Humphrey v. Chamberlain — 11 N.Y. 274

Majority

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Humphrey and another against Chamberlain.

Headnote

The supreme court has not power to relieve a party from an omission to appeal to the general term from a judgment within the time prescribed by law. Per Denio, J.

Nor should it attempt to do so.hy ordering the judgment to be set aside and reentered as of a subsequent date. Per Denio, J.

But where such an order was made at a special and confirmed at a general term of the supreme court; Held, that no appeal would lie from the same to this court.

Section 11 sub. 3, of the code contemplates an order made in a proceeding based upon a judgment and assuming its validity.

Motion to dismiss an appeal. The judgment of the supreme court in this cause, upon a report of referees, was entered on the 9th day of April, 1853, in the clerk’s office of Monroe county. It was in favor of the defendant for §1679.19, damages and costs. The plaintiffs’ attorneys obtained a stipulation from the defendant’s attorney for time to make a case, and the yprepared and served one accordingly; but there was a question of regularity respecting the case, and no appeal from the judgment to the general term was taken within the time allowed by the code. On the 7th day of June, 1853, the plaintiffs’ attorneys gave notice of a motion to set aside the judgment for irregularity on account of an alleged omission to give notice of the adjustment of the costs; “ and also that the judgment be set aside to enable the plaintiffs to bring an appealand likewise for leave to serve a case or bill of exceptions. The omission to give notice of appeal was shown to have been the result of inadvertence. The affidavits in opposition to the motion showed that notice of the adjustment of the costs had been waived by the plaintiffs’ attorneys. On the 27th of June, 1853, the supreme court, at a special term, made an order upon this application, directing the judgment to be set aside and vacated, “ and that the clerk of the county of Monroe forthwith re-enter the said judgment and docket the same,” The plaintiffs were

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■directed to give a bond to pay the jugdment, with costs, in case it should be affirmed on appeal, and to pay $10 costs of the motion; and * they were to have further time to serve a case. This order was affirmed by the general term, and from the order of affirmance an appeal was taken by the defendant to this court. The papers presented by the plaintiffs on this motion contained a certificate of the justice who held the special term, stating that the judgment Avas not set aside on the ground of irregularity, but on the contrary was held to be regular; and that the order for re-entering it was made simply to give a new date to the judgment, so as to enable the plaintiffs to appeal.

M. S. Newton, for the plaintiffs, insisted that the order was not one from which an appeal would lie.

H. R. Selden, for the defendant.

The code prescribes the time within which an appeal may be taken from the special to the general term; and it is not in the power of the court to extend that period, or to allow an appeal when the time has been suffered to expire. (Code, §§ 332, 405.) As the legislature has seen fit to deny to the courts the power to relieve a party from the consequences of an omission to appeal within the period allowed by law,- it was obviously improper for the supreme court in this case to attempt to effect the same thing indirectly, by affixing a new date to the judgment. (Bank of Monroe v. Widner, 11 Paige, 529.) But the order sought to be appealed from is not one from which an appeal to this court will lie. The portion of section eleven of the code, which is supposed to meet the case, is that which gives an appeal from a final order “upon a summary application in an action after judgment.” (§ 11, subd. 3.) Reading the sentence in connection with the other parts of the section, it is evident that it contemplates a proceeding based upon the judgment, and which assumes its validity; and this is the construction which has been put upon it by this

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court. (Sherman v. Felt, 3 How. Pr R. 425 ; Dunlop v. Edwards, 3 Comst. 341.) It is not the policy of the code to allow a review, in the court of appeals, of interlocutory orders in an action, unless they are such as put an end to the suit and prevent the rendering of a judgment from which an appeal would lie, or unless there is an appeal from the judgment. Although there was a judgment in this ease when the application was made, yet the effect of the order is to cause another judgment to be entered in its stead; and the latter thus becomes the final determination of the cause, and every step which preceded it is in its nature interlocutory, and not subject to review here, unless upon appeal from the judgment, as provided in the 1st subdivision of section 11.

Appeal dismissed.