The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1858-06-29
NEW YORK HERALD TUESDAY, JUNE 49, 1853
Inc Fry Libel Suit Against 4 NE Herald.
SUPERIOR cOURT-GENsRAL .'xaM.

1He Fry Libel Suit Against 4 NE Herald.
SUPERIOR COURT-0ENsRAL s~xaA.
PieseIt-Hon. Judges Bosworth and ooorn
JUNE rs -EiDard p. Fly w. James Gordon Bena it,
On toe trial the plaintiff had q verdict, the defendant
moved 1t special term for trial, aud bis mo soo was
depied pro foma on the 18th April 1857 On the 7sh
Nay 1857 the defendant appealed from the udg mont
mo appeal WAS argued 81 the December general teru,
and after Ihe argument il discovered that the notice
Of appeal only from tho judgment and not from the
order denying new trial. Defendant then moved for
lave 70 amend bis notice OF appeal which motion WAS
denied o. special term. Tho defendant appealed from
the order denying biz motion amend and the 25sa
day Of Nay 1885, served notice Of appeal from the order
dspysg new trial The plaintiff moved TO dismiss the
appeal too lsae Adais were put In 90 both Sides
and on the 18th INST the pants motion 70 dismiss the
ing bis motion 10 amend were argued together Messrs
D. D. Fied, d GalbraaA and Townshead for defend
ant J. r Sherman for plaintiff
Woodruff. --Thw case before On Saturday inse
point Of interest," but not entirely novel fne
detendan. moved a special term for new trial nis
fendaDs counsel drew up and submitted 70 toe pAnts
cOunse aud the Judge he dra OF an order denying the
new trial. or this drsft tbs plaintiffs counsel made
COPY the Judge signed the Defendants DRAFT ORDER the
pans counsel hts part took bis copy OF ssid order
Or transcript and procured the clerks oer'cte there
fled entered that day. On the next day. the plaintiffs
attorney entered the order but no copy was served on
Judgment and gave notice Of IT, From this Judgment the
defendant appealed and in printing his case printed the
S,1ss ssgm
whether there any appeal from the order denying
new trial. rhen the defendant moved 70 almond his no
denying q new trial, ana on TINS motion being denied
he served Q formal notice of appeal from the order
s s. new It'd sssn n1s on NJ ss
tho c4Ser ' ~ss made, se. Inc time to :sps.! had
nux "a haury IN ma Unfit
moved to dismiss the appeal and commended that the cir
cumssnces of the amounted to written notice. and
whether the notice to the defendant was sucienL Tns
design or the provision OF the statute requiring appeals
from orders TO be within thirty days after notice is Cd
vious its obvious import that should stand ~
statute of Imitation and has for il purpose TO bring &C
tops end and gives the means and limits the time
within which litigation should nnally DO ct "a end,
and places each party in the position and furnishes the
means by which he can htgne no further By this pro
vision NOT enough tina, the party nas notce, no orM
would be sufficient does bis preserce
in court at the time OF the making toe order suffice, aud
the notice must be such TO appriss him Of the whole
proper and authentic source else the opposite party
not bound by and the attorney for the adverse parry Is
the person from whom the notice should proceed exeps
in cases of orders TO change attorney and SUN like
orders. This notice. too TO be given 70 him. and this
means served upon him. This prevents surprise
and enables the party to his position, whe tho party
who obtains the order can sit the thirty days runoing,
whenever he pleases TO give notice OF IT, Notice here
mears written notice and served en- the opposite party
and this is prevent any question ~ 10 whether the
party had been served with the ordor or any similar
question There may be as where IA execution has
been levied in which tho levy might be regarded a. no
tee Of the Judgment but appeal from order
we hold thai after the order has been entered aud ed
TO become record there must be some &C, OF the op
poeite party order set the time TO appeal moou
The party may procure . copy Of the order from the
Clerk but that would not be sufficient; Is necessary
preliminary TO the common Of the tme for appeal
ing that q written notice be given The question not
novel Appesls the Court of Chancery werc 70 be
taken some within certain period After entry in the
minutes after recording the decree some after the
making and some after the enrolment Of the Decree and
finally appeals from interlocutory orders sesc TO be
TAX en- within fifteen days after notice thereof should have
been given. The language almost identical with
that used In theHCode. Upoer tho Revsed Statutes
Il was held by Chief Justice Savage, 10 jenkins
W. Welde IA Wendell $780, that where the order appeal
ed from Is net entered by the appellant the party
must serve copy Of that ORDER formal notice of toe
entering OF ouch order # he wsbos 10 limit tue time tor
appealing from the same; and in Tyler Simmons 20
Paige 1921 the Chancellor adopted this view, although
the apRusge OF the statute In that "afer
tcen without the word "wriitcn" We regard the CUES
ton % ected by authority and we must hold thai toe
crcums anccs aid amount 10 such notice the Co1c
requires and that therefore, the deiendsats appeal
taken in time and the motion to dismiss the appeal must
be denied. Notion TO dlsis pal denied accordingly
The ordor denying tho defendants application TO amend
his notice appeal will be affirmed As his appeal from
the oroer oepyipg triaa taken time, there
no occasion amend the motion OF appeal nom the adg
menf.