within which such motions should be made. If by simply serving a notice of such an application, the time limit is prevented from running, a party might serve his notice of motion and make it returnable at any time in the future and thus the purpose of the statute would become abortive. We think the motion was not timely made and, therefore, under the stipulation of the defendant, the order should be affirmed, with ten dollars costs.

All concur.

Motion for reargument granted, order of reversal entered October 19, 1921, vacated, and after hearing reargument, the order is affirmed, with ten dollars costs and disbursements.

* Since reiium. § 522 and amd. by Laws of 1921, chap. 525.— [Rep.