Zinsser v. Seiler

It has been uniformly the practice of this court since the amendment of section 275 of the Code of 1848, by the adoption of section 327 of the Code of 1849, to allow a party who has in good faith given a notice of appeal, but has failed through mistake to perfect it by serving a notice, both upon the clerk and the respondent, to perfect the appeal by the service of the additional notice upon the one upon whom it should have been served, deeming that we had power to do so by the amendment made in. 1849. None of the cases referred to upon this motion, except, Morris v. Morange (17 Abb. Pr. 86), have held the contrary, although containing dicta creating doubt as to the power of the court to do so. In The People, ¿•c. v. Bldridge (7 How. Pr.. 108) the question was not before the court, as no application! had been made to the court below to cure the defect by a-service upon the party instead of upon the attorney. In: Sherman v. Wells (14 How. Pr. 522), the respondent was-required to accept notice of appeal, because,, the- judgment-having been entered before the costs were taxed',, it was held', that the thirty days did not begin to run until the- service o£ a notice of the judgment, after it had been- settled what, amount of costs were included in it. In Bryant v. Bryant (4 Abb. Pr. N. S. 138), no notice of appeal from, the ordersought to be re vis wed had been served, but by mistake the-notice referred to a different order ; and what was asked-was,, to allow the party to appeal after the time for appealing had1, expired. In Morris v. Morange (17 Abb.. Pr.-. 86), the appel*466lant served notice upon the clerk by mail, and his application to perfect his appeal by allowing him to- serve the notice regularly upon the clerk was denied. The decision was affirmed, although in reviewing it no notice is taken of the point whether the court below had the power or not to allow the appellant to perfect his appeal. The only point considered, as would seem from the opinion, was, whether a service by mail upon the clerk was sufficient. At the same time (December, 1863) that Morris v. Morange was decided, the question was brought before the general term of this court in Williams v. The Tradesmen Ins. Co. (1 Daly, 322). There, the service of the notice was upon the attorney, instead of the respondent. The appellant had been allowed by the court below to perfect his appeal, and the order so providing was, after full consideration of the point, affirmed upon appeal.

The application for leave to go to the Court of Appeals should be denied.

Larremore, J., concurred.

Ordered accordingly.