Fogel v. Schmalz

Paterson, J. — Respondent has submitted a motion to dismiss the appeal herein on several grounds.

The transcript does not in some respects conform strictly to the rules of this court, but the defects are matters of form, and not so irregular in character as to call for a dismissal of the appeal. The interlineations and erasures were made before the transcript was filed or certified to by the clerk, and do not in any respect render the record difficult to read or understand.

Another ground of the motion is, that ihe undertaking on appeal was not filed within time. The certificate of the clerk, however, filed herein with the appellant’s affidavit in opposition to the motion, shows that an undertaking on appeal was filed in the court below on the day the appeal was taken, viz., on September 1, 1888, but plaintiff’s attorney having filed exceptions to the sufficiency of the sureties on the sixth day of September, 1888, another undertaking—the one set forth in the transcript—was given, and approved within twenty days thereafter.

Motion denied.

McFarland, J., Fox, J., Sharpstein, J., and Thornton, J., concurred.