
    CHARLES W. DURANT, Jr., Respondent, v. WILLIAM P. ABENDROTH, Impleaded, &c., Appellant.
    
      Notice of appeal, service of—burden of proof of am equivalent—Extension of time to malee a case—effect of—estoppel and waiver.
    
    It was claimed by appellant that there had been a transaction which was the equivalent of service of notice of appeal. The averments in appellant’s affidavits as to this transaction were met and fully denied by respondent’s affidavits. Held, that the burden of proof was on the appellant, and his proof having been neutralized by that of the respondent, no transaction which was the equivalent of service of notice of appeal has been established.
    The extension of time to make a case does not, of itself, extend the time to appeal.
    
      Where both parties, the one in asking an extension of time to serve a case, and the other in granting it, acted on the supposition that an appeal had been taken, there is neither an estoppel against respondent’s claiming that notice of an appeal had not been served in time, nor a waiver by respondent of the omission to serve the notice in time.
    Before Sedgwick, Oh. J., Van Vokst and Freedman, JJ.
    
      Decided January 4, 1886.
    Appeal by defendant from a special term order, denying his motion to vacate and set aside the execution herein, and to stay all proceedings on the part of the plaintiff to enforce the judgment herein, until the hearing and decision of the general term on the case and exceptions on appeal herein.
    The motion was heard at special term before Judge Ingraham, who delivered the following opinion:
    “Ingraham, J.—The only question to be determined on this motion is whether or not an appeal has been taken from the judgment below within the time allowed bylaw. By section 1300 of the Code, an appeal must be taken by serving on the attorney for the adverse party and upon the clerk a written notice to the effect that the appellant appeals from the judgment or order, or from a specified part thereof.
    “No such notice was served within the thirty days from the service of notice of entry of judgment.
    “The only section of the Code authorizing the courts to supply defects in the proceedings necessary to perfect the appeal, is section 1303, which provides that where the appellant seasonably and in good faith serves a notice of appeal, either upon the clerk or the adverse party, but omits, through mistake or inadvertence, or excusable neglect to serve it upon the other, or to do any other act necessary to perfect the appeal, the court may, in its discretion, permit the omission to be supplied. The power granted by this section, however, is only where the notice of appeal has been served either upon the clerk or upon the adverse party within the time allowed by the Code, and in this case, as no notice of appeal was served within the thirty days after the notice of entry of judgment, no power is given by this section to permit the deponent to serve the notice.
    “ The only remaining question is, whether the consent of the plaintiff extending the time of the defendant to serve a proposed case and exceptions was a waiver of the notice of the entry of judgment or of the right to insist that no appeal has been taken within the time allowed.
    “It appears, however, in this case, that at the time the consent was given, the plaintiff’s attorney expressly refused to receive a notice of appeal, on the ground that the time in which to serve the notice had expired ; and having taken that position, it is difficult to see how they could have intended to waive the right which they expressly insisted upon by granting the stipulation.
    “ The case of Staats v. Garrett (21 Week. Dig. 39), cited by defendant, was very different from the case at bar. There the notice of appeal had been served and accepted by the respondent without objection, and the court held that the consent extending the time to make a case was a confession or admission, that the notice of appeal had been received in time, or at least a confession that the notice of entry of judgment was for some cause ineffectual. In this case, however, the plaintiff’s attorney had refused to receive the notice of appeal, refused to waive the default, and insisted that no appeal had been taken. Under such circumstances it cannot be held that there was any waiver.
    “ The failure to serve the notice of appeal in this case was evidently a mistake on the part of defendant’s attorneys or some one in their employ, and upon the facts shown, would justify the court in relieving the defendant from the effect of such mistake if it was in the power of the court.
    “ Section 784 of the Code provides that the court or a judge cannot allow either of those acts, viz.: c The commencement of an action or the taking of an appeal, to he done after the expiration of the time fixed by law for doing it,’ except in a case specified in the next section, which does not apply to the case at bar. The court has no power, therefore, to relieve the defendant from the effects of the failure to serve the notice of appeal within the time allowed.
    
      “ I have examined the questions presented on this motion without regard to the claim on the part of the plaintiff that the question has been passed upon by Judge O’Gorman, and having come to the conclusion that no appeal from the judgment has been taken, it is unnecessary to determine whether or not the questions were included within such decision.
    
      “ The motion must, therefore, be denied.”
    
      Arnoux, Bitch & Woodford, attorneys, and William H. Arnoux, of counsel for appellant,
    on the questions considered in the opinion, argued :—I. The notice of appeal was duly filed with the clerk of this court, because of the extension of the time to make a case given by plaintiff’s attorneys. Granting time to make a case was an extension of the time to serve a notice of appeal. The only object that a party has in making a case is to appeal. A case subserves no other purpose. Then to say you may make a case after your time to appeal has expired, is a mockery, a delusion and a snare. It invites a party to make large expenditures of time, labor and money, which are absolutely useless if this view prevails. This is the meaning of the consent according to that view : “I extend your time to serve the case, but I will refuse to accept it when served.” On the other hand, we contend that the meaning of such a consent is : “ I will accept the case if served within the extended time.” And that implies that the party will argue the appeal upon that case if it is correct, or that he will have it corrected, and then argue the appeal. No other meaning can honestly be given to such a consent, and that being the case, the notice of appeal was filed in time.
    
