A motion to dismiss the appeal in this action is made on the following facts: The action is replevin and judgment was entered
To perfect this appeal it was necessary to take it within thirty days after service of a copy of the judgment appealed from, and a written notice of the entry thereof, by serving on the plaintiff’s attorney and on the clerk of the court, with whom the judgment was entered by filing it in his office, a written notice of the appeal. (Code Civil Pro., §§ 1300,1351.) Service on both the attorney and the clerk was essential, and the latter service was not made.
The excuse put forth for this non-service is that neither the copy of the judgment served nor the notice of entry was indorsed or subscribed with the name of the attorney and his office address or place of business as required by the second rule of the Supreme Court; and it is true that they were, neither of them, so subscribed.
In the case of Kelly v. Sheehan (76 N. Y., 325) a copy of the judgment with notice of the entry thereof, signed by the attorney without the addition of his office address or place of business, was served as here, and the notice of appeal was served one day too late if the notice of entry of judgment had been regular. But the Court of Appeals held that the notice of entry of judgment was irregular and void because it was not indorsed or subscribed with the name of the attorney and his office address or place of business. This omission was again held fatal to the sufficiency of the notice to set in motion the short statute of limitation to appeal in the case of Kilmer v. Hathorn (78 N. Y., 229).
These authorities are decisive of this case and the motion to dismiss the appeal should be denied, with ten dollars costs and disbursements.
Motion to dismiss appeal denied, with ten dollars costs.