Levine v. Proser

This is an appeal from two orders of the City Court. One of the orders appealed from declares the appeal from the judgment herein abandoned for the failure of the appellants to make and serve a case on appeal in compliance with an order requiring the appeal to be argued at the November term of this court.

The other order appealed from denied the motion of the appellants to vacate the order declaring the appeal abandoned.

The respondents move to dismiss the appeals upon the ground that these orders are not appealable to this court. In support of this latter contention the case, of Fromme v. Porschke, 95 N. Y. Supp. 525, is relied upon. That case is not authority for the proposition urged. It was there held that when an order declaring an appeal abandoned did not affect any substantial right and the undisputed facts showed that the appellant had been guilty of neglect, the order was not appealable because it was simply declaratory of a state of facts which concededly showed that the right of appeal had been forfeited.

In the present case a very different situation is presented. The appellants were not guilty of neglect. It was impossible for the appellants to argue the appeal at the November term because the case was not settled by the justice until six days after the time had expired within which it was possible to notice the case for argument at the November term. The right of appeal from the judgment could not be forfeited under these circumstances, and an order declaring the appeal abandoned was not merely declaratory of the fact that the right of apeal had been lost, but declared that, the right of appeal was lost although the appellants had been guilty of no act of neglect in preparing their appeal. Such an order impairs a substantial *136right and, when the party seeking relief had not been guilty of neglect in the prosecution of their appeal, is reviewable in this court.

It follows that the motion to dismiss the appeal is. denied, with ten dollars costs, and the orders appealed from are reversed, with ten dollars costs and disbursements, and the motion to open appellants’ default is granted and the appeal is directed to be brought on for argument at the January, 1914, term of this court.

Guy and Bijur, JJ., concur.

Orders reversed, with ten dollars costs and disbursements.