      II. The service of the proposed case on appeal on August 18, was a sufficient notice of appeal, and was duly served (Baker v. Scott, 2 Sup. Ct. [T. & C.] 606). Such a case conforms to the requirements of the Code for an appeal, which simply demands that it shall be in writing (Code Civ. Pros. § 1300).
    III. The extension of time to serve the case was either a waiver of any default, or an admission that the time to appeal had not expired. 1st. The service of a notice of appeal after the time had expired is a nullity. And when a paper is an absolute nullity, it is not necessary to return it. 2nd. We are in a similar situation, because the last extension was given after the notice of appeal had been filed with the clerk, to the knowledge of plaintiff’s attorneys. This motion was not made to the favor of the court, for we were well aware that the court had no power ex gratia to extend the time to appeal, but the motion was made strictissimi juris, and as such the defendant should have prevailed (See also Staats v. Garrett, 12 Weekly Dig. 39 ; S. C., on appeal, 97 N. Y. 630).
    
      Norwood & Coggeshall, attorneys, and Carlisle Nor-wood, of counsel for respondent,
    cited: Parsons v. Winne, 17 Week. Dig. 237; Whiting v. Townsend, 67 N. Y. 40 ; Cotes v. Smith, 29 How. Pr. 326 ; Humphrey v. Chamberlain, 11 Ib. 274 ; Whitney v. Townsend, 7 Hun, 233 ; Wait v. Allen, 22 N. Y. 321; Salls v. Butler, 27 How. Pr. 133 ; 27 N. Y. 638 ; Morris v. Morange, 26 How. Pr. 247; Waring v. Senior, 48 Ib. 226 ; Kelly v. Sheehan, 76 N. Y. 325.
   Per Curiam.

The ground of the motion was that an appeal was pending, the plaintiff having waived the right that there should be an undertaking given to secure the judgment. The plaintiff took the position that there was no appeal pending.

On the affidavits for defendant there was a claim, that there had been a transaction which was the equivalent of service of notice of appeal upon the attorneys for plaintiff. The affidavit as to this was that the affiant “duly tendered ” to one of defendant’s attorneys “a written notice of appeal in each of the above entitled cases ; he refused to accept the same, upon the ground that the time to appeal had expired.” Under the facts otherwise shown, it would be necessary perhaps to hold that there was no service, as the written notice was not left at the office. There is, however, no intention to decide so, inasmuch as the affidavit for plaintiff met and denied fully and particularly the averments that have been specified. It must be -held that the burden of proof that notice had been served was upon the defendant, and that the proof given for him, was neutralized by the evidence to the contrary. The result is that no notice of appeal had been served, and therefore there was no appeal.

It is argued that if no notice had been served upon the attorneys for plaintiff, yet as service of notice had been made upon the clerk of the court, the omission to serve might be cured under § 1303 of the Code of Civil Procedure. To enable the defendant to ask the benefit of this section, he must show that service upon the clerk was within the time allowed for such a proceeding. That service was on July 6, and two days after the time for appeal had passed. It is claimed, however, that the plaintiff' had waived an earner service or was estopped from claiming that there should have been an earlier service. This waiver or estoppel is placed upon a consent given by plaintiff’s attorney that defendant’s time to make and serve a case and exceptions be extended. The court at the end of the trial on June 1, had given defendants thirty days time to make a case, &c. Judgment was entered and notice of entry given on June 2. On June 22, the plaintiff’s attorney consented that defendant have until July 6, to make the case. On July 6, in the morning, there was a further extension of twenty days, and in the afternoon the notice was filed with the clerk. In the meantime, on that day, the plaintiff’s áttorney had expressly refused to disregard the omission to serve notice of appeal upon him.

Merely giving time to make a case is not in itself a recognition that an appeal is pending, or will be pending at some point within that time. At the trial, the court gave such a time, and also stayed proceedings. It was intended that there should be an appeal taken by the defendants in the usual way. An extension of that time by the court or the opposite party, would give the right described for what it might be worth, but would not relieve the party of his obligation to gain or perfect another right. Therefore, if there be anything in the defendant’s claim, it must be found in the circumstances of the extension. They must operate as a waiver or an estoppel in the particular case.

A marked feature of the present case is that neither attorney was conscious that the appeal had not been perfected. The plaintiff’s attorney had no active duty in respect of perfecting the appeal, and without examination, when he gave extension of time he took for granted that the other side had served notice of appeal. The defendant’s attorney supposed that the proper clerk had served the notice. Both sides placed the right to appeal upon the necessity of serving notice. Neither thought of the appeal as connected with the extension, or supposed that the extension would affect, or give, or recognize the right to appeal within a certain time. Neither side could have believed that a waiver was within the intention of either. Still less could there have been an equitable estoppel, for. the transaction amounts to the plaintiff’s saying, if you have perfected your appeal, as I suppose you have, and as you believe, then I extend the time to make a case. If this view be not correct, and there be some right in the defendant to have his proceeding validated because of inadvertent omission to serve the notice, the same right must be accorded to plaintiff’s position that he inadvertently considered that there was an appeal when he gave the extension, and the extension should be set aside on that ground.

And it would not be correct to say that the extension led to the trouble and expense of making the case, &c. The defendant was not compelled or induced to make the case. He had received a favor upon which he might or might not act, at his pleasure.

There being neither waiver nor estoppel, the order should be affirmed, with $10 costs, and disbursements to be taxed.  