Opinion
December 19, 1949.
In an action for a separation, order denying appellant's motion to compel the respondent to accept appellant's notice of appeal from the judgment, affirmed, without costs. Under section 578-a of the Civil Practice Act, the first significant time to determine is the time of expiration of the right to appeal by the party seeking a ten-day extension. The appellant's time within which to appeal started running on January 18th, with the entry of judgment ( People ex rel. Manhattan Stor. Warehouse Co. v. Lilly, 299 N.Y. 281), and expired on February 17th. Respondent served his notice of appeal thereafter. Appellant served her notice of appeal still later, but within ten days of the service of respondent's notice of appeal. A party, bound by automatic entry of the judgment, does not extend his time to appeal by mailing a copy of the judgment and notice of entry to his adversary. Carswell, Acting P.J., Johnston, Adel, Wenzel and MacCrate, JJ., concur.