
    ANNIE LAVELLE, Plaintiff, v. PATRICK SKELLY, Defendant.
    
      Notice of appeal— the court cannot, hy amending it, allow an appeal to he taken from a judgment after the time so to do has expired.
    
    Upon the trial of this action the complaint was dismissed and a verdict directed in favor of the defendant; and a motion for a new trial, made upon the judge’s minutes, was denied. The plaintiff appealed from the order denying the motion for a new trial, hut not from the judgment. Thereafter, and after the time to appeal from the judgment had expired, upon discovering that the questions he sought to review could not he considered upon the appeal from the order, he applied for leave to amend this notice of appeal hy inserting therein a notice of an appeal from the judgment as well as from the order.
    
      Held, that, as the time to appeal from the judgment had expired, the court had no power to grant the application.
    Motion for leave to amend a notice of appeal.
    
      E. D. Culver, for the motion.
    
      A. Mathews, opposed.
   Pee Cueiam :

On the trial of this action and at the close of the evidence the complaint was dismissed by the court, and a verdidt was directed by it. A motion was thereupon made on the part of the plaintiff for a new trial on the judge’s minutes, which motion was entertained by -the court and denied. The plaintiff then, in due time, served notice of appeal from the order denying the new trial but did not appeal from the judgment. He now asks leave to amend the notice of appeal from the order by inserting therein notice of appeal from the judgment also; and the question presented is, whether the court has power to grant such a motion.

The time for appeal from the judgment has long since expired, but it appears from the affidavits that it was supposed by the appellant’s attorney at the time of bringing the appeal from the order, that all of the questions that could be presented on an appeal from the judgment would be brought up on the appeal from such order, but he has now ascertained that the appeal from the order will not bring the material questions on the trial before this court for review. Assuming for the purposes of this motion that to be so, we are strongly of opinion that if in our power the motion ought to be granted, as otherwise the appellant will fail to be heard in an effort to review the rulings of the court below.

The Code of Civil Procedure (§ 184) declares that the court, or a judge thereof, is not authorized to extend the time fixed by law * * * to take an appeal after the expiration of the time fixed by law for doing it, except in a case where a party entitled to appeal from a judgment or order dies before the expiration of the time within which the appeal may be taken, in which case the court may, on motion, allow the appeal to be taken by the personal representative of the decedent at any time within four months after his death. It is clear from these provisions that the court could allow no appeal from the judgment to be taken as an original proceeding, and the only question is whether the power to amend a notice of appeal from an order can be exercised so as to allow a party to appeal, as of the time of its service, also from the judgment.

"We have looked into this question with care and are of opinion that the court has no authority either to amend the notice of appeal by changing it to an appeal from the judgment, or to add to the appeal from the order an appeal also from the judgment. It would be, in either case, a new appeal bringing up a new record, for the appeal frCm the judgment would of necessity call for a new return, and, as appears from the papers, of the judgment entered up subsequently to the time when the appeal from the order was in fact taken, we think the question is disposed of by the provision of the Code already referred to as well as by authority.

The motion should be denied, without costs.

Present — Davis, P. J., Brady and Daniels, JJ.

Motion to amend notice of appeal denied, without costs.  