Adsign Corp. v. Pioneer Brake Service Co. , 232 N.Y.S. 496 ( 1929 )

Per Curiam.

Prior to the 1928 amendment of section 157 of the Municipal Court Code an appeal from that court was taken by filing with the clerk of the court in the district where the judgment, order or final order was entered, within twenty days after the entry of the judgment or order or final order, a written notice of appeal subscribed by the appellant or by his attorney, By chapter 459 of the Laws of 1928, section 157 was amended by requiring the appellant to file with the clerk “ a written notice of appeal, subscribed by the appellant or by his attorney, together with proof of service upon the attorney for the respondent if the respondent appeared by an attorney; and, if the respondent has not appeared by an attorney, the clerk shall give notice thereof to the respondent in the manner prescribed by the rules.”

The attorney for the respondents moves to dismiss the appeal on the ground that a copy of the notice of appeal was not served upon him and that plaintiff did not file proof of service of the notice as required by the amendment. Appellant’s attorney states that he did not know of the change in the statute and that in accordance with the prevailing practice he had duly filed the notice of appeal with the clerk of the court below.

Defects or omissions in proceedings necessary to perfect an appeal from the Municipal Court may be supplied, or amendment of such proceedings may be granted, by the appellate court, in like manner as though the appeal were taken from a judgment or order of the Supreme Court. (Mun. Ct. Code, § 158.) While section 562 of the Civil Practice Act provides that “ an appeal must be taken by serving upon the attorney for the adverse party, and upon the clerk with whom the judgment or order appealed from is entered, by filing it in his office, a written notice to the effect that the appellant appeals from the judgment or order or from a specified part thereof,” under section 107 “ where an appellant, seasonably and in good faith, serves a notice of appeal, either upon the clerk or upon the adverse party, or his attorney, but omits, through mistake, inadvertence or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal,” the appellate court, upon proof by affidavit of the fact, may permit, in its discretion, the omission to be supplied upon such terms as justice requires.

As the neglect of the appellant’s attorney to serve the notice of appeal upon the respondents’ attorney and file the same with proof of service with the clerk, appears excusable and is thus within the purview of section 158 of the Municipal Court Code and section 107 of the Civil Practice Act, appellant is permitted, on payment of ten dollars costs, to serve a copy of the notice of appeal upon the respondents’ attorney and file proof of servicé with the clerk of the court below within three days after the entry of this order. Upon failure to avail of permission or comply with condition, motion granted, with ten dollars costs.

All concur; present, Bijur, Peters and Frankenthaler, JJ.