Newkirk v. Hooker

New York Court of Common Pleas

Newkirk v. Hooker

33 N.Y.S. 694, 12 Misc. 402, 67 N.Y. St. Rep. 595

DecidedMay 6, 1895

StatusPublished

This text of 33 N.Y.S. 694 (Newkirk v. Hooker) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Newkirk v. Hooker, 33 N.Y.S. 694, 12 Misc. 402, 67 N.Y. St. Rep. 595 (N.Y. Super. Ct. 1895).

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Opinion

BISCHOFF, J.

Consistently with the rules governing appeals from the city court to this court, no review-of this order is to be had here. It does not affect a substantial right. Code Civ. Proc. § 3191, subd. 3. An appeal from an order directing a party to accept notice of appeal may be heard by the ultimate court of review, and the order reversed, should it appear that the direction below was, in effect, an extension of the time to appeal, for this affects a substantial right (Clapp v. Hawley, 97 N. Y. 610); but the .appeal is to be dismissed if the order accomplished merely the result of requiring the adverse party to accept the notice before the time to appeal had expired, and this because no right is infringed by the direction, and, in fact, no order is required (Thurber v. Chambers, 60 N. Y. 30). So, necessarily, of an order denying the motion, for where the time to appeal has not expired a direction that the notice "be accépted would be idle; the service itself accomplishes the required result; and, on the other hand, should the applicant have [695]*695let the statutory period elapse, the motion must of necessity meet with a denial (Code Civ. Proc. § 784; Crook v. Crook, 12 N. Y. St. Rep. 663), except in a case falling within section 785, which this case is not. Appeal dismissed, with costs. All concur.

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BISCHOFF, J.

Consistently with the rules governing appeals from the city court to this court, no review-of this order is to be had here. It does not affect a substantial right. Code Civ. Proc. § 3191, subd. 3. An appeal from an order directing a party to accept notice of appeal may be heard by the ultimate court of review, and the order reversed, should it appear that the direction below was, in effect, an extension of the time to appeal, for this affects a substantial right (Clapp v. Hawley, 97 N. Y. 610); but the .appeal is to be dismissed if the order accomplished merely the result of requiring the adverse party to accept the notice before the time to appeal had expired, and this because no right is infringed by the direction, and, in fact, no order is required (Thurber v. Chambers, 60 N. Y. 30). So, necessarily, of an order denying the motion, for where the time to appeal has not expired a direction that the notice "be accépted would be idle; the service itself accomplishes the required result; and, on the other hand, should the applicant have [695]*695let the statutory period elapse, the motion must of necessity meet with a denial (Code Civ. Proc. § 784; Crook v. Crook, 12 N. Y. St. Rep. 663), except in a case falling within section 785, which this case is not. Appeal dismissed, with costs. All concur.

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Bluebook (online)

33 N.Y.S. 694, 12 Misc. 402, 67 N.Y. St. Rep. 595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/newkirk-v-hooker-nyctcompl-1895.

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