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People v. Kautzmann

219 A.D. 461 Court First Department, Decision date 1927-01-25 English

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p. 461
The People of the State of New York, Respondent, v. Frederick W. Kautzmann, Appellant.
First Department,
January 25, 1927.

Headnote

Crimea — appeal — Appellate Division has power to permit extension of time in which appellant may perfect appeal — Code of Criminal Procedure, § 635, construed.
Section 535 of the Code of Criminal Procedure, requiring the appellant to procure the record on appeal and the appellant’s points to be filed within ninety days after service and filing of the notice of appeal, is mandatory, but the Appellate Division is not deprived by that section of jurisdiction to hear and determine upon its merits a motion made after ninety days for an extension of the appellant’s time, for good cause shown, to put his case on the calendar for argument when reached.
Motion by the appellant, Frederick W. Kautzmann, for enlargement of his time to perfect appeal from judgment of conviction rendered in the Court of General Sessions of the County of New York on September 21, 1926.
William P. Thomas, for the motion.
Edwin B. McGuire, opposed.

We do not regard the language of section 535 of the Code of Criminal Procedure (as amd. by Laws of 1926, chap.

p. 462
464) as mandatory, further than to require the appellant to procure the record on appeal and the appellant’s points to be filed within ninety days after service and filing of the notice of appeal. If that be not done and no motion be made for an extension of time within said period, the court may deem the appeal abandoned and may, without notice, enter an order dismissing the appeal. The court, however, is not deprived by the section of jurisdiction to hear and determine upon its merits a motion made after the expiration of said ninety days for an extension of appellant’s time, for good cause shown, to put his case on the calendar for argument when reached.

The motion should, therefore, be granted.

Present — Dowling, P. J., Merrell, Finch, McAvoy and Proskauer, JJ.

Motion granted, and order of this court entered on the 14th day of January, 1927,[1] vacated; and time of appellant within which to file the record on appeal and appellant’s points extended to and including March 21, 1927, with notice of argument for April 14, 1927.

* See 219 App. Div. 707 .— [Rep.