Strong v. Hardenburgh , 25 How. Pr. 438 ( 1862 )

By the court, Hogeboom, Justice.

1. I do not think the notice of appeal to the court of appeals was in the way of granting this motion. The appeal was ineffectual without an undertaking, and the judgment by default was not appealable. But even if the appeal had been regu- „ larly brought, it is well established practice, notwithstanding such appeal) ito permit, in a proper case, such proceedings as are now applied for, to be taken in the court from whose judgment the appeal is taken.

2, Nor do I think that the judge at special term should have declined to entertain the motion. It was a motion clearly proper, if not necessary, to be made at special term. It was non-enumerated business, and the application was not only to open the default at general term, but for further relief, to wit, to be permitted on terms to make a case and exceptions. (Rule 40 ; Ayres agt. Comil, 9 How., 573.) The party had therefore a right to apply at special term, and his motion should have been heard without turning him over to a tribunal whose jurisdiction, although I think it existed, was more questionable.

3. And I think the application on the merits should have been granted. It is true there had been great delay, but the circumstances were also peculiar. One of the counsel had died ; the attorney had gone to the war, and very naturally paid little attention to his professional business ; the new attorney was only recently appointed; was unaware of the precise state of the case, and was attending to his public duties in the state legislature. The referee was in the senate of the United States. The case was important in principle and in pecuniary results. Merits are sworn to, and errors alleged to have been committed by the referee, though they are not distinctly specified. The plaintiffs will not be injured, especially if sufficient security be given to stay the proceedings upon appeal. The defendants are alleged to be insolvent, and such an appeal will be a benefit rather than a prejudice to the plaintiffs, if they are right on the merits. In the meantime, if there be well founded apprehension of the defendants’ responsibility, the judgment may be permitted to stand as security. The power to enlarge the time to file exceptions and serve a case, exists, notwithstanding the prescribed period for so doing has elapsed. (Code, §§ 174, 405; Sheldon agt. Wood, 14 How., 18 ; Haase agt. N. Y. Cen. R. R., 14: How., 430 ; Crittenden agt. Adams, 5 How., 310; Toll agt. Thomas, 18 How., 324.)

4. I think, therefore, the order of the special term should be reversed, and the default taken at general term be set aside, and the defendants permitted to file exceptions and serve a case within thirty days after written notice of the order entered upon this decision, upon paying the costs of the default and subsequent proceedings up to and including the judgment and the costs of opposing the motion at special term. Such payment to be made within ten days after regular adjustment thereof, on notice. The judgment already entered to be permitted to stand as security. Neither party to have costs of appeal from the order at special term.