By the court—Woodruff, Justice.
The court have no
power to extend the time within which an appeal may be [392]*392taken. The court are not authorized to do indirectly under color of amendment what they may not do directly. A notice of an appeal from an order when actually given in due season, if there be particular defects therein which do not destroy its substantial character, may be amended. And so of an appeal from a judgment.
But where a notice of an appeal from a judgment has been given in all respects perfect and containing nothing more, the court may not allow an amendment, so as to make the appeal also an appeal from an order denying a new trial, after the time for appealing from such order has expired, and so in substance and effect allow a new appeal.
An appeal from a judgment does not bring before the general term for review an order denying a previous motion for a new trial. To bring such an order under review, an appeal from the order is necessary. These conclusions embraced in the opinions given at the special term, on denying the motion upon which the present appeal arises, we now affirm. (Mr. Justice Hoffman, however, dissenting from our conclusion that the time to appeal to the general term cannot be extended.) It is not deemed necessary here to refer to the reasons which were there given, for the purpose of either repeating or reviewing them. But one ground for allowing an amendment in this case, or in the alternative permitting the defendant to file, and serve a notice of appeal nunc pro tunc, is now urged upon our attention, which although the facts relied upon appear on the papers, was not prominently presented at special term, nor discussed in the opinions there given.
It is insisted by the defendant, that the omission to file or serve a notice of appeal, has been waived in such wise that the plaintiff cannot now allege the defect, and that it is, therefore, proper to allow either an amendment or the filing of the notice nunc pro tunc, to the end that the record may conform to the actual condition of the cause before the court; that the general term has actual jurisdiction of the appeal as an appeal from the order denying a new trial, by the appearance of the respon[393]*393dent and arguing the appeal, not only as an appeal from the judgment, but also as an appeal from the order.
Whether, when no appeal has in fact been taken, but the parties nevertheless appear before the general term, present a case purporting to be a case or exceptions on appeal, and argue the matters arising thereon, avowedly and unequivocally as an appeal, they should not be held concluded thereby, we do not think it necessary in this case to decide. There are strong reasons for holding that an appearance on appeal and an actual argument and submission of the questions arising upon the case to the court, without raising the objection that no appeal has been taken, is a submission to the jurisdiction of the general term, and operates to confer jurisdiction as fully as if a formal appeal had been taken by filing and serving written notice thereof. It is, however, not too much to say, that the assertion of jurisdiction by the general term, in the absence of any actual appeal, should proceed upon acts of the respondent unequivocal in their character, and either indicating an intentional assent thereto, or being at least plainly inconsistent with a claim that no such appeal is pending.
The allegations on the part of the defendant here, upon which it is claimed that there has been a waiver of an actual notice of appeal, and a submission to the jurisdiction of the court, are mainly as follows: That there was no argument of the motion for a new trial at the special term, but that there was an understanding and agreement between the attorneys and counsel for both parties that the motion should be denied proforma and the whole matter considered at the general term. That the case made herein and used at the hearing in the general term contained all the evidence in the cause, and was thus prepared with a view to the discussion of all questions which the defendant’s counsel might wish to raise on a motion for a new trial. That the counsel for the parties respectively did insert in their points used on the argument of the appeal from the judgment, grounds for granting a new trial, which could with propriety be only urged on such a motion, and could not properly be considered on an appeal from the judgment only.
[394]*394In relation to the first of the defendant’s allegations, above in substance recited, the attorney for the plaintiff by his affidavit denies that there was any understanding or agreement of any kind between the parties than what is contained in the order itself, which denies the new trial. That order after reciting the motion and the grounds on which it was moved, denies the motion as “ upon hearing counsel,” and gives to the plaintiff liberty to perfect his judgment. It then provides that if the defendant appeal from the judgment within thirty days, such appeal shall operate as a stay of proceedings on such judgment pending the appeal. This order, if it throws any light upon this subject at all, indicates rather that no intent to pursue the matter as a motion for a new trial was entertained; and the defendant’s attorney states in his affidavits, that the order was prepared by the defendant’s counsel himself. So far as the order suggests anything, it is that an appeal from the judgment only was then contemplated. And in this direct conflict of affidavits, we do not find ourselves called upon to say that it is clearly shown that there was an agreement or understanding, such as is alleged on the one hand and denied on the other.
