
    Abraham Newkirk, Resp’t, v. Walter H. Hooker, Impleaded, etc., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed May 6, 1895.)
    
    Appeal — Appealable order.
    An order, denying a motion to compel the acceptance of a notice of appeal after the time to appeal has expired, is not appealable.
    Appeal from an order of the city court, affirming an order denying a motion to compel the plaintiff to accept notice of appeal from a certain order therefore made in the cause.
    
      Willis B. Dowd, for app’lt; Abraham King, and Charles K O' Conner, for resp’t.
   Bischoff, 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 extention 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 St. Rep. 663, except in a case falling within section 785, which this case is not Appeal dismissed, with costs.

All concur.  