New England Mutual Life Insurance v. Kelly

Motion to direct payment of a certain refund denied in its entirety. Concur—Murphy, P. J., Sandler, Sullivan and Ross, JJ.

dissents in a memorandum, as follows: This matter is scarcely of great moment and unlikely to occur again, involving only $200, but, in law and equity, the defendant-appellant’s motion should be granted.

The issue is the filing fee demanded by the Clerk of our court and paid by counsel for defendant-appellant, under protest.

Enacted last year, as a revenue measure, CPLR 8022 provides the following: "Fee on civil appeal. The clerks of the appellate divisions of the supreme court and the clerk of the court of appeals are entitled, upon the filing of a record on a civil appeal or a statement in lieu of record on a civil appeal, as required by rule 5530 of this chapter, to a fee of two hundred dollars, payable in advance.”

The record for this appeal was filed on or about October 26th, prior to the effective date of the statute.

On or about December 14th, when counsel attempted to file *419the brief and appendix, the Clerk took the position that the filing of the appendix was within the meaning of the section when it referred to a "record on a civil appeal”.

There is no reference to an appendix in CPLR 5530. The appendix is referred to in CPLR 5528. The appendix is a shorthand form of the record, but in this case, the record itself was filed prior to the effective date of the statute, and, accordingly, the fee was not due.