The case used on the argument of the appeal, no doubt contained all the evidence taken on the trial—that is not denied— no doubt the case as prepared for the purposes of the motion for a new trial, was printed without alteration, for use on the appeal to the general term; but when we recollect that however inconvenient and improper, it is a very common practice with a large portion of the attorneys at this bar, to present cases on appeal from the judgment, in the same form as here exhibited; and more especially, when we observe that there are in this case eighty-two exceptions, to the proper understanding and consideration of many of which, large portions of the testimony were essential, we think no great weight can be given to the circumstance that all the evidence was printed and furnished to the court on the argument of the appeal.
The remaining consideration is, that the counsel presented points on both sides, which could only be properly argued on [395]*395a motion for a new trial. On the part of the appellant, out of forty-three points presented, three are found of this description. On the part of the respondent one is found, to wit: that the damages are not excessive. But it is to be observed, that in the opening statement of the case as printed on his points, the respondent’s counsel states' explicitly that the cause “ now comes before the court upon a case upon an appeal from the judgment.”
On the other hand, it is quite clear, that the respondent nowhere suggests on his printed points, that the questions whether tne verdict is against evidence, or whether the damages are excessive, were not open to discussion on the appeal.
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By the court—Woodruff, Justice.
The court have no
power to extend the time within which an appeal may be [392]*392taken. The court are not authorized to do indirectly under color of amendment what they may not do directly. A notice of an appeal from an order when actually given in due season, if there be particular defects therein which do not destroy its substantial character, may be amended. And so of an appeal from a judgment.
But where a notice of an appeal from a judgment has been given in all respects perfect and containing nothing more, the court may not allow an amendment, so as to make the appeal also an appeal from an order denying a new trial, after the time for appealing from such order has expired, and so in substance and effect allow a new appeal.
An appeal from a judgment does not bring before the general term for review an order denying a previous motion for a new trial. To bring such an order under review, an appeal from the order is necessary. These conclusions embraced in the opinions given at the special term, on denying the motion upon which the present appeal arises, we now affirm. (Mr. Justice Hoffman, however, dissenting from our conclusion that the time to appeal to the general term cannot be extended.) It is not deemed necessary here to refer to the reasons which were there given, for the purpose of either repeating or reviewing them. But one ground for allowing an amendment in this case, or in the alternative permitting the defendant to file, and serve a notice of appeal nunc pro tunc, is now urged upon our attention, which although the facts relied upon appear on the papers, was not prominently presented at special term, nor discussed in the opinions there given.
It is insisted by the defendant, that the omission to file or serve a notice of appeal, has been waived in such wise that the plaintiff cannot now allege the defect, and that it is, therefore, proper to allow either an amendment or the filing of the notice nunc pro tunc, to the end that the record may conform to the actual condition of the cause before the court; that the general term has actual jurisdiction of the appeal as an appeal from the order denying a new trial, by the appearance of the respon[393]*393dent and arguing the appeal, not only as an appeal from the judgment, but also as an appeal from the order.
Whether, when no appeal has in fact been taken, but the parties nevertheless appear before the general term, present a case purporting to be a case or exceptions on appeal, and argue the matters arising thereon, avowedly and unequivocally as an appeal, they should not be held concluded thereby, we do not think it necessary in this case to decide. There are strong reasons for holding that an appearance on appeal and an actual argument and submission of the questions arising upon the case to the court, without raising the objection that no appeal has been taken, is a submission to the jurisdiction of the general term, and operates to confer jurisdiction as fully as if a formal appeal had been taken by filing and serving written notice thereof. It is, however, not too much to say, that the assertion of jurisdiction by the general term, in the absence of any actual appeal, should proceed upon acts of the respondent unequivocal in their character, and either indicating an intentional assent thereto, or being at least plainly inconsistent with a claim that no such appeal is pending.
The allegations on the part of the defendant here, upon which it is claimed that there has been a waiver of an actual notice of appeal, and a submission to the jurisdiction of the court, are mainly as follows: That there was no argument of the motion for a new trial at the special term, but that there was an understanding and agreement between the attorneys and counsel for both parties that the motion should be denied proforma and the whole matter considered at the general term. That the case made herein and used at the hearing in the general term contained all the evidence in the cause, and was thus prepared with a view to the discussion of all questions which the defendant’s counsel might wish to raise on a motion for a new trial. That the counsel for the parties respectively did insert in their points used on the argument of the appeal from the judgment, grounds for granting a new trial, which could with propriety be only urged on such a motion, and could not properly be considered on an appeal from the judgment only.
