
    Bailey v. Kincaid.
    
      (Supreme Court, General Term, Third Department.
    
    September 25, 1890.)
    Appeal—Requisites—Time op Taking.
    Laws N. Y. 1890, c. 450, § 7, amending Code Civil Proc. N. Y. § 1341, relating to appeals to the supreme court from inferior courts, and changing the limit of time within which such an appeal could be taken from 60 days to 30 days, operated, as to a case in which the time to appeal was not then exhausted, from the date of its passage, so that notice of such an appeal served more than 30 days after the passage of the amendment, although less than 60 days after the time to appeal began to run, under the former law, was too late.
    Motion to dismiss appeal.
    Action by Franklin Bailey against Mary A. Kincaid, brought in the county court in which defendant had judgment. Under the then existing provision of Code Civil Proc. N. Y. § 1841, that an appeal to the supreme court “must be taken within 60 days after service upon the attorney for the appellant of a. copy of the judgment and notice of the entry thereof,” the time for plaintiff to appeal began to run May 6, 1890. On May 26, 1890, that section' was amended so as to read that such an appeal “must be taken within 30 days after service upon the attorney for the appellant of a copy of the judgment and written notice of the entry thereof.” Laws N. Y. 1890, c. 450, § 7, p. 816. Notice of appeal by plaintiff was served June 30, 1890. Defendant, moved to dismiss the appeal.
    Argued before Learned, P. J., and Landon and Mayham, JJ.
    
      A. D. Arnold, for appellant. D. J. Sullivan, for respondent.
   Landon, J.

The limitation of the right to appeal began May 6, 1890, and under section 1341, Code Civil Proc., as then in force, would continue for 60' days. May 26, 1890, the section was amended by striking out 60 days and inserting 30. The notice of appeal was served June 30, 1890, more than 30 days from May 6, 1890, but less than 60 days; also more than 30 days after the amendment took effect. The right to appeal is not a vested right. Whether a party may appeal, and, if so, under what limitation as to time, are matters of legislative control. Butterfield v. Rudde, 58 N. Y. 489; Ryan v. Waule, 63 N. Y. 57. Upon and after the amendment of the section, the limitation was defined by the section as amended. Moore v. Mausert, 49 N. Y. 332; People v. Board, 84 N. Y. 610. It is undoubtedly the rule that amendments to statutes should not be construed to have a retrospective effect unless the intention to give-them1 that effect is plain. In re Miller, 110 N. Y. 216, 223,18 N. E. Rep. 139. Giving due effect to that rule, the 30-days limitation would not begin to run before the amendment was passed. but would begin with the date of its passage. Such was the construction given by the supreme court of the United States to a new statute of limitations upon causes of action already accrued. Sohn v. Waterson, 17 Wall. 596. This seems to be reasonable. The repealed portion of the statute is no longer the law, and the amended portion is the present law. In the absence of any vested right, we must give the amendment effect from the date it began to operate. The time to appeal was not exhausted under the old law, and therefore upon its repeal no limitation existed except under the new law; that did not begin to operate until it took effect, and its operation continued 30 days. Williamson v. Field, 2 Sandf. Ch. 533, held that the provision of the Revised Statutes, prescribing a limitation of 10 years to suits of exclusive equitable cognizance, does not apply to a right which was vested and perfect before those statutes took effect. It was held that the peculiar language of the Revised Statutes was limited to rights of action thereafter accruing. In Goillotel v. City of New York, 87 N. Y. 441, the terms of the statute as amended were held to reserve existing limitations as to existing causes of action. But as the appellant did not serve the notice of appeal until more than 30 days after the amendment took effect, he was still too late. Motion granted, but without costs. All concur.  