
    William H. Rohr, Respondent, v. George W. Linch, as Receiver of the Second Avenue Railroad Company, Appellant.
    (Supreme Court, Appellate Term, First Department,
    October, 1912.)
    Appeal—settlement of case on — expiration of time to — City Court of city of New York.
    Where an order of the City Court of the city of New York, denying a new trial, and reciting that it was entered on motion of plaintiff’s attorney, was not served on the defendant, an order denying his motion to settle the ease on appeal will be reversed on the ground that his time to appeal from the order denying the new trial had not expired.
    Appeal by defendant from an order of the City Court of the city of ¡New York denying the defendant’s motion to settle his proposed case on appeal.
    Charles E. Chalmers, for appellant.
    Abraham ¡M¡. Pariser, for respondent.
   Guy, J.

Plaintiff recovered a verdict on February 29, 1912, on' which judgment was entered on March 2, 1912, and a copy of the judgment with notice of entry was duly served on the same day.

On March fourth, defendant entered and on March fourth or sixth he served a copy of the usual order denying his motion for a new trial, which recited that it was entered on motion of the plaintiff’s attorney. This order was never served upon defendant, but was only served by defendant upon plaintiff.

On March 30, 1912, .defendant served a notice of appeal from both judgment and order.

The time to serve a notice of appeal from the judgment ex pired on March twelfth (Code Civ. Pro., § 3190), but the time to appeal from the order denying a motion for a new trial hacl not expired, because that order was never served upon the defendant. Code Civ. Pro., § 3190; Bayliss N. Tr. & App. 173; Harnett v. Westcott, 16 N. Y. St. Repr. 810; Kolatch v. Wiltchik, N. Y. L. J. March 16, 1909.

Service by the loser upon the winner does not limit the former’s time to appeal. Kilmer v. Hathorn, 78 N. Y. 228, 231, 232; Smith v. Havens Relief Soc., 115 App. Div. 185, 187; McGruer v. Abbott, 47 id. 191, 193.

Order reversed and motion granted, with ten dollars costs and disbursements of the appeal.

Seabury and Bijur, JJ., concur.

Order reversed and motion granted.  