SILSBEE against GILLESPIE

SILSBEE against GILLESPIE. Supreme Court, Fourth Department, Fifth District; General Term, November, 1870. Notice of Appeal.—Jdeisdictioiíal Defect.— Waives. In a cause in the supreme court, a defect in the notice of appeal from a judgment of the special term to the court at general term, in not specifying that the appeal is taken to the general term, and not specifying the office of the clerk from which the return should be ■ obtained, does not affect the jurisdiction of the general term; and when such objection is raised as a ground for dismissing the appeal, the only question is whether the respondent was misled. Such a defect, moreover, is waived by the defendant’s noticing the cause, and stipulating for a reservation. > Motion to digmigg an appeal. Thig action wag brought by Henry C. Silgbee and another, as executor, &c., against William W. Gillespie and others. One of the defendants, Mary E. Smith, demurred, and the demurrer was sustained, and judgment entered. The plaintiff, to appeal from the judgment, served a notice which was entitled in the supreme court and with the names of the parties, but simply stated that the plaintiff appealed from the judgment entered on such a day in the cause, without stating that the appeal was taken to the court at general term, or in what county clerk’s office the judgment was entered. Mr. Garfield, for the defendant Smith, moved to dismiss the appeal, on the ground of insufficiency in the notice.—I. The notice of appeal does not specify any court to which the appeal was taken. Section 348 of the Code provides for appeals from the special term and circuit to the court at the general term,, and section 349 provides for appeals from orders ; and the notice does not show that this cause is within either of these provisions. The defect is a defect in substance, and is not amendable. It goes to the jurisdiction of the court. II. The appeal is from an order ; but it does not show the office of the clerk in which the order was entered, so' that a return could be obtained (People v. Tarbell, 17 How. Pr., 120). E. Forman, for the plaintiff, Read an affidavit stating that the respondent had noticed the appeal, and that he had also, at a previous term, stipulated that the cause might go over; and he cited, as to waiver, Pearson v. Lovejoy (53 Barb., 407). [MAJORITY — By the Court.—Mullin, P. J. (orally, after consultation).] By the Court.—Mullin, P. J. (orally, after consultation). We are of opinion that the defect in this notice of appeal does not affect the jurisdiction of the court. It is but an irregularity ; and therefore the objection is reduced to the question whether the party objecting was misled. In this case it does not appear the respondent was misled ; moreover the defect is one which we consider to be waived by his subsequently noticing the cause, and by his stipulation in reference to the time of hearing it. The motion to dismiss must be denied with ten dollars costs of motion.