Tompkins McIlvaine, as Surviving Partner of the Firm of Townsend & McIlvaine, Respondent, v. George Steinson, Appellant, and The Board of Education of the City of New York et al., Respondents

Tompkins McIlvaine, as Surviving Partner of the Firm of Townsend & McIlvaine, Respondent, v. George Steinson, Appellant, and The Board of Education of the City of New York et al., Respondents. (Submitted May 29, 1905; decided June 6, 1905.) Reported below, 90 App. Div. 77. Motion to dismiss an appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered May 2, 1904, modifying and affirming as modified 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 no proper notice of appeal had been served within the time required bylaw and no undertaking had been filed. Einar Chrystie for motion. George Steinson, in person, opposed. [MAJORITY] The motion of plaintiff to dismiss the appeal of the defendant George Steinson herein is denied if said defendant complies with the conditions hereinafter set forth, but failing to do so in any particular the motion is granted, with ten dollars costs. "Within twenty days after the entry of this order and the due service of a copy thereof by mail on said defendant George Steinson, addressed to him at Brimfield, Massachusetts, the said defendant shall (1) perfect his appeal (this court holding there was due service of the notice of appeal) by furnishing an undertaking for costs and damages, not exceeding five hundred dollars, under section 1326 of the Code of Civil Procedure ; (2) designate an attorney at law, practicing in the city of New York, to receive for him service of all notices and papers in this action; (3) receive service of notice of appeal and all necessary notices and papers to enable the plaintiff to perfect a cross-appeal to this court from the judgment of the Appellate Division herein; (4) pay to the plaintiff ten dollars costs of this motion and the additional sum of twenty-five dollars.