
    JORDAN W. HYDE, Respondent, v. H. O. HARKNESS, Appellant.
    Practice — Motion por a New Tbial — Appeal.—An appeal from an order granting, or refusing a new trial must be taken witliin thirty days from the time the order is made and filed with the clerk.
    Idem — Statement.—A statement on a motion for a new trial can only become apart of the record by the certificate of the judge.or referee who tried the case.
    Appeal from the third judicial district, Oneida county.
    
      L. P. Higbee and J. B. McBride, for the appellant.
    
      Huston & Gray and F. E. Ensign, for the respondent.
   CLARK, J.,

delivered the opinion. Hollister, 0. J., concurred.

The appeal is from an order denying appellant’s motion for a new trial, and from the final judgment in the action.

It is claimed by tbe respondent that the appeal from the order denying a new trial was not taken within the time prescribed by statute; that the court, therefore, has no jurisdiction of said appeal, and that it must be dismissed. [Respondent also claims that the statement used on motion for a new trial must be stricken out on the ground that the same is not certified by the judge, therefore can not be used on motion for a new trial or on appeal from the final judgment. [Respondent further claims that the undertaking filed on appeal from the order denying a new trial, is insufficient, and does not comply with the requirements of the statute. Judgment was entered on the twenty-eighth day of July, 1875. On the tenth day of August, 1875, another judgment was entered herein in lieu of the first judgment modifying the same. On the tenth day of August, 1875, an order was made overruling the appellant’s motion, in the court below, for a new trial. On the thirtieth day of September, 1875, the appellant filed his notice of appeal to this court from said judgments, and the order overruling his motion for a new trial.

Section 437, of the civil practice act, provides as follows, to wit: “An appeal may be taken from an order granting or refusing a new trial within thirty days after the order is made and filed with the clerk.” The appeal was not made in time, but twenty-one days after the time limited by statute had expired.

The transcript shows that the statement used on motion for a new trial was filed on the tenth day of August, 1875, and that it had been agreed to by counsel for the respective parties, as appears by their certificate thereto attached. The third subdivision of section 211 of the civil practice act, among other things provides as follows, to wit: “It is the duty of the judge or referee, in settling the statement, to strike out of it all redundant and useless matter, and to make the statement truly represent the case, notwithstanding the assent of the parties to such redundant and useless matter, or to any inaccurate statement. When settled, the statement shall be signed by the judge or referee, with his certificate to the effect that the same is allowed, and shall then be filed with the clerk.” The statement has not been certified by tbe judge wbo beard tbe cause, in tbe manner above provided, or at all, and bence ought to bave been disregarded on tbe bearing of tbe motion for a new-trial. Tbe statute contemplates tbat a statement can only become a part of tbe record by tbe certificate of tbe judge or referee.

Section 448 of tbe civil practice act provides tbat any statement used on motion for a new trial may be used on appeal from a final judgment, equally as on appeal from tbe order granting or refusing a new trial. Tbe statement ought not to bave been beard or used on tbe bearing of tbe motion for a new trial, by reason of tbe objections thereto above stated, and as tbe same still exist, it can not be used on tbe appeal from tbe final judgment.

It appears from tbe order denying tbe motion for a new trial, tbat tbe court made tbe following order, to wit: “ Tbat tbe defendant” (now appellant) “shall bave until tbe first day of October next to appeal from tbe judgment so modified, and also from tbe order overruling tbe motion for a new trial.” Tbe court can not extend tbe time provided by statute within which to appeal from an order granting or refusing a new trial. An appeal from an order in such case must be taken within thirty days from tbe time tbe order was made, bence tbe order above cited was error and of no effect.

Tbe appeal from tbe order overruling tbe motion for a new trial is dismissed and tbe statement used on tbe motion for a new trial stricken from tbe record in this action.

On Petition for Prehearing.

We bave examined this petition and considered tbe grounds therein stated and tbe authorities cited by tbe counsel for petitioner, but fail to discover any good reason why we should depart from tbe doctrine laid down by this court in tbe opinion now on file in this action, on motion to dismiss tbe appeal from tbe order overruling tbe motion for a new trial, and to strike out statement used on tbe bearing of tbe motion for a new trial.

Tbe rehearing is denied.  