
    John G. Mitchell, Respondent, v. Lynn D. Watkins, Appellant.
    
      Justices Court — service of a notice of appeal, by mail, upon the justice and upon the county clerk, is a compliance with section 3047 of the Code of Civil Procedure.
    
    The requirement of section 3047 of the Code of Civil Procedure, that a notice of' appeal from a judgment of a justice of the peace must be delivered personally to the justice or personally to his clerk, is satisfied where a notice of appeal and the justice’s fees are sent by mail to the justice and are delivered by the postman personally into the hands of the justide, who returns to the appellant’s attorney a receipt for the fees and subsequently files his return; like service on. the county clerk is sufficient.
    Appeal by the defendant, Lynn D. Watkins, from an order of' the Cattaraugus County Court, made, at a Special Term of said court and entered in the office of the clerk of the county of Cattaraugus on the 19th day of September, 1895, granting the plaintiff’s motion to dismiss an appeal taken by the defendant in' this action from a judgment rendered herein by a justice of the peace in favor-■of the plaintiff, unless the defendant pay to the plaintiff or his attorneys on said motion the sum of six dollars and serve on the justice a copy of the notice of appeal.
    May 27, 1895, an action was commenced by the plaintiff against the defendant before a justice of the peace of Cattaraugus county. Issue was joined thereafter and a trial was had, and a verdict was rendered for the plaintiff and judgment entered by the justice in favor of the plaintiff June 25, 1895. The plaintiff and A. C. McCall, who appeared for him. at the trial before the justice, were not residents of Cattaraugus county. On July 13, 1895, a notice of appeal was delivered to the clerk of Cattaraugus county, having •been sent to him by mail on July twelfth. On that day the appellant’s attorney sent, by registered letter, to the plaintiff at his residence, a notice of appeal, which was received by the plaintiff July thirteenth personally. He retained the notice and gave a receipt for the letter containing the same. On July twelfth the: appellant’s ■attorney sent a notice of appeal, with the costs included in the judgment and two dollars for making the return, in a registered letter to the justice before whom the cause was tried, which were received by the justice the same day, and the justice returned a receipt to the appellant’s attorney for the same. July thirty-first the justice filed a return. Notice of this motion was given September 11, 1895.
    
      B. F. Congdon, for the appellant.
    ■ A. O. Me Gall, for the respondent.
   Hardin, P. J.:

' Section 3047 of the Code of Civil Procedure seems to require that the notice of appeal shall be delivered personally to the justice or personally to his clerk. Upon the facts disclosed in this case, it appears that the notice of appeal was delivered within the statutory time to the justice of the peace personally. Although the delivery was made by the hand of a party who was in the service of the United States government, acting in behalf of -the mail service, the fact remains that the notice of appeal was actually delivered into the presence, custody and keeping of the justice of the peace, and that he received the same, retained it, and at the same time he received ■the fees required to be paid for making his return and also the costs included in the judgment. He thereafter mailed his return, which was filed with the county clerk. The appellant caused the notice of appeal to be delivered personally to the justice. Such delivery seems to be a literal compliance with the intent and purpose of the statute, and, we think, should be held to be a sufficient fulfillment of the requirements of the statute, (Rogers v. Rockwood, 59 Hun, 628, mem.; fully reported in 13 N. Y. Supp. 939; Farmer v. National Life Association of Hartford, 67 Hun, 119.)

(2) The notice of appeal, pursuant to the act of the appellant, personally reached the clerk in time and the clerk executed and delivered to the appellant an acknowledgment of the notice of appeal and retained the same.

We think the County Court obtained jurisdiction of the appeal, and that the motion made to dismiss it should have been denied.

All concurred.

Order reversed, with ten dollars costs and- disbursements, and motion denied, without costs.  