Sobel v. Sobel

234 A.D. 98, 254 N.Y.S. 93, 1931 N.Y. App. Div. LEXIS 8301

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 18, 1931
• Status: Published

Opinion

Sherman, J.

After the time limited for the taking of an appeal from the final judgment had expired, defendant, who had theretofore served a timely notice of appeal from that judgment, moved for leave to amend that notice of appeal nunc pro tunc, by inserting therein the statement that the appellant intended to bring up for review an intermediate order which had denied, more than one year theretofore, his motion for judgment on the pleadings. The learned Special Term has allowed this amendment under sections 580, 105 and 107 of the Civil Practice Act.

The court was without power to exercise this discretion (Civ. Prac. Act, §§ 99, 612), more than thirty days having elapsed after service of the final judgment upon appellant’s attorney. (Piper v. Van Buren, 27 Hun, 384; Pollak v. Port Morris Bank, 257 N. Y. 287.)

The order appealed from should be reversed, with ten dollars costs and disbursements to appellant, and the motion denied.

Finch, P. J., Merrell and McAvoy, JJ., concur; Martin, J., dissents.

Order reversed, with ten dollars costs and disbursements, and motion denied.