Civil Procedure · MBE-tested

Benjamin McElwain, Appellant, v. The Erie Railway Company, Respondent

71 N.Y. 600·New York Court of Appeals·1877·NY

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Opinion

Benjamin McElwain, Appellant, v. The Erie Railway Company, Respondent. (Argued November, 13, 1877; decided December 20,1877.) This was a motion to vacate a dismissal of appeal by the Commission of Appeals for a want of prosecution under chapter 9, Laws of 1873. The appeal was brought in June, 1864. The attorney of record for the appellant died in 1866. Tiie appeal was dismissed in May, 1874. No attempt was made to substitute another attorney until May, 1877; held, that without regard to other objection the unexcusable laches of the appellant presented an insuperable obstacle to granting the motion. C. R. Lockwood, for motion. Samuel Hand, opposed. [MAJORITY — Per Curiam] Per Curiam opinion for denial of motion. All concur. Motion denied.