
    Livingston v. New York El. R. Co. et al.
    
    
      (Supreme Court, General Term, First Department.
    
    June 26, 1891.)
    1. Appeal—Time of Taking—Notice of Entry of Judgment.
    Code Civil Proc. N. Y. § 1351, which provides that an appeal “must be taken within 30 days after service upon the attorney for the appellant oí a copy of the judgment or order appealed from and a written notice of the entry thereof, ” must be strictly complied with, in order to bar the right of appeal at the end of such 30 days; and where the copy of the judgment is not attested by the clerk, and the notice of entry does not specify the place of entry further than to state “that the same was, on the Sth day of May, 1890, duly entered herein in the office of the clerk of the supreme court, ” is insufficient.
    2. Same—Estoppel.
    A copy of a judgment in favor of plaintiff, and notice of entry thereof, were served on defendants’ attorney for the purpose of limiting the time to appeal to 30 days after such service. Code Civil Proc. N. Y. § 1351. A notice of appeal served by defendants within the 30 days was afterwards held insufficient, and, in the proceedings to avert the consequences of not serving a sufficient notice of appeal within 30 days, defendants made various affidavits, in which they stated that their time to appeal had expired on June 7th, (the end of the 30 days.) Field, that such affidavits did not estop defendants to deny that their time to appeal had expired, where the copy of the judgment and notice of entry thereof, served on defendants for the purpose of limiting the time to appeal, was subsequently held not to be effective for that purpose.
    8. Execution—Stay Pending Appeal.
    Where an appeal is taken after execution has issued on the judgment appealed from, proceedings under such execution may be stayed, but the execution should not be set aside absolutely.
    Appeal from special term, Hew York county.
    Action by Caroline Livingston against the Hew York Elevated Railroad Company and the Manhattan Railway Company. From an order setting aside an execution issued on a judgment theretofore rendered in favor of plaintiff, plaintiff appeals. For former report, see 26 H. E. Rep. 751, 11 H. Y. Supp. 359. The notice of the entry of judgment served on defendants’ attorneys was as follows: “Take notice that the within is a copy of the judgment in this action, and that the same was, on the 8th day of May, 1890, duly entered herein in the office of the clerk of the supreme court.”
    Argued before Van Brunt, P. J., and Barrett and Patterson, JJ.
    S. B. Livingston, (Charles Gibson Bennett, of counsel,) for appellant. Davies & Rapallo, (Julien T. Davies and Brainard Tolles, of counsel,) for respondents.
   Patterson, J.

On the 8th day of May, 1890, the appellant (plaintiff) recovered at the special term a judgment against the defendants, in part for a sum of money awarded as damages to certain premises belonging to her. On the same day what purported to be a copy of the judgment was, with what «vas intended to be a notice of the entry thereof, served on the defendants’ attorneys. The time to appeal, had it been duly limited, would have expired on the 7th day of J une, 1880, and on that day the defendants’ attorneys undertook to make service of a notice of appeal, but that attempt was held by the general term to be ineffectual, and hence no service was made. 11 N. Y. Supp. 359. That decision was affirmed by the court of appeals. 26 N. E. Rep. 751. Subsequently, and on the 16th day of January, 1891, the defendants’ attorneys caused a new notice of appeal to be served properly. Meantime the defendants had made various efforts, by motions to the court, to have tlie regularity of the first appeal recognized, but those efforts were unfruitful, and on the 24tli day of December, 1890, the plaintiff’s attorney' issued execution to the sheriff of the city and county of New York. At that time the situation of the plaintiff was the following: She held the money judgment, from which no appeal had been taken, and there was no order staying proceedings, and nothing operating to prevent the issuance of that execution, although on the 2d July, 1890, a duly-executed undertaking on appeal was filed by the defendants. On the day the second notice of appeal was served, an order to show cause why the execution should not be set aside was obtained. The motion made on that order was granted, with costs against the plaintiff, and from the order entered thereon this appeal is taken.

