
    Mary E. Bagley, App’lt, v. Adelia A. Jennings, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 23, 1890.)
    
    Appeal—Extension op time by stipulation.
    For the purpose of enabling the parties to settle the action a stipulation was entered into extending plaintiff’s time to appeal for twenty-five days. No settlement was made and the appeal was taken within the time speci0 fled in the stipulation. Held, that such stipulation was valid and binding on the parties thereto and that the appeal would not be dismissed on the ground that it was not taken in time.
    
      Appeal from an order of the county court of Monroe county?' dismissing an appeal.
    
      John F Dorothy, for app’lt; Horace McGuire, for resp’t.
   Corlett, J.

On the 27th day of December, 1889, a judgment, was entered in the municipal court of the city of Rochester in favor of the appellant for nine dollars and fifty-five cents damages and five dollars costs, for rent. The time to appeal from the-judgment of the municipal court would expire on the 16th day of January, 1890. On that day the defendant made a written, stipulation extending the plaintiff’s time to appeal twenty-five days. The papers show that the purpose of the stipulation was to enable the parties to settle the controversy by arbitration <5r otherwise. No settlement was had, and an appeal was taken by the plaintiff within the time limited by the stipulation. The defendant moved to dismiss the appeal on the ground that notice was not served within the statutory time. The county court dismissed the appeal and the plaintiff appealed to this court.

Sections 3046 and 3047 of the Code of Civil Procedure limit the time for appeal in a cause like this to twenty days from the entry of judgment. This limitation was primarily for the benefit of the parties affected by the judgment. The legislature imposed upon the parties desiring to appeal the duty of vigilance, and unless he perfected an appeal within the statutory time his right to review was lost.

The learned counsel for the respondent cites several cases showing that the court has no power to extend the time to appeal. But he cites no case showing that it is not within the power of the parties to stipulate for an extension of time. It has frequently been held that a party may waive the right to insist that the appeal was not taken in time. Pearson v. Lovejoy, 53 Barb., 407; Stubbs v. Stubbs, 11 Wk. Dig., 244; Pickersgill v. Read, 7 Hun, 636; Durant v. Abendroth, 21 Supr. Ct., 21.

In Jacobs v. Morange, 1 Daly, 523, it was held that “ where the court has not jurisdiction of the subject-matter the consent of parties will not confer it; but the consent that an appeal may be brought after the time has elapsed for bringing it is not liable to that objection. The appellate court having the general power to review judgments upon appeal, such a consent does not confer it, but it is a mere waiver of the right to insist that the time has passed for bringing the appeal.”

To the same effect is Struver v. Ocean Ins. Co., 9 Abb. Pr., 23, where it was held that giving admission of due service of notice of appeal is a waiver of the objection that it was not served within the time to appeal.

It is a familiar rule that a party may waive a statutory, or even a constitutional provision for his own benefit, and having done so, he is concluded. Matter of Application of Cooper, 93 N. Y., 507-512.

In Staats v. Garrett, 21 Wk. Dig., 39, a stipulation was given to the appellant of time to serve his case. Upon a motion to dismiss the appeal, because not taken in time, it was held that an extension of time to serve the case was a waiver of the notice of entry of judgment, and that the appeal was well brought. This was affirmed in 98 N. Y., 630.

In Townsend v. The Masterson, etc., Stone Dressing Co., 15 N. Y., 587, it was held that a stipulation made between the parties that no appeal should be taken from the decision of the general term was valid, and the appeal was dismissed on that ground.

In the Matter of the Petition of Lackawanna R. R. Co., appointing Commissioners etc, 98 1ST. Y, 453, the court say: “ Parties by their stipulations may in many ways make the law for any legal proceeding to which they are'parties, which not only binds them, but which the courts are bound to enforce. They may stipulate away statutory and even constitutional rights; they may stipulate shorter limitations of time for bringing actions for the breach of contracts than are prescribed by the statutes, such limitations being frequently found in insurance policies. They may stipulate that the decision of a court should be final, and thus waive the right of appeal, and all such stipulations not unreasonable, not against good morals or sound public policy, have been and will be enforced, and generally all stipulations made by the parties for the government of their conduct or the control of their rights in the trial of a cause, or the conduct of a litigation, are enforced by the courts.”

The learned county judge fell into the error of supposing that the causes which control his decision included stipulations made between parties. This was a misapprehension. In this case the parties wished time to see if they could stop further litigation by settlement, and it was stipulated to extend the right to appeal, so that in case no adjustment was effected no rights would be lost. This was neither against good morals or sound public policy; and when after that a party to the stipulation seeks to prevents its enforcement, the court will not listen to him.

The county court has full power and jurisdiction to hear and determine appeals on their merits, and while neither the court or a party, without the consent of the other, can extend the time to appeal prescribed by statute, yet where they stipulate an extension they simply determine between themselves the time when the controversy should be submitted to the appellate court, and the statute in no way abridges the power of the parties to extend the time by stipulation. The reasoning of all the cases sustain this view.

It follows that the order appealed from should be reversed

Dwight, P. J., and Macomber, J., concur.

Order reversed, with ten dollars costs and disbursements.  