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Bishop v. Empire Transportation Co.

37 N.Y. Super. Ct. 17 5 Jones & S. 17 Court N.Y. Super. Ct. Decision date 1874-01-31 English

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Majority

p. 17
JAMES BISHOP, et al., Plaintiffs and Appellants, v. THE EMPIRE TRANSPORTATION COMPANY, Defendant and Respondent.

Headnote

Appeal, extension op time poe, what does not ofebate as.
1. A motion to set aside a judgment does not operate to extend' the time for appealing therefrom.
Before Freedman, Curtis and Speir, JJ.
Decided January 31, 1874.
Motion to dismiss plaintiffs’ appeal from judgment.
p. 18
John L. Qadwalader, for the motion.
Edward L. Andrews, opposed.

Judgement having been entered in this action upon the dismissal of plaintiffs’ complaint on the trial in favor of the defendant, the plaintiffs, after receipt of written notice of the judgment, purposely permitted the time within which to appeal, to expire. They preferred to rely for success upon a motion which they made, to vacate the judgment for irregularity in the entry thereof (see ante, p. 12), but failed in the attempt. Having made their election, they should be held to the consequences. The motion to set aside the judgment, did not affect the time for appealing (Renouil v. Harris, 2 Sandf. 641 ). The time within which an appeal mhy be taken, is fixed by statute, and it cannot be extended by the courts. This proposition is so firmly established that it requires no citation of authorities in support thereof.

The notice of appeal having been served too late, the appeal must be dismissed, with costs.

Curtis and Speir, JJ. concurred.

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