People ex rel. New York City Omnibus Corp. v. Chambers

McGeehan, J.

Motion to direct respondents to accept service of the notice of cross appeal is denied. By the relator’s own act, as well as admission, the final order was entered on August 13, 1948. Under section 612 of the Civil Practice Act the relator’s time to appeal ran from that date. Since the cross appeal was served on September 16, 1948, it was beyond the thirty-day period allowed and, therefore, not timely., Section 578-a of the Civil Practice Act has no application inasmuch as the respondents’ notice of appeal was served after relator’s time to appeal had expired. Section 578-a of the Civil Practice Act specifically covers those situations “ where an appeal is taken within five days before the time when the time of the party upon whom the notice of appeal is served will expire ” and makes no specific mention of those instances where no time is left, the time to serve a notice of appeal having expired. While the purpose of the section was to extend the time of a party who had five days or less in which to take an appeal and having no time is certainly less than five days, yet the language of the section cannot be construed to be inconsistent with section 612 of the Civil Practice Act because judicial interpretation of section 578-a cannot modify or nullify the provisions of section 612. For this reason, section 578-a cannot be invoked in this instance.