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Bryant v. Bryant

30 N.Y. Super. Ct. 49 7 Rob. 49 Court N.Y. Super. Ct. English

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p. 49
Martin L. Bryant, adm’r, &c. plaintiff and respondent, vs. Mary H. Bryant et al. defendants and appellants.

Headnote

A notice of appeal from an order should not he allowed to he amended by inserting therein the date of another and different order from that therein men-mentioned, the effect of which would be to allow an appeal long after the time for appealing therefrom had expired, whatever may be the evidence of an intent to appeal from the order whose date ie proposed ts be substituted.
(Before Robertson, Ch. J., and Monell and McCunn, JJ.)
Heard December 23, 1867;
decided January —, 1868.
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, on the 2d of November, 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
p. 50
justice overruled the objections, and denied the motion for a new trial. The order denying the motion for a new trial was entered on the 12th of November. Subsequently, the plaintiff' applied to the justice for a resettlement of the order of the 12th of November, so that it might embrace the objections to Ms entertaining such motion. . The motion for a resettlement was denied, and an order to that effect entered on the 6th of January, 1865. From this last .mentioned order the plaintiff appealed, and the same was modified by the general term on the 30th of December, 1865, as was also the order of November 12, 1864, by striking out “ 12th” and inserting “second” in its place.
On the 7th of January, 1867, the defendant served a notice of appeal “ from the order of this court, made on the 6th day of January, 1865, as modified by the general term by order made the 30th day of December, 1865.”
On the 7th of November, 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 1 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.” That the defendants appealed in good faith from what said attorney believed to be the order for a new trial.
p. 51
The motion to correct the notice of appeal was denied, and .the defendants appealed to the general term.
G. W. Cotterill, for the appellants.
John Graham, for the respondent.

Ho 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 of appealing therefrom had expired.

I think the decision was correct. In the case of Fry v. 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 Hovember 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 effect 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, with costs,

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