Court of Appeals.

[Oct. any question of law which in its opinion ought to be reviewed by the Court of Appeals. Defendant served a notice of appeal from an order not a final order in a special proceeding. Subsequently he obtained an order allowing an appeal. Held, that the notice of appeal was a nullity and the appeal was properly dismissed.

2. APPEAL TO COURT OF APPEALS-LEAVE-CONDITION PRECEDENT. Code Civ. Proc. § 1325, which provides that an appeal to the Court of Appeals from an order must be taken within 60 days after service of a copy of the order appealed from on the attorney of the party adversely affected thereby, does not authorize an appeal from an order not a final order, without the previous allowance of an appeal by the Appellate Division.

Application for reargument of the motion to dismiss the appeal. Application denied.

For dismissal of appeal, see 159 N. Y. 574; 54 N. E. 1095.

TIME TO APPEAL TO COURT OF APPEALS,-continued.

Extension of the time to appeal in case of the death of the party entitled to appeal before the expiration of the time to do so is provided for in § 785 of the Code of Civil Procedure.

The right to appeal after the time therefor has expired cannot be conferred by an order vacating the judgment and ordering it re-entered as of a later date.

Humphrey v. Chamberlain, 11 N. Y. 274.

The statute prohibiting the enlargement of the time to appeal does not yield to circumstances, even to promote the ends of justice.

Wait v. Van Allen, 22 N. Y. 319.

The actual decision in the principal case and in Lane v. Wheeler, 101 N. Y. 17; 3 N. E. 796, was undoubtedly correct but what was a mere assumption in the earlier case seems in the principal case to be established as a rule of practice, to wit, that an appeal can be taken after sixty days from the service of the order, if the leave of the Appellate Division cannot be obtained within that time. Ofttimes such leave cannot be obtained within sixty days unless the Appellate Division can be specially convened to grant it. Section 1325 of the Code of Civil Procedure should be amended so as to make the time to appeal from an order, when leave to appeal is necessary, commence to run from the decision on the application for such leave and § 190 of the Code of Civil Procedure should be amended so as to require the application for such leave to be made at the opening of the next succeeding term of the Appellate Division after that at which the determination to be appealed from was made, or at some other appropriate time. At present, if the Ap

1899]

Steamship Richmond Hill Co., Limited v. Seager.

Ullo, Reubsamen & Baldwin, for appellant.

Wing, Shoudy & Putnam, for respondent.

MARTIN, J. This is an application for the reargument of a motion to dismiss the appeal herein. The motion was granted upon the ground that no valid appeal had been taken to this court. Manifestly the order appealed from was not a final order in a special proceeding, and consequently no appeal could properly be taken, unless allowed by the appellate division. Without obtaining such an allowance, the appellant served a notice of appeal. He afterwards obtained an order allowing an appeal, and two questions were certified by that court to be answered by the court of appeals. No notice of appeal was subse

TIME TO APPEAL TO COURT OF APPEALS,-continued.

pellate Division adjourns for more than sixty days at the time of making the determination, a party desiring leave to appeal from an order not a final one is likely to find himself without remedy, unless vigilant enough to procure a stay of entry of the order.

The same emergency might arise also in connection with a final order determining an action commenced in an inferior court, which is not appealable as a matter of right under Subdivision 1, of § 191 of Code of Civil Procedure, to which a similar amendment is needed. It does not arise in case of judgments under either subdivision of that section for the evident reason that access to the Appellate Division is always possible within a year, to apply for the necessary leave.

An appeal taken on the same day but before the hour of adjustment of costs and filing of the judgment-roll is not premature.

Blydenburgh v. Cotheal, 4 N. Y. 418; 5 How. Pr. 200; 3 Code R. 216.

An appeal is premature when taken from the order affirming a judgment sustaining a demurrer and dismissing the complaint. Judgment of affirmance should have first been entered and the appeal taken from that.

Kilmer v. Bradley, 80 N. Y. 630.

In Wells v. Danforth, 7 How. Pr. 197, the Court of Appeals dismissed an appeal as too late, dating the time when the time to appeal commenced to run back to the entry of the order for final judgment in the Supreme Court, although in time counting from the actual perfection and docketing of the judgment. That decision, however, was under § 331 of the Code of Procedure, which dated the time to appeal from "the judgment." Subsequent

quently served, so that the question presented is whether the order allowing an appeal rendered valid the appeal which was previously taken. This is not an open question in this court. In Guarantee Trust & Safe-Deposit Co. v. Philadelphia, R. & N. E. R. Co., 160 N. Y. 1; 54 N. E. 575, it was held that the service of a notice of appeal from other than a final order in a special proceeding, without leave of the appellate division, was a mere nullity, that an order subsequently obtained did not validate the appeal, and that that court had no authority to grant an order allowing an appeal as of the date when the notice of appeal was served. Section 9 of article 6 of the constitution limits

TIME TO APPEAL TO COURT OF APPEALS,-continued.

amendment fixed the time at the perfection of the judgment by filing the judgment-roll.

The time to appeal commences at the entry of the decree and not at its enrollment.

Woolen Mfg. Co. v. Townsend, 1 Code Rep. N. S. 415.

It seems, the time to appeal as to a defendant who obtains a separate judgment in his favor, before the litigation with other defendants is ended, commences to run as soon as his judgment is entered and does not await the determination of the entire controversy between all the parties.

