In re Williams

that, under all the attendant facts and circumstances, it did, in effect, constitute a valid extension of time for taking an appeal and serving a case for a period of 60 days, which had not yet elapsed when such notice of appeal was served; and an order bearing date on the 20th day of October, 1893, was thereupon made and entered, reciting to some extent the history of the proceedings, and providing “that said appeal be allowed; that said Curtis reserve said notice of appeal upon said Lincoln within twenty days after date of this order, and that said Lincoln accept and retain said notice.” On the 15th day of November, 1893, contestants’ attorney remailed the notice of appeal to petitioner’s attorney, who at once returned it, .with the reasons indorsed that it was served tpo late, that it was not properly served, and that it did not appear therefrom who the parties to such appeal were. It is entirely apparent that the service of November 15, 1893, was not sufficient to perfect an appeal in the first instance. ■ There is no authority for taking an appeal from an order or decree of a surrogate’s court by service of notice of appeal by mail. Code, § 2574. If no appeal was, in fact, then pending, such service was a nullity; but, if an appeal was pending, it .was of little consequence in what manner the original notice of appeal was returned to the petitioner’s attorney. Of course, no court has the authority to extend the time for taking an appeal, or to allow an appeal to be taken after expiration of time, (Id. § 784; Clapp v. Hawley, 97 N. Y. 610 ;) but it was entirely competent for the parties to stipulate an extension ■of time or to waive any statutory provision made for their benefit, i(Ex parte Crosby, 8 Cow. 119 ; Buel v. Trustees of Lockport, 3 N. Y. 197 ; Root v. Wagner, 30 N. Y. 9 -17; Baker v. Braman, 6 Hill, 47 ;) and the only question involved in the former motion was as to whether or not the parties had in effect stipulated such extension, and the decision of such motion was a judicial determination that the acts and correspondence of the attorneys constituted such extension, and, a notice of appeal having been served within such extended time, petitioner’s attorney was not justified in refusing to accept the same. The case and exceptions, however, were concededly served too late, and it is now urged in opposition to this motion that the surrogate’s court possesses no authority to relieve the contestants in this particular, or to permit the service of a case after the expiration of the time therefor, whatever the excuse for such default, or however meritorious the application. If such is the case, the practice in surrogates’ courts is sadly defective; and, if there is at present no law sanctioning the granting of such relief in a proper case, a little law should be immediately made remedying such defect. But a little observation will show that parties are not remediless in such a case. Very general authority is given to courts of record in the exercise of their discretion to relieve a party from the consequences of an omission to do an act necessary to protect his rights, upon good cause shown, (Code, § 783,) and under the authority of this section courts very generally grant the right to serve a case after the expiration of the time therefor, upon proper application being made, and upon such terms

as seem just. This section is not in terms made applicable to surrogates’ courts, (Id. § 3347, subd. 4;) but, if the authority to grant relief in cases of this kind is not specifically conferred upon surrogates’ courts by virtue of the section of the Code cited, and is not an inherent power necessarily incident to its general authority and jurisdiction, specific authority seems to exist from the provision of supreme court rule 32. This rule limits the time in which to serve a case, where an appeal is taken from an order or decree of a surrogate’s court, to 10 days after service of such decree or order and notice of entry thereof, but the rule further provides that “the surrogate, on appeal from his court, may, by order, allow further time for the doing of any acts above provided to be done on such appeal;” and it cannot with any degree of consistency be urged that the power to extend the time in which to serve a case, granted by this rule, must be exercised before the expiration of the time for so doing. The only reasonable construction to be placed upon the provisions of rule 32, above quoted, in view of the general mode of procedure in other courts and of the objects to be attained, viz. a careful protection and supervision of the rights of all the parties, is that the surrogate’s court is clothed with ample authority thereby to permit a party, at any time after an appeal is taken, to serve a case, if the application is seasonably made therefor, and good reason shown. An order should be accordingly made permitting the contestants, on or before the 10th day of February, 1894, to serve their proposed case, and to fully perfect their appeal by filing and serving the requisite undertaking on appeal and upon paying $10 costs of opposing this motion to the petitioner. Ordered accordingly.