Citation Numbers: 158 N.Y.S. 620
Filed Date: 4/14/1916
Status: Precedential
Modified Date: 10/17/2022
Upon appeal by defendant an order was made at the March, 1915, term of this court reversing an order of the City Court, with $10 costs and disbursements to the appellant, and directing resettlement of the case on appeal herein in accordance with the opinion of this court.
It is undisputed that because of the nonpayment of the costs awarded by the Appellate Term all plaintiff’s proceedings were stayed. The stay, however, did not render any subsequent proceedings taken by the plaintiff void, but merely made them irregular (Wessels v. Boettcher, 142 N. Y. 212, 36 N. E. 883), and within the express terms of the Code provision the defendant at its election could waive the irregularity. The motion to resettle the case was a proceeding brought on by the defendant, not by the plaintiff. No objection to the service by plaintiff of the order entered on defendant’s motion resettling the case was made by defendant’s attorney; on the contrary, the order was not only received and retained on December 3, 1915, but on December 21st defendant moved to resettle that order, and on the denial of this last motion, and the entry of the order thereupon January 11, 1916, defendant’s attorney on January 18, 1916, appealed from the
It is apparent, therefore, even assuming that the service by plaintiff of the order entered on defendant’s motion was a progressive step taken by plaintiff in the action (see Allen v. Becket [Sup.] 84 N. Y. Supp. 1011), that the irregularity constituted by such service was waived by the subsequent proceedings of the defendant based upon the entry and service of that order upon its attorney (Allen v. Becket [Sup.] 85 N. Y. Supp. 192; Reeder v. Lockwood, 30 Misc. Rep. 531, 62 N. Y. Supp. 713). It follows that the motion to dismiss defendant’s appeal from the order of the City Court dated November 15, 1915, resettling the case on appeal herein, must be granted.
Motion to dismiss appeal from order of November 15, 1915, resettling case, granted, and appeal dismissed with $10 costs; motion to dismiss appeal from order denying motion to resettle order of November 15, 1915, denied.