Wingert v. Krakauer

• Decision Date: 17 January 1905
• Citation: 180 N.Y. 265,73 N.E. 46
• Parties: WINGERT v. KRAKAUER et al.
• Court: New York Court of Appeals Court of Appeals

180 N.Y. 265

73 N.E. 46

WINGERT

v.KRAKAUER et al.

Court of Appeals of New York.

Jan. 17, 1905.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Edwin W. Wingert against David Krakauer and others, doing business under the name of Krakauer Bros. Judgment for defendants, and plaintiff appeals. Motion to compel acceptance of notice of appeal from an order of the Appellate Division (87 N. Y. Supp. 261,92 App. Div. 223) reversing a judgment for plaintiff. Motion granted.Lyttleton Fox, for the motion.

Charles C. Nadal, opposed.

HAIGHT, J.

Upon the trial of this action the plaintiff recovered a judgment against the defendants for the sum of $10,633.57. Upon appeal to the Appellate Division of the First Department the judgment was reversed, and a new trial ordered. That order was entered in the office of the clerk of the county of New York on the 24th day of March, 1904, and a notice of the entry thereof was, upon that day, served upon the plaintiff. Thereafter, and on the 31st day of October, 1904, a judgment of reversal was filed in the office of the clerk of the county, and notice of the entry thereof served upon the plaintiff. On the 7th day of November thereafter the plaintiff served upon the attorneys for the defendants a notice of appeal to the Court of Appeals from the order granting a new trial, containing a stipulation for judgment absolute should the decision of the Appellate Division be affirmed, together with a copy of an undertaking on appeal. These papers were forthwith returned to the plaintiff's attorneys by the attorneys for the defendants, with an indorsement thereon to the effect that they were not served in time.

We think the questions raised should now be determined upon the merits. The practice adopted by the plaintiff conforms to that in force in the Special Terms with reference to the service of pleadings and notices which have been returned, and manifestly it would be unjust to the parties, involving them in additional labor and expense, to reserve the determination of the question until the argument of the appeal. The question presented calls for a construction of section 1318 of the Code of Civil Procedure. It provides as follows: ‘Where a judgment, from which an appeal is taken, is reversed upon the appeal, and a new trial is granted, an appeal cannot be taken from the judgment of reversal; but upon an appeal from the order granting a new trial, taken, as prescribed by law, the judgment of reversal must also be reviewed.’ Under these provisions an appeal to the Court of Appeals must be from the order granting a new trial, but the judgment of reversal must be reviewed. A judgment of reversal cannot be reviewed until it has been entered, and consequently the appeal cannot be taken until after such entry. Vernon v. Palmer, 67 How. Prac. 18. Under section 1325 an appeal to the Court of Appeals from an order must be taken within 60 days after the service upon the appellant of a copy of the order and a notice of its entry. The appellant, therefore, is apparently left in an awkward position. More than 60 days had elapsed after the entry of the order before the entry of the judgment. If he complied with the provisions of section 1325, he had to take his appeal from the order within 60 days after its entry, while under the provisions of section 1318 his appeal would be ineffectual if taken before the judgment had been entered. Throop, one of the commissioners to revise the statutes, in his note to section 1318 of the Code, says that it is new; that an appeal to the Court of Appeals from an order granting a new trial necessarily involves an appeal from a judgment of reversal and that this leaves a door open to some confusion, especially in respect to the time within which the appeal must be taken. He then concludes that ‘as the...