Bryant v. Bryant

No 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 for appealing therefrom had expired.

I think the decision was correct. In the case of Fry v. *140Bennett 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 November 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 fact 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.

Order affirmed, with costs.