The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-03
Superior Court-Gcncral Term.
OPINION ON POINTS or PRAcTICE-nRoRrANT TO
LAWYERS.

Superior Court-Gcncrai Term.
OPINION ON POINTS OF PRAcrIcE-IAPoRrANr TO
LAWYERS.
EBENEZER sEKLY ACT. ELIxAR 3. PRICHARD.
Present, Chief Justice Oakley, and Judges Dner,
Campbell, Slosson and Hoffman.
July by THE CoURr-HoFFxAs, Justice
This was an action TO recover costs and fees against
the plaintiffs client. reference was made to A.
Gust ESQ.,, who reported. new trial was granted
by consent. On June Is, 1850, report of R. EN-
met, Esq, was made for $434 SO. Judgment was
entered January II, 1853. On January 20, 1858,
consent was given by plaintiff that defendant have
twenty days p make a case, or to appeal from the
Judgment with stay Of proceedings, except that the
issue was to be Of the 18th January~the cause to
be put on the calendar for the ext term. Feb. 8,
ten days further time was given by Moody, Mr..
Seelys clerk in the name Of the latter, and sworn
to have charge Of his business be being SICK March
s, 1853, ten days further time given in the same
manner. It is sworn to that Seey resumed personal
attention to his business in May, 1853, and on the
18th of that month he writes to Wetmore, the at
tcrney Of the defendant, requesting that ne would
coll and see him about the Prichard case, as his
strength was feeble Sept. 20, 1858, 6eely notices
the cause for argument at the General October
Term. Sept. 26, he countermands such notice.
Wetmore swears that after he got the note Of May
Is, he called on Seely, obtained his minutes, aud
then made the case; that he went to PLAINTIFFS office
and settled it, and amendments were inserted in it
in plaintiff handwriting. This is in part corrobo.
to print. Seely requested Wetmore to send it
to him to look at. This was while it was in
course OF printing Van Doren states that he
got it from Bell, and carried it to Seely.
The afidavts are unfortunately contradictory, but
do not find that Seely denies the assertion that
case was lett with him and retained. In September,
1868, this printing appears to have been going on.
folios. In January, 1854, an application was made
to the Court for relief, by asking time, and that
Seey return the case kept in his hands, It il fairly
deducible from the afdavits that until the 18th of
September, 1858, the plaintiff did nothing to repel
the presumption drawn from his letter and notice of
trial, that the was in course of preparation
with his own consent. And upon re-examining the
papers, cannot see denial of Van Dorens state
ment Of the case, having it his own amendments,
and having been left with him. 1t may be consider
ed case for the exercise Of favor in letting the
defendant in if the Court had right to do The
objections Of the plaintiff areFirst That the Court
at Special Term cannot extend the time to make
This time is fixed by the rules Is, IL and 18;
and even if Judge OF Chambers may not extend
the time, Judge holding Court may hear a mo-
tion and grant it. 6 p. R., 375 and Justice Mitch
ELL in Mason vs.. Jones, / Code Rep, $3.50 Next,
the main question is, whether the Court can enlarge
the time for taking an appeal The order ia inaccu-
rate in the phrase to perfect an appeal. None was
in truth taken. The authorities are contradictory,
and about balanced. In Enos Vs. Thomas Is How
ard, 303), the Court at general term (3d distrct)
held that NO such power exists. Justice Welles, in
Rowels Vs. Mccormick, lIbid, 33o), decided to the
Adams Il Code Rep, N. s. %, 1867, and by JUS
tice Parker, in Turner VS.. Siyenail q Code Rep,
96), the power was asserted. In Remieul va. Harris
g sandf Rep, 64e), IN this Court, heard Nov. "a,
judgment was given on the oath Of Feb 1e49; notice
Of appeal was served the 9Th Of May. The
delay arose from q motion to set aside the
term until the 18th Of April. The Code Of
le48 governed. The exception In what was then
the 366th section, was referred to decisive; and it
held that the appeal was too late, and that the
adverted to Crtteaden vs.. Adams and differed from
il. He thought it was a legislative restriction Of
tend. history OF the provisions and variations of
the Code this subject is necessary to understand
the point. For much Of it ! am indebted to the
opinion of Justice Mason, in Crittenden Adams.
In the Code Of 1S48 the 149th section provided that
the Court, in furtherance OF justice, and on such
terms as might be proper, might amend any plead
ing or proceeding by adding or striking out the
name OF any party, &c: The whole section con-
ton Of the Code Of 1849. The additional new clause
in ls49 was as foiiows:-" The Court may likewise,
in its discretion, allow an answer or reply to be
made other act to be DONE after the time limited
by this act, or by an order enlarge such time; and
may also in it's discretion, and upon such terms as
may be just, at any time within one year after no
tice thereof, relieve party from judgment or
other proceeding taken against him, through his
mistake inadvertance surprise, or excusable neg
lect and may supply an omission in any proceeding;
and whenever any proceeding taken by aparty fails
to conform in any respect to the provisions OF this
Code, the Court may in like manner, and upon like
terms, permit an amendment Of such proceeding, so
as to make it comfortable thereto" The Code, as
amended in 1851 divided the 173d section into two
sections, and section TIA contains the clause above
pnf1A no Y1rea 1fiantxy fha
section OF the Code of l64s. 1t does not affect the
present question: because it has received the settled
construction that it relates to the power OF Judge
out of Court, and because it provides for proceed
ings before judgment solely. And it may be
remarked that in excepting appeals it characterzes
them CHAT is, all appeals before judgment, at
least) as proceedings in an action. When we bring
together the 405th and 18th sections we find that the
time for taking any proceeding in an action before
judgment, except appeals, may be enlarged by
Judge on affidavit at chambers-Of course by the
Court One clause OF section TIA enables the Court
to relieve party from judgment, order, or other
proceedings taken against him, through mistake,
surprise, or excusable neglect. Another clause
allows the Court to supply any omission and to
amend any proceeding which fails to conform to
any Of the provisions Of the act. So that relief in
every form, at every stage OF a suit before iudg-
ment, by enlargement of time, may be had, and re-
lief after Judgment by staying its enforcement, or
setting itaside. Is the taking appeal after judy.
ment an exception 1t cannot be doubted that
the phrase 0r other act to be DONE, is sufficiently
comprehensive to include an appeal If an appeal
is act in cause, ard its performance is limited
as to time by the Code it would seem impossible to
deny the power Of the Court to permit it, But it is
said that an appeal is not an act in cause, but a
new action. Justice Watson, in Enos rs. Thomas,
states this and refers to Rice Floyd in the Court
of Appeals Il Code Reporter, ll2.) 1t ia reported
in Comstock, COS. do not see how that case
supports the proposition. 1t merely decided that
the 27lst section of the Code was applied to future
proceedings in suits pending when the Code took
July, the day when took effect because judgment
was perfected in it in May preceding. And the
power to review by appeal in such case given,
not of judgent rendered before the first Of july
but OF proceeding had after that date in
suit pending at that date It is, then, simply
a decision that suit was not pending on the first
Of July, ls4s, when Judgment had been given
in May preceding, so as to authorize an appeal in
August under the Code. It does not settle the