Erasmi v. Pan American Trust Co.

267 A.D. 164, 45 N.Y.S.2d 129, 1943 N.Y. App. Div. LEXIS 5999

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 10, 1943
• Status: Published

Opinion

Her Curiam.

Bule VII of the Buies of the Appellate Term, First Department, provides that a motion for leave to appeal from a determination of that court must be returnable within twenty days after the entry of the order determining the appeal.

Here the determination aErming the judgment of the Municipal Court was entered July 16, 1943. The motion for leave to appeal was initiated by order to show cause procured on August 9,1943, and returnable August 16,1943. Concededly this motion was not timely under the rule; nevertheless the motion was granted, the Appellate Term, in effect, waiving the requirements of rule VII.

We deem this error. A court may at times, in the interests of justice and to avoid hardship, waive strict compliance with its rules. It is expressly empowered by statute, after the commencement of action, to enlarge the time for doing any act or taking any proceeding even though that time has expired (Civ. Prac. Act, § 98). That statutory right is limited, however, so that no extension may be granted which would extend the time to appeal (Civ. Prac. Act, § 99).

The Court of Appeals of this State has held that limitation of time in which to apply for leave to appeal results indirectly in a limitation of time to appeal and no judge or court has power to extend such time after its expiration. (Pollak v. Port Morris Bank, 257 N. Y. 287.) By analogy, rule VII likewise indirectly limits the time to appeal, and we deem it error to entertain or grant a motion for leave to appeal after the period prescribed in the rule has expired.

The appeal should be dismissed, with ten dollars costs and disbursements.

- Townley, Glennon, Untermyer, Dore and Callahan, JJ., concur.

Appeal unanimously dismissed, with ten dollars costs and disbursements to the respondent. [See post, p. 809.]