General
Blake & Johnson v. The Lyon & Fellows Manufacturing Company
75 N.Y. 611·New York Court of Appeals·1878·NY
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Opinion
Blake & Johnson v. The Lyon & Fellows Manufacturing Company.
Where the sureties to au undertaking upon appeal to this court from a final judgment fail to justify, the appellant may give a new undertaking at any time within the year allowed for appeal, and when given' the appeal becomes effectual; and if the respondent fails to except to the sureties within the time allowed, the new undertaking becomes perfect for the purposes of the appeal. (New Code, §§ 1325, 1326, 1327.)
(Argued December 10, 1878;
decided December 17, 1878.)
This was a motion to dismiss an appeal. The appeal was from a final judgment of General Term. An undertaking was given and copy thereof with notice of filing was served with notice of appeal. The sureties were excepted to and failed to justify. Within the year however allowed for appeal, a new undertaking was given, and copy with notice served, the sureties to the new undertaking were not excepted to. Held, as above.
Nathaniel C. Moak for motion.
Walter S. Cowles opposed.
[MAJORITY — Per Guriam]
Per Guriam
opinion for denial of motion to dismiss appeal. All concur.
Motion denied.