Seymour v. Judd (2 N.Y. 464, 1849)

Gardiner, J.

In this case the judgment was rendered by the justice on the 18th of November. The affidavit was not presented to the officer, nor the appeal allowed until the 12th of December, twenty-five days subsequent to the' entry of the judgment. In Ex parte Ostrander, (1 Denio, 680,) it was held that the allowance must be made within ten days, and that the failure to make the affidavit and obtain the allowance within that period, was ground sufficient to dismiss the appeal, and one against which the court, even if disposed, could not relieve. (2 R. S. 258, § 187.)1

It has been repeatedly held, that courts have no dispensing power, even in matters of practice, where the legislature have spoken. (Bleeker v. Wiseburn, 5 Wend. 136; 7 Paige’s R. 247; 9 id. 574 ; 6 How. 113; 4 Wend. R. 204.) The power will hardly be claimed in behalf of a judge at chambers. The substance of the statutory provisions is that a judge at chambers may direct a new trial if application is made within ten days after the judgment, and the proper affidavit presented. (§ 187.) He can no more enlarge the time than he can legislate in any other matter. Here twenty-five days had elapsed before the affidavit was presented. The allocatur was therefore a nullity. The justice was under no obligation to obey it. This was conceded on the argument. But a mandate for a new trial, granted by authoi ity of a statute, which the court tc whom it is addressed may disregard at pleasure, is a legal ab-, surdity. The question then is, had the common pleas jurisdie-' tion of the cause and the parties, which authorized them to proceed to a new trial, without the allocatur of the officer specially authorized by statute to grant it ?

If the preliminary proceedings are in the nature of process, to bring the matter before the court of common pleas, as suggested by Judge Bronson, in Van Deuzen v. Hayward, (17 Wend. 67,) it is clear that no jurisdiction was acquired of the person of the appellee. If in place of the service of process upon the appellee, we are to substitute the constructive notice, arising from the proceedings under the statute, its requirement must be followed in every essential particular. (1 Denio, 431.) This is the plain dictate of justice, as well as a fundamental principle of law. The 191st section accordingly declares, that “no appeal shall be valid, or have any effect, unless the party appealing shall serve the affidavit, and allowance of appeal, deliver a bond, &c. as hereinbefore directed.” The 194th section provides, “that the justice, within ten days after any appeal shall have been duly made, shall make a return, stating among other things, the time when the affidavit, allowance of appeal,