Majority
p. 138BRYANT against BRYANT. New York Superior Court; General Term, December, 1867.
Headnote
Amendment.-—Notice oe Appeal.The court at special term has not power to allow an amendment of a notice of appeal, the effect of which is not merely to correct a mistake, but to enlarge the time allowed by the code for taking the appeal.
Appeal from an order.
This action was tried in October, 1864. On the 25th of that month, the justice who tried the cause made an order returnable before himself, November 2nd, for a motion for a new trial on his minutes. On the return of the order, the plaintiff objected to the motion, on the grounds : 1. That the stenographer’s minutes were not the judge’s minutes; and 2. That there was not an order of the general term extending the trial term to November 2. The- justice overruled the objections, and denied the motion for a new trial. The order denying the motion for a new trial was entered November 12.
Subsequently, the plaintiff applied to the justice for a resettlement of the order of November 12, so that it might embrace the objections to his entertaining such motion. The motion for a resettlement was denied, and an order to that effect entered January 6, 1865.
Prom this last mentioned order the plaintiff appealed, and the same was modified by the general term, December 30, 1865—as was also the order of November 12, 1864 — by striking out “12th” and inserting “2nd” in its place.
On January 7, 1867, the defendant served a notice of appeal “from the order of this court, made January 6,
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I860, as modified by the general term by order made December 30, 1865.” . -
On November 7, 1867, the appeal coming on for argument, and it appearing that the appeal was from the order of January 6, 1865, instead of the order of November 12, 1864, the case was ordered to stand over, to enable the "defendants to apply to the special term for a correction of the notice of appeal.
A motion was thereupon made at special term, founded upon an affidavit of the defendant’s attorney “that the notice of appeal contained the words ‘January 6, 1865,’ by mistake, instead of the words and figures ‘November 12, 1864';’ that the said mistake arose from deponent reading said modifying order of December 30, 1865, as though it merely modified the order of January 6, instead of the order of November 12, whereas both said orders were modified in one and the same folio, and by supposing that the order of January 6 was the order denying the motion for a new trial;” and that the defendants appealed in good faith from what the attorney believed to be the order for a new trial.
The motion to correct the notice of appeal was denied, and the defendants now appealed to the general term.
G. W. Cotterill, for the appellants.
John Graham, for the respondent.
No opinion seems to have been written at the special term—but it is understood that the motion was denied on the ground that the justice conceived he had no power to allow the correction to be made, inasmuch as the notice of appeal sought to be amended correctly referred to an order in the cause which had been entered on the day mentioned in the notice ; and that, therefore, to amend the notice by inserting therein the date of another and different order, would be virtually allowing'an appeal from the latter order after the time for appealing therefrom had expired.
I think the decision was correct. In the case of Fry v.
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Bennett in this court ( 16 How. Pr., 385 ), the power of the court to allow an amendment of a notice of appeal, the effect of which would "be, not merely to correct a mistake, "but to enlarge the time for appealing, in violation of the provisions of the code, was fully discussed, and all the cases examined. And it -was agreed "by all the judges that the amendment could not "be allowed. I have no doubt the defendant’s attorney intended to appeal from the order of November 12; but unfortunately his notice recited the date of another and different order, which had actually been entered on the day of its date. To allow an amendment now, would be in fact allowing an appeal long after the time for appealing had expired, which is expressly forbidden by the code.
I think the order appealed from should be affirmed.
Order affirmed, with costs.