299 N.Y. 281 (1949)

The time limit to take an appeal is 30 days after service upon the appellant of a copy of the judgment or order and written notice of its entry, unless the appellant themselves entered the order or served notice of its entry.

Summary

This case clarifies the deadline for filing an appeal under New York law (CPLR 5513[a]). The Court of Appeals held that the 30-day appeal period begins when the appellant is served with both a copy of the order/judgment and written notice of its entry, unless the appellant themselves entered the order or served the notice. In this specific instance, because the appellants did not enter the order and the respondent served the notice of entry, the appellants’ time to appeal ran from the date they received notice of entry.

Facts

The specifics of the underlying dispute are not detailed in this decision, as the focus is solely on the procedural issue of the timeliness of the appeal. The key fact is that the appellants sought to appeal an order, but the respondent argued that the appeal was untimely.

Procedural History

The case involves a motion to compel the plaintiff to accept service of a notice of appeal. The lower court denied the motion, effectively ruling that the appeal was untimely. This decision was appealed to the Court of Appeals.

Issue(s)

Whether the appellants’ time to appeal ran from the date of service of the order with notice of entry upon them, where they did not enter the order and the respondent served the notice of entry.

Holding

Yes, because under CPLR 5513(a), the 30-day appeal period begins when the appellant is served with a copy of the order or judgment and written notice of its entry, unless the appellant themselves entered the order or served the notice of its entry.

Court’s Reasoning

The Court of Appeals relied on a strict interpretation of CPLR 5513(a), which specifies the time limit for taking an appeal. The statute states that the appeal must be taken within 30 days after service upon the appellant of a copy of the judgment or order “and written notice of its entry.” The single exception is when the appellant themselves entered the judgment or order or served notice of its entry, in which case the appeal is limited to 30 days after “he did either.” The court distinguished this case from People ex rel. Manhattan Stor. & Warehouse Co. v. Lilly, 299 N.Y. 281, where the appellant was treated as having entered the order. Here, the appellants did not enter the order, and the respondent served the notice of entry. Therefore, the court concluded that the appellants’ time to appeal ran from the time they were served with notice of entry. The court explicitly states the relevant rule: “The basic time limit to take an appeal is within 30 days after service upon the appellant of a copy of the judgment or order “and written notice of its entry” (CPLR 5513 [a]). The single exception to the general rule is where the appellant himself ‘ ‘ has entered the judgment or order or served notice of its entry ”, in which event his appeal is limited to 30 days after “ he did either ”.