Brooklyn Warehouse and Dry Dock Company, Respondent, v. West End Dry Dock Company, Appellant

Brooklyn Warehouse and Dry Dock Company, Respondent, v. West End Dry Dock Company, Appellant. Reported below, 99 App. Div. 629. (Submitted February 20, 1905; decided February 28, 1905.) Motion to dismiss an appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered December 15, 1904, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term. The motion was made upon the grounds that the appellant had failed to tile his return within twenty days after the appeal was perfected by the filing of its undertaking, and that the notice of appeal was defective in that it was from the order instead of the judgment of affirmance; also motion for leave to amend undertaking and notice of appeal mmo pro timo and to extend time for filing return. Allen Broomhall for appellant. Peter S. Carter for respondent. [MAJORITY] Motion to dismiss appeal denied and appellant’s motion for leave to amend undertaking and notice of appeal nunc pro timo, and to tile return granted upon payment of ten dollars costs within five days to respondent’s counsel; and in default of such payment motion to dismiss appeal granted and appeal dismissed, with costs and ten dollars costs of motion.