McNulty Bros. v. Anderson Construction Co.

Plaintiff-respondent moves to dismiss the instant appeal on the grounds that it is improperly taken and that the appellant has failed to prosecute it. Default judgment was taken in Justice’s Court, Town of Huntington on August 31,1960. Defendant served a notice of appeal on September 7,1960 pursuant to section 426 of the Justice Court Act. The respondent now argues that section 5511 of the Civil Practice Law and Rules which prohibits appeals from default judgments by the aggrieved party supersedes section 428 of the Justice Court Act. Section 101 of the Civil Practice Law and Rules states, however: ‘ ‘ The civil practice law and rules shall govern the procedure in civil judicial proceedings in all courts of the state and before all judges, except where the procedure is regulated by inconsistent statute.”

*670Such appeals are, therefore, governed by section 426 of the Justice Court Act.

The delay of over three years in noticing this appeal for argument is not excusable and the motion is granted.