
    Abraham Newkirk, Respondent, v. Walter H. Hooker et al., Appellants.
    (New York Common Pleas
    General Term,
    May, 1895.)
    An order of the City Court of New York, denying a motion to require the adverse party to accept a notice of appeal, is not one affecting a substantial right, and no appeal lies therefrom to the Court of Common Pleas.
    Appeal from an order of the General Term of the City Court of New York, affirming an order made at Special Term denying defendants’ motion that plaintiff be required to accept notice of appeal from a certain order theretofore made in the cause.
    
      Abram Klvng and Chárles E. O’ Connor, for respondent.
    
      Willis B. Dowd, for appellants.
   Bischoee, J.

Consistently with the rules governing appeals from the City Court to this court, no review of this order is to be had here.

It does not affect a substantial right. Code Civ. Proc. § 3191, subd. 3.

An appeal from an order directing a party to accept notice of appeal may be heard by the ultimate court of review and the order reversed, should it appear that the direction below was in.effect an extension of the time to appeal, for this affects a substantial right (Clapp v. Hawley, 97 N. Y. 610), but the appeal is to be dismissed if the order accomplished merely the result of requiring the adverse party to accept the notice before the time to appeal had expired, and this because no right is infringed by the direction, and, in fact, no order is required. Thurber v. Chambers, 60 N. Y. 30.

So, necessarily, of an order denying the motion, for where the time to appeal has not expired a direction that the notice be accepted would be idle; the service itself accomplishes the required result; and, on the other hand, should the applicant have let the statutory period elapse, the motion must of necessity meet with a denial (Code Civ. Proc. § 784; Crook v. Crook, 12 N. Y. St. Repr. 663), except in a case falling within section 785, which this case is not.

Appeal dismissed, with costs.

Daly, Ch. J., and Pryor, J., concur.

Appeal dismissed, with costs.  