Necker v. Nardi , 99 N.Y.S. 381 ( 1906 )

Per Curiam.

Hpon this case being reached for argument at the May term of this court, the plaintiffs attorney moved for a dismissal of the appeal upon the ground that the notice of appeal was not subscribed by either the appellant or by his attorney as prescribed by section 311 of the Municipal Court Act. The case was argued, subject to the final disposition of this motion by the court. Hpon examination of the return, it was ascertained that, so far as appeared by the notice of appeal attached thereto, the motion was well founded and the case was returned to the files of the court. This disposition of the matter was correct for the reason that, so far as appeared by the return then before the court, no proper notice of appeal had been served,. and apparently no appeal was pending. The appellant now makes this motion and among other things asks “why leave should not be granted the appellant to supply the omission caused by failing to sign the notice of appeal herein on the face thereof by signing the same or having it signed by his attorneys.” The appellate court can only grant relief to the appellant under section 313 of the Municipal Court Act: “ "Where the appellant, seasonably and in good faith, serves the notice of appeal, upon either 'the clerk or the respondent, but omits, through mistake, inadvertence or excusable neglect, to serve it upon the other, or to do any act necessary to perfect the appeal;” but the court has no power to enlarge the time for bringing an appeal or to allow an appeal after the time for appealing has expired. Enos v. Thomas, 5 How. Pr. 561; Sherman v. Wells, 14 How. Pr. 522. It is not disputed that the so-called notices of appeal were served, one upon the clerk and one npon the attorney who, it seems, was the attorney who appeared for the respondent in the lower court. Heather of such notices was subscribed, either by the; appellant or his attorney in the appellate court, as required by section 311 of the Municipal Court Act. That section prescribes that “An appeal is taken by serving upon the clerk '* * * and upon the respondent, a written notice of appeal, subscribed either by the appellant or by his attorney in the appellate court." In this case no notice whatever was ever served upon the respondent and, as before stated, neither of the notices served was “ subscribed.” That the Legislature intended to require a subscription to such notice of appeal is clear, as prior to 1882 the section merely required service of a “written notice of appeal” and no actual subscription was required. Gutbrecht v. Prospect Park & C. I. R. Co., 28 Hun, 497. In that year the section was amended and the notice of appeal to be valid 'and effectual must be “ subscribed,” etc. The appellautj therefore, does not bring himself within section 313, as he has not served a notice of appeal upon the respondent at all; nor does it appear that the person upon whom service was made for the respondent was in any way authorized to act for him, even if the notice had been properly subscribed, and ■ the notice served upon the clerk was clearly ineffectual to give the appellate court jurisdiction to enable it to relieve the appellant.

Motion denied and appeal dismissed, with ten dollars costs.

Present: Gildebsleeve, Levehtbitt, and McCall, JJ.