Section 535 of the Code of Criminal Procedure, as amended by chapter 464, Laws of 1926, *320 provides that an appeal to the Appellate Division must be brought on for argument within ninety days after the service of the notice of appeal or the granting of a certificate of reasonable doubt, unless the court for good cause shown, shall enlarge the time for that purpose. A similar provision is applicable in capital cases (Code Crim. Pro. § 539).

In the case of People v. Cowan (245 N. Y. 532) this court said: “ The court may, in a proper case and in the exercise of discretion, enlarge the time to bring the case on for argument after it has expired in order to prevent a dismissal.”

The same rule should apply under section 535. The order should be reversed and the case remitted to the Appellate Division to decide the motion for enlargement of time and to dismiss the appeal on the merits.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Ordered accordingly.