Camblos v. Butterfield, 15 Abb. Pr. N. S. 197.

It seems, it is irregular to appeal to the Court of Appeals before all the appeals from the same judgment have been disposed of by the court below, but the objection cannot be first taken on the argument of the irregular appeal, nor by one not a party thereto.

Muldoon v. Pitt, 54 N. Y. 269.

An order of the General Term correcting its order previously entered and served, merely as to the date of making it, does not require a new entry and service thereof, so as to give the right to appeal therefrom, the time to appeal from the original order having expired.

Matter of Beckwith, 87 N. Y. 503.

An appeal taken more than a year from the entry of the judgment is too late, notwithstanding it is within a year from the making of an order for retaxation of the costs included in the judgment by which the costs were reduced.

Wilson v. Palmer, 75 N. Y. 250.

Hewitt v. The City Mills Co. 136 N. Y. 211; 32 N. E. 768.

Thurber v. Chambers, 60 N. Y. 29.

Where further proceedings were required to perfect the judgment of the

1899]

Steamship Richmond Hill Co., Limited v. Seager.

the jurisdiction of the court of appeals, and declares that appeals may be taken, as of right, only from judgments or orders entered upon decisions of the appellate division finally determining actions or special proceedings. It then provides that the appellate division may allow an appeal upon any question of law which in its opinion ought to be reviewed by the court of appeals. Thus, by the express provisions of the constitution, no appeal to the court of appeals can be taken from other than a final order in a special proceeding until the right to appeal shall have been granted by the appellate division. Until such allowance is ob

TIME TO APPEAL TO COURT OF APPEALS,-continued.

General Term, the time to appeal did not commence to run till such further proceedings were taken and the rights of the parties finally determined. Catlin v. Grissler, 57 N. Y. 363, 370-1.

An appeal from the determination of the General Term in certiorari proceeding to review an assessment of a tax must be taken within sixty days, under § 7 of chap. 269, Laws of 1880 (now § 255 of Tax Law).

People v. Keator, 101 N. Y. 610; 3 N. E. 903.

In criminal cases appeals to the Court of Appeals may be taken from judgments and orders alike within one year from rendition or entry. Code of Criminal Procedure, § 521.

b. How limited.

A notice of entry served before the actual entry of an order is not effectual to limit the time to appeal.

Matter of N. Y. C. & H. R. R. Co. 60 N. Y. 112.

No service of a copy of the judgment or notice of entry is required to set the time running within which an appeal to the Court of Appeals from a judgment can be taken.

Marsh v. Pierce, 110 N. Y. 639; 15 Civ. Pro. 49; 17 N. E. 729.

In this case Earl, J., said, "It was doubtless supposed, in limiting the time for appeals to this court to one year, that the party desiring to appeal would have ample opportunity to obtain information of the entry of the judgment without any notice thereof from the other party." It was also held that failure to return the printed copies of the return on appeal was not a waiver of the respondent's right to object that the appeal was too late, the notice of appeal having been returned in due season for that reason prior to the service of such printed copies of the return.

A respondent moving to dismiss an appeal, on the ground that the time VII. N. Y. A. C.

9

tained, no right of appeal exists, and consequently any proceeding in the nature of an appeal before the right comes into existence must be regarded as nugatory.

The appellant's claim that by section 1325 of the Code of Civil Procedure he was required to appeal within 60 days after the service of a copy of the order and notice of its entry, and, hence, that that statute conferred upon him the right to appeal without the allowance of the appellate division, provided it was subsequently obtained, cannot be upheld. That section confers

TIME TO APPEAL TO COURT OF APPEALS,—continued.

for appealing had expired before the notice of appeal was served, stands upon a strict right and must show a strict and technical compliance with the statute on his part.

Good v. Daland, 119 N. Y. 153; 23 N. E. 474.

Therefore, service of a copy of a judgment that was not attested by the clerk at its entry will not set running the time to appeal therefrom. Id.

Notice of the order and its entry, which does not show by endorsement or otherwise the office address or place of business of the attorney serving it, is ineffectual to limit the time to appeal.

Fortsmann v. Shulting, 107 N. Y. 644; 14 N. E. 190.

The time to appeal is set running by service of a copy of the judgment of affirmance in certiorari, to review an assessment for taxes, with notice of entry endorsed by the attorney for the respondent giving his office and business address, notwithstanding the order of affirmance was not so endorsed.

People v. Keator, 101 N. Y. 610; 3 N. E. 903.

A notice of the entry of an order of the Appellate Division in the county elerk's office, without referring to its intermediate entry in the office of the elerk of the Appellate Division and the filing of a certified copy with the county clerk, is sufficient to set running the time to appeal therefrom to the Court of Appeals.

Guarantee Trust & S. D. Co. v. Philadelphia, R. & N. E. R. Co. 160 N. Y. 1; 54 N. E. 575.

In Sheridan v. Andrews, 81 N. Y. 650, a motion to dismiss an appeal because too late was denied, it being founded on an affidavit showing service of the order appealed from on October 17th, the day it bore date, with notice of entry thereof on the same day, and the opposing affidavits showing that the copy order served had no date, was not addressed to anyone, contained no written notice of entry thereof and was not in fact entered or filed, until October 24th.