The ground upon which the decision was based is that the second notice of appeal is good, because the copy of the judgment and the notice of the entry thereof, served on the defendants’ attorneys May 8, 1890, were not sufficient to impair the defendants’ right to appeal, irrespective of the mere question of time. Section 1351 of the Code of Civil Procedure provides that an appeal “must be taken within thirty days after service upon the attorney for the appellant of a copy of the judgment or order appealed from, and a written nonce of the entry thereof.” Strict compliance with this provision is required to operate a limitation of the time allowed, and so much do the courts favor the right of appeal that they have gone to great length in upholding the most technical objections to the sufficiency of the papers served pursuant to the section of the Code referred to. The learned judge in the court below cited in his opinion several of the adjudications of the court of appeals on the subject, and among them In re New York Cent. & H R. R. Co., 60 N. Y. 112; Kelly v. Sheehan, 76 N. Y. 325; Good v. Daland, 119 N. Y. 153, 23 N. E. Rep. 474. In the ease at bar the objections taken to the paper are that the copy of the judgment lacked the attestation of the clerk, and that the notice of entry did not specify the place of entry to be the office of the clerk of the city and county of New York, but merely stated that the judgment was entered with the clerk of the supreme court. These defects, at first blush, do not appear to be very substantial; but, when it is considered that a right of appeal may be destroyed in the most meritorious case by a mere accident, and that the court lias no power to relieve, it is altogether equitable to insist that the party seeking to enforce the technical advantage shall be held to strict technical practice himself, and the very objections now pointed out by the defendants have been deemed cogent enough to prevent the limitation of the time to appeal. Good v. Daland, supra; Valton v. Society, 19 How. Pr. 515, approved in Re New York Cent. & H. R. R. Co., 60 N. Y., supra. The learned judge below was therefore correct in holding that the right to appeal had not been limited, and that the notice of appeal served on the 16th January, 1891, was in time.

But the respondents claim that the appellant is in some way estopped from denying that the time to appeal had expired, and call attention to various statements made in affidavits used in the proceedings to avert the consequences of the default in serving the notice of appeal within 30 days from May 8, 1890, and which have been above referred to. In these affidavits it is stated that the respondents’ time to appeal expired on the 7th of June, but we do not think such statements constitute, under all the facts before us, either binding admissions, or anything else that fairly should be construed to deprive the respondents of the right- to appeal. They were made in view of the fact that a notice of appeal, wbicli they claimed to be regular and in time, had been served, and were founded upon that belief, and were made altogether with reference to the questions raised in the proceedings adverted to, and on the assumption that the service of the judgment and notice of entry were also regular. In this the affiants were mistaken, but their mistake has caused no injury to the respondents, and should not be considered tantamount to an estoppel.

We are of the opinion, however, that the order made by the learned judge is too broad, and that the execution should not have been set aside absolutely, and with costs against the plaintiff, but that proceedings upon it should have been stayed merely; for when it was issued, in December, 1890, the plaintiff had a clear legal right to enforce her judgment by appropriate process. The court had adjudged her to be entitled to the money. There was no appeal pending, and no impediment to its collection; for the undertaking filed July 2, 1890, without an appeal actually taken, did not in any way supersede the right to realize on the judgment. But, when the appeal was taken in January, it was proper to apply to the court to stay the execution on such terms as might be considered just. The order must therefore be modified so that proceedings under the execution be stayed until the determination of the appeal, without costs, and as thus modified it will be affirmed, without costs.

Van Brunt, P. J., concurs.

Barrett, J.

I also concur. There is no here of the mere waiver of an irregularity. The defendants waived nothing. They simply insisted that they had appealed according to law, when in fact they had not. The plaintiff failed to set the defendants’ time to appeal running by reason of her failure to serve a particular paper precisely as required by statute. The defendants’ acknowledgment of the receipt of that paper, and their expression of belief that their time to appeal was thereby limited, do not alter the legal effect of the plaintiff’s failure to do what was requisite to set the time to appeal running.  