
    Peter Hamilton, Appellant, v. Maurice B. Mendham, Respondent.
    
      Appeal—time cannot be extended.
    
    Motion by the defendant to dismiss an appeal by the plaintiff.
   Per Curiam:

This action was brought in the City Court to recover damages for a personal injury. On motion that court granted an order allowing the plaintiff to amend the complaint. The defendant appealed from that order to the Appellate Term, where the order was modified, requiring as a condition for amending the complaint that the plaintiff should pay all taxable costs to the date of the motion to amend. A copy of this order of the Appellate Term was served on the 17th of October, 1911, whereon, upon application of the plaintiff, the presiding justice granted an order allowing an appeal to this court from the order of the Appellate Term. The order allowing such appeal was granted on the 22d of December, 1911, and the defendant, on the 2d of January, 1912, served a copy of this order upon the plaintiff’s attorney. On the 26th of January, 1912, the plaintiff served a notice of appeal in pursuance of the order allowing the appeal. That notice of appeal was returned to the plaintiff’s attorney upon the ground that it was not taken within the time allowed by the Code. Whereupon the defendant made this motion to dismiss the appeal. Section 3191 of the Code of Civil Procedure provides for an appeal to the Appellate Division of the Supreme Court in the First Department from a judgment or order of the Appellate Term; and section 3193 provides that an appeal authorized by section 3191 must be taken within twenty days after the service of a copy of the order allowing such appeal and a written notice of the date of the entry thereof. As the order allowing the appeal was served on the 2d of January, 1912, the time within which the notice of appeal had to be served expired on the 22d of January, 1912; and as the notice of appeal was not served within the time provided by section 3191 of the Code, it was too late. The court has no power to extend the time to allow an appeal or to open a default in serving the notice of appeal within the time allowed by the Code. The motion, therefore, must be granted and «the appeal dismissed, with ten dollars costs. Present—Ingraham, P. J., McLaughlin, Laughlin, Clarke and Miller, JJ. Motion granted, with ten dollars costs.  