Elias v. Babcock ( 1872 )

Daly, Ch. J.

The defendant has treated this as a ease in which it was necessary to notify the plaintiff that judgment had been recovered against him, which he did by serving upon the plaintiff a written notice of the fact and of the time of the recovery of the judgment, and the plaintiff served his notice of appeal within twenty days after the service of this written notice (see Code of Procedure, §§ 332, 352). The defendant will be held concluded by his own act, and will not now be allowed to go behind it and object that the notice of appeal should have been served within twenty days after the entry of the judgment. To hold otherwise, would be to allow him to take advantage of an act by which, though he may not have so intended, he evidently misled the plaintiff as to the time from which the twenty days were to run.