[394]*394In relation to the first of the defendant’s allegations, above in substance recited, the attorney for the plaintiff by his affidavit denies that there was any understanding or agreement of any kind between the parties than what is contained in the order itself, which denies the new trial. That order after reciting the motion and the grounds on which it was moved, denies the motion as “ upon hearing counsel,” and gives to the plaintiff liberty to perfect his judgment. It then provides that if the defendant appeal from the judgment within thirty days, such appeal shall operate as a stay of proceedings on such judgment pending the appeal. This order, if it throws any light upon this subject at all, indicates rather that no intent to pursue the matter as a motion for a new trial was entertained; and the defendant’s attorney states in his affidavits, that the order was prepared by the defendant’s counsel himself. So far as the order suggests anything, it is that an appeal from the judgment only was then contemplated. And in this direct conflict of affidavits, we do not find ourselves called upon to say that it is clearly shown that there was an agreement or understanding, such as is alleged on the one hand and denied on the other.
The case used on the argument of the appeal, no doubt contained all the evidence taken on the trial—that is not denied— no doubt the case as prepared for the purposes of the motion for a new trial, was printed without alteration, for use on the appeal to the general term; but when we recollect that however inconvenient and improper, it is a very common practice with a large portion of the attorneys at this bar, to present cases on appeal from the judgment, in the same form as here exhibited; and more especially, when we observe that there are in this case eighty-two exceptions, to the proper understanding and consideration of many of which, large portions of the testimony were essential, we think no great weight can be given to the circumstance that all the evidence was printed and furnished to the court on the argument of the appeal.
The remaining consideration is, that the counsel presented points on both sides, which could only be properly argued on [395]*395a motion for a new trial. On the part of the appellant, out of forty-three points presented, three are found of this description. On the part of the respondent one is found, to wit: that the damages are not excessive. But it is to be observed, that in the opening statement of the case as printed on his points, the respondent’s counsel states' explicitly that the cause “ now comes before the court upon a case upon an appeal from the judgment.”
On the other hand, it is quite clear, that the respondent nowhere suggests on his printed points, that the questions whether tne verdict is against evidence, or whether the damages are excessive, were not open to discussion on the appeal. It seems to us upon an examination of the points, in a high degree probable, if not quite clear, that the parties both supposed that all the points presented, might properly be discussed on the appeal then under argument.
But we are not prepared to establish deliberately by precedent, that if on an argument of an appeal from a judgment, a point is discussed without objection, which is not raised thereby, the appeal shall be thereby deemed modified, or that if a respondent’s counsel places on his own points one in answer to the appellant, which is only pertinent to a motion for a new trial, that he thereby consents that the appeal be deemed converted into an appeal from an order denying such a motion. We know that such mistakes, usually founded in an erroneous apprehension of the subject, and sometimes from uncertainty in the mind of counsel, as to what questions the court will feel at liberty to consider on an appeal from the judgment, are of frequent occurrence. Probably not a term has passed since the Code of Procedure was adopted, in which more than one ■ example of this description has not been exhibited. And when the court have had the notice of appeal before them, it has been very common, upon receiving the printed points, to call the attention of counsel to the distinction, and to pass over all points which are not addressed to the exceptions taken on the trial of the cause, or to the judgment rendered.
Upon a review of the affidavits submitted, and an examina[396]*396tion of the points used, it seems to us quite probable that, the counsel on the part of the-appellant, intended tq raise by the appeal the question whether the verdict was against evidence and whether the damages were excessive, and hardly less pro? bable that the respondent’s counsel supposed that - those ques>tions might properly be considered on an appeal from the judgement. But it is to be noticed that there was here an actual appeal pending that was an appeal from the judgment* and not an appeal from an- order denying a new trial. The appearance of the respondent was in fact, an appearance to answer to the appeal which had in truth been‘taken ;■ ap: pearance, noticing the appeal for- argument, and appearing in court to argue, and actually arguing the appeal, all these or any of them, neither expressly nor impliedly, admitted that any other appeal in the cause was pending- than an appeal from the judgment, nor gave the court jurisdiction of any other ap-' peal. This is by no means the case above referred to, in which an appearance when no formal appeal had been taken, noticing it for argument, appearing in court and actually and professedly arguing th,e-matter as an appeal, it is suggested might be deemed a waiver of notice of appeal
But in the circumstances of this case, the question- comes down to the naked inquiry whether if a respondent comes into court, with the statement at the outset that the cause comes before the court on an appeal from the judgment, and yet besides discussing numerous exceptions that are properly to be considered, argues a question whether the damages are- excessive or the like, or permits the adverse party to argue among-others, similar questions; he is to be deemed thereby to waive any notice of appeal from the order denying a new trial, and to give the court jurisdiction to reverse that order. We do not. feel at liberty so to hold.
The order appealed from, must be affirmed,