
    SUPREME COURT.
    Brown, Survivor, &c., agt. Heacock.
    An appeal can not be dismissed on motion, on the ground that a case or exceptions have not been served in time.
    The party may rely in his appeal upon matters appearing on the face of the record.
    
      Sixth District General Term,
    January, 1854.
    This is a motion made by the plaintiff to dismiss the defendant’s appeal from a judgment entered for the plaintiff on the 17th day of June, 1853, on the report of a referee. Notice of the judgment was served by the plaintiff’s attorneys by depositing the letter in the post-office at Elmira on the 17th day of June, 1853, directed to the defendant’s attorney at Buffalo, and paying the postage thereon. The letter was in fact postmarked at Elmira, June 18th, as appears by defendant’s affidavit.
    On the 8th day of July, 1853, the defendant’s attorney deposited in the post-office at Buffalo a copy of exceptions, &c., directed to plaintiff’s attorneys at Elmira and paid the postage thereon. This letter was post-marked on the 9th of July and was received on that day, as appears by plaintiff’s affidavit.
    The notice of appeal, undertaking, &c., were served on the 11th of July, 1853.
    The motion to dismiss the appeal is founded on the want of a case or exceptions, the one proposed or sent not having been served in twenty days, agreeably to the Code.
    Smith & Murdock, for Motion.
    
    S. Love, Opposed.
    
   By the Court—Shankland, Justice.

This motion can not be sustained. Whether a case or exceptions were made and served in time, or not, affects not the regularity of the appeal. The appellant may appeal from a judgment whether he makes a case or exceptions, or not. He may on such appeal reverse the judgment for causes appearing on the face of the record; as, for instance, that the complaint does not state facts sufficient to constitute a cause of action. (Code, § 148.)

The appeal, in this case, was regular, according to the pro visions of the Code, §§ 327, 332.

If the defendant has failed to make and serve/his case in season, or if he has failed to file it with the clerk within the time prescribed by rule 17, he is deemed to have abandoned it, and must either discontinue his appeal or go to argument on the judgment record alone. But the appeal is not lost by reason of the loss of his case or exceptions.

It is unnecessary to the decision of this motion to examine whether the case was deposited in the post-office at Buffalo in twenty days after service of the notice of judgment. If the defendant shall need relief, on account of laches, he must move for it, so that the plaintiff can meet the application by opposing affidavits, if he shall be so advised. This motion to dismiss the appeal is denied with ten dollars costs.  