Wheeler v. McCabe

Bobinson, J.

This is an appeal from a judgment recovered in the Marine Court against the defendant, upon an undertaking given on an appeal from a judgment (rendered by a single judge against the defendant McCabe) to the general term.

As required by the act of 1853 (L. 1853, c. 617), that appeal was taken in the same manner and with like effect as appeals to the general term of the Supreme Court from a single judge, and upon like security as required by sections 334 and 335 of the code (Robert v. Donnell, 31 N. Y. 446). As in that case it was intended to stay proceedings on execution, the undertaking was, among other things, “ to the effect that if the judgment appealed from, or any part thereof, he affirmed, or the appeal be dismissed, the appellant will pay the amoimi directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part,” &c.

The appeal so taken was dismissed, with costs, for failure to serve the printed case and exceptions required by the 50th rule of the Supreme Court. This dismissal was ordered on the 28th of October, 1S72, unless the appellant, within fifteen days from service of a copy of such order, should serve copies of the printed case and exceptions, in which case the argument was to be put over to the November general term. At that term it was ordered and adjudged that the appellant had not complied with the permission afforded him, and leave to argue the appeal was denied him.

There can be no question but that this was an effectual dismissal of the appeal within the terms of the undertaking (Oeters v. Groupe, 15 Abb. Pr. 263)’. While such dismissal of an appeal for defects or laches in the appellant’s proceeding does not operate as a bar to another appeal if the time limited therefor has not elapsed, it is a mode of procedure well known in our system of practice, and operates as a final disposition of the action taken and rights of the appellant on such appeal (Sun Mut. Ins. Co. v. Dwight, 1 Hilt. 50; Bates v. Voorhees, 20 N. Y. 525; Genter v. Fields, 1 Keyes, 483; Maltby v. Greene, 1 Keyes, 548; Harper v. Hall, 1 Daly, 498). Such dismissal occurred within the terms of the undertaking by operative orders of the general term of the Marine Court.

A further objection to this recovery is raised for want of the ten days’ notice before suit brought upon such an undertaking, required by section 348 of the code, of “ the entry of the order or judgment affirming the judgment appealed from.” Such provision does not operate in this case, as the judgment was not affirmed, but the appeal was simply dismissed. The right of futura appeal still existed until thirty days after notice of the judgment or order to the adverse party had elapsed (Code, § 331; Fry v. Bennett, 16 How. Pr. 402; affi’d in Ct. of Appeals, 26 How. 599), Such rights growing out of affirmance of the judgment and dismissal of the appeal being so essentially different, no such notice was required in the present case before suit brought.

The judgment should be affirmed.

Larremore and Van Brunt, JJ., concurred.

Judgment affirmed.