11 N.Y.S. 386 | N.Y. Sup. Ct. | 1890
On the 27tli day of December, 1889, a judgment was entered in the municipal court of the city of Eochester, in favor of the appellant, for $9.55 damages, and $5 costs for rent. The time to appeal from the judgment of the municipal court would expire on the 16th day of January, 1890. On that day the defendant made a written stipulation extending the plaintiff’s time to appeal 25 days. The papers show that the purpose of the stipulation was to enable the parties to settle the controversy by arbitration, or otherwise. 27o settlement was had, and an appeal was taken by the plaintiff within the time limited by the stipulation. The defendant moved to dismiss the appeal on the ground that the notice was not served within the statutory time. The county court dismissed the appeal, and the plaintiff appealed to this court. Sections 3046, 3047, of the Code of Civil Procedure limit the time for appeal in a cause like this to 20 days from the entry of judgment. This limitation was primarily for the benefit of the parties affected by the judgment. The legislature imposed upon the parties desiring to appeal the duty of vigilance, and, unless he perfected an appeal within the statutory time, his right to review was lost. The learned counsel for the respondent cites several cases showing that the court has no power to extend the time to appeal; but he cites no case showing that it is not within the power of the parties to stipulate for an extension of time. It has frequently been held that a party may waive the right to insist that the appeal was not taken in time. Pearson v. Lovejoy, 53 Barb. 407; Stubbs v. Stubbs, 11 Wkly. Dig. 244; Pickersgill v. Read, 7 Hun, 636; Durant v. Abendroth, 53 N. Y. Super. Ct. 21. In Jacobs v. Morange, 1 Daly, 523, it was held that, “where the court has not jurisdiction of the subject-matter, the consent of parties will not confer it; but the consent that an appeal may be brought after the time has elapsed for bringing it is not liable to that objection. The appellate court having the general power to review judgments upon appeal, such a consent does not conier it, but it is a mere waiver of the right to insist that the time has passed for bringing the appeal. ” To the same effect is Struver v. Insurance Co., 9 Abb. Pr. 23, where it was held that giving admission of due service of notice of appeal is a waiver of the objection that it was not served within the time to appeal. It is a familiar rule that a party may waive a statutory, or even a constitutional, provision for his own benefit, and, having done so, he is concluded. In re Cooper, 93 N. Y. 507-512. In Staats v. Garrett, 21 Wkly. Dig. 39, a stipulation was given to the appellant of time to serve his case. Upon a motion to dismiss the appeal because not taken in time, it was held that an extension of time to serve the case was a waiver of the notice of entry of judgment, and that the appeal was well brought. This was affirmed in 98 N. Y. 630. In Townsend v. Dressing Co., 15 N. Y. 587, it was held that a stipulation made between the parties that no appeal should be taken from the decision of the general term was valid, and the appeal was dismissed on that ground. In Re New York, Lackawanna & W. R. Co., 98 N. Y. 453, the court say: “Parties, by their stipulations, may in many ways make the law for any legal proceeding to which they are parties, which not only binds them, but which the courts are bound to enforce. They may stipulate away statutory and even constitutional rights. They may stipulate shorter limitations of time for bringing actions for the breach of contracts than are prescribed by the statutes, such limitations being frequently found in insurance policies. They may stipulate that the decision of a court should be final, and thus waive the right of appeal; and all such stipulations not unreasonable, not against good morals or sound public policy, have been, and will be, enforced. And generally, all stipulations made by the parties for the government of their conduct, or the control of their rights, in the trial of a cause, or the conduct of a litigation, are enforced by the courts.” The learned county judge fell into the error of supposing that the cases which control his decision included stipulations made between parties. This was a misapprehension. In this case the parties wished time to see if they could
