De Lamater v. Havens , 5 Dem. Sur. 53 ( 1887 )

The Surrogate.

The counsel for the appellant claims that he served the case in time, for the reason that his time was not limited, because of the failure of the counsel for the executrix to state their post office address, or place of business, in the notice endorsed on the copy decree served. Rule 32, of the General Rules of the Supreme court, provides that a copy of the case and exceptions shall be served “ in the Surrogate’s court within ten days after service of a copy of the decree or order, and notice of the entry thereof.” It also provides that “ the Surrogate, on appeals from his court may, by order, allow further time for the doing of any of the acts above provided to be done on such appeals.” As this court never allowed further time to serve a case, in this instance, and has no power to grant such time after the period within which it may be done has fully elapsed, it would seem that, under Rule 33, the service of such case must be deemed to have been abandoned.

The only question, therefore, appears to be whether proper notice of the entry of the decree was given in December last. Under Rule 2, such a notice must be subscribed with the names of the attorneys and their office address, or place of business. The notice here was subscribed by the attorneys, and their office address was written thereunder, as being “ 46 Exchange Place, New York.” In this, it seems to me, they fully complied with the Rule. It is not disputed that the above is their office address. The Rule does not require that the words “ office address,” or “ place of business,” as the case may be, shall be written under the names of the attorneys, but that the address shall be written as it was in this instance. Doubtless, the reason why the rule is in the alternative is to meet the case of a layman appearing as his own attorney. The lawyer is to give his office address, and the layman his place of business.

As has been stated, the Rule prescribes the time within which a copy of the proposed case and exceptions is required to be served. The Supreme court has power to establish such a rule of practice for this court (Code Civ. Pro., §§ 2545, 997); but it is quite clear that this court, recognizing such rule as binding, must be guided solely by it, and has no power to disregard, relax, or extend its operation, as that court may do in regard to its own rules. If the appellant consider himself entitled to relief, he should apply to the appellate court, at special term (Redf. Surr. Prac., 3rd ed., 807).

However much it may be a subject of regret that the attorney for the appellant is placed in this position, I do not feel at liberty to extend the rules beyond what I consider to be their true limitations.

Order accordingly.