
    HAMILTON v. MENDHAM.
    (Supreme Court, Appellate Division, First Department.
    February 9, 1912.)
    Appeal and Error (§ 356)—Time for Taking Appeal.
    Under Code Civ. Proc. § 3193, providing that appeals from orders of the Appellate Term shall be taken within 20. days after the service of a copy of the order allowing the appeal, with notice of its entry; if notice of appeal is not served until after 20 days, the appeal will be dismissed; the Appellate Division having no power to extend the time for service or to open the default.
    [Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1927; Dec. Dig. § 356.*]
    Appeal from Appellate Term.
    Action by Peter Hamilton against Maurice B. Mendham. From an order of the Appellate Term, modifying an order granting plaintiff leave to amend his complaint, he appeals by permission. On motion to dismiss appeal.
    Appeal dismissed.
    See, also, 129 N. Y. Supp. 53; 132 N. Y. Supp. 1131.
    
      ■ Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGH-LIN, CLARKE, and MILLER, JJ.
    Patrick J. O’Beirne, for appellant.
    Guggenheimer, Untermeyer & Marshall, for respondent.
    
      
      For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   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 plairitiff 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 3193 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 20 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 3193 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 $10 costs.  