Thorn v. Roods — 14 N.Y. St. Rep. 345

Majority

p. 345

Stephen Thorn, Resp’t, v. Samuel J. Roods, App’lt.

(Supreme Court, General Term, Third Department,

Filed February 1888.)

Headnote

1. Justice court—Judgment of—Appeal to county court for new trial CANNOT BE TAKEN UNLESS ISSUE HAS BEEN JOINED—CODE ClVIL PRO. § 3068.

An appeal from a judgment of a justice’s court cannot be taken to the county court for a new trial in a case where issue was not joined in the. justice’s court.

p. 346

.2. Appeal—Amendment of notice of—When allowed—Code Crv. Pro. §3049. . .

By Code Civil Procedure § 3049 authority is given to amend a notice of appeal and the court may in its discretion allow amendments to he made or omissions to be supplied in an appeal already taken, but where the appeal is perfect but different from what was intended by the appellant, permission will not be allowed to change it from an appeal from the determination of questions of fact,to an appeal from the determination of questions of law.

■3. Same—Court may not directly or indirectly extend time within WHICH APPEAL MAY BE TAKEN.

It is not within the power of a court to extend the time within which an appeal may be taken, and leave to amend a notice of appeal will not be granted when such an amendment would operate to allow ah appeal the time within which it might have been instituted having elapsed.

Jesse Styles, for app’lt; P. C. Ford, for resp’t.

This is an appeal from an order made by .the county judge of Saratoga county, dismissing an appeal from a judgment rendered in justices’ court.

The notice of appeal demanded a new trial in the county court. Issue not having been joined in justices court, the defendant was not entitled to take an appeal to the county court for a new trial. Code Civil Procedure, 3068; McCann v. Sheeke, 5 N. Y., Week. Dig., 420.

The plaintiff, thereupon, and properly, moved to dismiss the appeal. On the argument of such motion, appellant’s .attorney read an affidavit in which he stated that defendant intended to appeal on questions of law only, that he so prepared the original, but that his clerk in preparing the copies for service omitted to erase from the printed blanks used for such purpose the words “The appellant demands a new trial in the appellate court,”, and asked among other . things that the notice of appeal be amended by striking out the demand for a new trial. Authority to amend a notice of appeal is given by section 3049 of the Code of Civil Procedure, and permits the court in its discretion to supply omissions or grant amendments to perfect an appeal already brought.

The aim and scope of the section seem to be to provide a method by which the court may in the interests of justice, in cases of excusable neglect, grant such amendments as may be necessary, to perfect an appeal, actually and in good faith, served upon either the justice or respondent. The power conferred is to supply such omission or grant snch' amendments as may be necessary to perfect the appeal i. e. the appeal already taken, and not to perfect another and different appeal; or transform the appeal actually taken into an appeal for another purpose. In this case, what the appellant actually did was to appeal for a new trial. To perfect such an appeal no amendment was required. At

p. 347

the time of the hearing of the motion,it was too late to take an appeal upon questions of law, and the power did not exist in the court to extend the time within which to take such an appeal.

In the emergency thus presented, the appellant contended for such a construction of the section as would declare it to contain an authorization for the court, under color of an amendment to do that indirectly, which it may not do directly, i. e., authorize the taking bf an appeal after the time within which the Code provides that it may be done has expired.

The learned court properly held that no such power was conferred.

Order affirmed, with ten dollars costs and printing disbursements.

Landon and Pish, JJ., concur.