Bishop v. Empire Transportation Co.

5 Jones & S. 17

Opinion

By the Court.—Freedman, J.

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.