In re the estate of Darragh , 3 N.Y.S. 283 ( 1888 )

The Surrogate.

This is an application by the contestant appellant for leave to file and serve an undertaking on appeal herein. The notice of appeal was duly served. The- application is opposed by the special guardian on the ground that it should be made to the general term.

Section 1303, Code of Civil Procedure, provides that “where an appellant seasonably and in good faith serves the notice of appeal either upon the clerk or Upon the adverse party or his attorney, but omits, through mistake, inadvertence or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal, or to stay the execution of the judgment or order appealed from, the court in or to which the appeal is taken, upon proof by affidavit of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires.” This section is made applicable to an appeal taken from a decree of this court by section 2575.

This court has full jurisdiction to entertain this-application. In the following cases an appeal was taken to the general term, and an application under section 1303 (or 327 old Code) made at special term and entertained. Mills v. Thursby, 11 How. 113 ; N. Y. Cent. Ins. Co. v. Nat. Protection Ins. Co., 10 How. 344. And it was expressly held in Arnoux v. Homans, 32 How. 382, that the court below could entertain such application.

The case of Parks v. Murray, 109 N. Y. 646, cited by the special guardian, is not in point. There the appeal to the Court of Appeals was perfected by filing and serving the notice of appeal and the requisite undertaking ; and after the appeal was perfected (sec. 1326), the Supreme Court made an order directing plaintiff to file a new undertaking. Held, the motion should have been made in the Court of Appeals and not in the Supreme Court.

In the case under consideration the appeal has not been perfected. Having no doubt of the power of this court to grant the application, there simply remains the question of whether it ought to be granted on the facts as stated by petitioner, which are not controverted. The appellant, I think, has acted in good faith and his omission to file and serve the undertaking is excusable neglect. Motion granted.