Salles v. Butler. WRIGHT, J. The statute prescribes the manner and the time in which an appeal may be taken to the general term, from a judgment. It is to be made by the service of a notice, in writing, on the adverse party, and on the clerk with whom the judgment appealed from is entered, stating the appeal from the same, or some special part thereof. (Code, § 327.) And the appeal must be taken within thirty days after written notice of the judgment shall have been given to the party appealing. (Code, § 332.) In this case written notice of the judgment was given to the defendants, on the 9th October, 1862, and no steps were taken to appeal from the judgment, for fifty-eight days thereafter. On the 6th December, 1862, the notice of appeal prescribed by the statute was served on the plaintiff's attorney, who immediately returned the same, with the objection that the time for appealing had expired. The judge, at special term, was, therefore, right in denying the motion for leave to bring an appeal, on the ground that the court was without power to grant it. The court had no power to extend the period, or allow an appeal when the time had been suffered to expire. When the statute fixes a period of time in which an appeal may be taken, the Supreme Court cannot lawfully extend the statute time. (Humphrey v. Chamberlain, 1 Kern., 274; Wart v. Van Allen, 22 N. Y., 309.) On the merits, then, the order was clearly right. But the question directly presented is whether an appeal will lie to this court, from the order. The Code allows appeals in three classes of orders: 1st. When the order affects a substantial right, and in effect determines the action and prevents a judgment from which an appeal might be taken; 2d. When, the order grants or refuses a new trial; and 3d, A final order affecting a substantial right made in a special proceeding upon a summary application in an action after judgment. (Code, § 11.) The order in question does not fall within either of these classes. It certainly cannot be claimed to fall within either of them, unless it be the latter. Denying leave to bring an appeal after the statute period for appealing has expired, is not Adams v. Fox. "a final order upon a summary application in an action after Ordered accordingly. 27 640 170 2125 ADAMS v. Fox, Executor, &c., et al. After notice of appeal is served and the proper undertaking perfected, this court is so far possessed of the cause as to be competent to make any necessary order; e. g., to dismiss the appeal; although the return of the subordinate court has not been filed. From an order for judgment on demurrer, unless the plaintiff should amend, no appeal lies. The case cannot be reviewed until final judgment has been entered. MOTION to dismiss appeal. The defendant, P. G. Fox, demurred to the complaint. The judge at the special term held the demurrer not well taken, and gave judgment for the plaintiff, with leave to the defendant to withdraw the demurrer and answer. On appeal to the general term, the order was reversed, and judgment on the demurrer was given for the defendant, with leave to the plaintiff to amend the complaint. The plaintiff appealed here from this order, no judgment in the action having been entered, so far as appeared. The papers on which the motion to dismiss was made were the case made on the appeal from the special to the general term, the order of the general term and the notice of appeal to this court. John K. Porter, for the motion. H. C. Adams, contra. Adams v. Fox. DENIO, Ch. J. It is objected that this motion cannot be entertained, because the return has not been filed, and it is urged that until this is done, this court is not possessed of the case. But we think that when a notice of appeal has been served, and the proper undertaking perfected, the case is so far removed from the subordinate court, that we can entertain any application, which the case, in its then condition, may render necessary. Our general rules are based upon that idea, for they allow an order to dismiss an appeal for a default in filing the return. The appeal which was attempted to be made in this case was premature. The determination of the demurrer, no doubt, entitled the defendant to judgment, unless the plaintiff should amend; but until final judgment was entered, the case was not in a condition to be reviewed here. The appeal must, therefore, be dismissed. Ordered accordingly. REMAINING CASES IN NEXT VOLUME. 81 SMITH.-VOL. XIII. by legal rules of evidence, but to 2. The award is equivalent to a ASSIGNMENT FOR CREDI- See FRAUDULENT CONVEYANCE. ATTACHMENT 1. One sued for seizing goods un- der an attachment may defend by 2. In the affidavit to procure the 3. Whether the plaintiff in the ac- id |