
    (96 Misc. Rep. 182)
    EATON v. POTTS.
    (Cortland County Court.
    June 14, 1915.)
    Justices or the Peace ©=>159(10)—Appeal—Perfection Nunc Pro Tunc—■ Statute.
    Code Civ. Proc. § 3049, permits omission in perfecting appeal from Justice Court to be supplied. Defendant appealed from a judgment in a Justice Court, seasonably paid costs, and duly served notice, but inadvertently failed to file Ills undertaking. Plaintiff appeared by regular notice of appearance served by lids attorney, who also served a notice of trial. Defendant moved, on affidavits and the papers and proceedings, for leave to serve and file his undertaking nunc pro tune. Plaintiff, opposing the application, filed no opposing affidavits, and did not controvert facts relied on, or raise question of insufficiency of statements, or question good faith of application. Held, it would be granted on defendant paying the motion costs.
    LEd. Note.—For other cases, see Justices of the Peace, Cent. Dig. §§ 557-501, 570-572; Dec. Dig. ©=>159(10).]
    ©=>For other eases see same topic & KEY-NUMBER in all Key-Numbered Digests Sc Indexes
    Appeal from Justice’s Court.
    Action by Harry Eaton against Andrew Potts. There was judgment for plaintiff, and defendant appealed. On motion to relieve defendant from default in perfecting his appeal. Order directed to be prepared and presented, permitting defendant to file and serve undertaking nunc pro tune, and plaintiff to accept same, upon payment of ,$10 by defendant.
    Harold J. Glover, of Marathon, for appellant.
    John II. Miller, of Marathon, for respondent.
   SWEETLAND,

Acting County Judge. This action was tried in Justice’s Court, and resulted in a judgment in favor of the plaintiff. The defendant appealed from said judgment for a new trial in County Court, and seasonably paid the costs and duly served the notice of appeal, but inadvertently failed to file the undertaking, and thereafter the plaintiff appeared by regular notice of appearance, served by his attorney, who also served a notice of trial for the March term of this court. The defendant, on his own affidavit and all the papers and proceedings in this action, moves for leave to serve and file the undertaking required by law nunc pro tune, so as to thereby perfect his appeal. The plaintiff respondent opposed the application, but used no affidavits in opposition to the defendant appellant’s motion, and does not controvert any of the facts relied upon by the defendant appellant, nor does he raise the question of the insufficiency of statements in the affidavit. The good faith of the application is not questioned.

Section 3049 of the Code of Civil Procedure reads as follows:

“3049. Amendment; When Allowed. Where the appellant, seasonably and In good faith, serves the notice of appeal, upon either the justice or the respondent, but omits, through mistake, inadvertence,, or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal, the appellate court, upon proof by affidavit of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires.”

I consider the above section is sufficient authority for this application. Many difficult questions arise in Justice’s Court practice, perplexing to lawyers and important to clients, wherein the reports are of but little aid, because the question involved has not been reported. The Supreme Court practice is much more standardized and settled than Justice’s Court practice. There has been a tendency of late on the part of the Legislature to make more flexible the Justice’s Court practice in the interest of justice. This policy is welcomed by the profession and tends to promote justice.

Some of the cases decided under the former practice, particularly under section 355 of the Code of Procedure, are no longer authorities on this question, for that old, severe rule has been relaxed by section 3049 of the Code of Civil Procedure, as well as the general trend of judicial decisions. The plaintiff respondent cites the case of Kuntz v. Licht, 8 Hun, 14, decided under the former Code in 1876, which, I consider, is no longer an authority on this question, and even under the old practice it was considered discretionary with the court to grant relief in such cases. Lake v. Kels, 11 Abb. Prac. (N. S.) 37. The case of J. & M. Electric Co. v. Centotella, 77 Misc. Rep. 670, 138 N. Y. Supp. 571, discusses this question, and, while the facts differ from those in this case, yet it is an authority for holding, if the party in default complies with the requirement of section 3049 of the Code of Civil Procedure, he may be permitted to perfect his appeal by giving, filing, and serving the undertaking required' by law.

It is in accord with legal authority, the spirit of the law, and the trend of legal sentiment to exercise the discretionary power given by section 3049 to relieve the defendant appellant from his default; but to allow him the relief asked without imposing costs would tend to encourage neglect and dilatory practice. The defendant should pay the motion costs in order to be relieved of hi§ default and as a condition for granting the favor he asks.

An order may be prepared and presented, permitting the defendant appellant to file and serve his undertaking nunc pro tune, and the plaintiff respondent to accept the same upon payment of $10 by the defendant appellant.  