Opinion
Submitted November 28, 1882
Decided December 15, 1882
Albert Mathews for appellant.
Edward F. Bullard for respondent.
The order appealed from authorized an amendment of the notice of appeal by adding the words "and from the judgment entered against the plaintiff in this action." The effect of such amendment is to allow an appeal from the judgment as well as the order denying a new trial, which was originally taken by the notice of appeal. Such an amendment, we think, is not authorized by any of the provisions of the Code or any of the decisions of the courts. By the Code, an appeal from a judgment to the General Term must be taken within thirty days after service upon the appellants of a copy of the judgment appealed from, and a written notice of the entry thereof. (Code of Civil Procedure, § 1351.) The notice in this case, with a copy of the judgment, were served a few days after the appeal was taken, and it is not apparent upon what ground the amendment can be made so as to make the notice effective for the purpose of taking an appeal from the judgment. The time fixed by law within which to take an appeal cannot be extended. (Code of Civil Procedure, §§ 783 and 784.) Nor is there any provision of the Code which authorizes an amendment in such a case. Section 1303 of the Code of Civil Procedure has no application to cases of this character. Nor are we able to perceive upon what ground an amendment to the notice could be granted, the effect of which would be to disregard these provisions. The provisions of section 724 of the Code which authorize the court "to supply an omission in any proceeding" or to "permit an amendment thereof to conform to the provision of this act," do not embrace an amendment to the notice of appeal so as to make it effective in allowing an appeal which has not actually been taken. Such an amendment does not rest in the discretion of the court, but is of a vital character which strikes at the very foundation of the proceeding. The case of Mott v. Lansing (5 Lans. 516), which was affirmed in this court, is not in point. There the amendment allowed the plaintiff to insert in the notice a stipulation that final judgment might be entered against the plaintiff as required by subdivision 2, section 11, of the old Code. This does not extend the time for serving the notice of appeal, but merely conforms the notice to the existing provisions of law and bears no analogy to the case at bar.
The case of Bouton v. Bouton (40 How. Pr. 216; 42 id. 11), relates to the practice of the Supreme Court on a motion to set aside the judgment of a referee, and it in no way involves the question which is presented upon this appeal.
We are not called upon to consider whether, under the Code of Civil Procedure, the decision of the court below can be reviewed upon an appeal from the order. It is sufficient that no authority exists for allowing such an amendment.
The order should be reversed and the motion denied, with costs.
All concur, except TRACY, J., absent.
Ordered accordingly.