The defendants demurred to the complaint which was overruled, but on appeal the same was reversed and demurrer sustained, with leave to plaintiff to serve an amended complaint. (Vose v. Conkling, 153 App. Div. 40.) Plaintiff’s attorney supposed that if he did not amend and final judgment were entered, he could appeal direct to the Court of Appeals. This was the course adopted. In doing this he did not intend to appeal to this court and there never has been any pretense or claim made that he did. Subsequently, a motion was made to dismiss the appeal to the Court of Appeals on the ground that that court did not have jurisdiction. The attorney then for the first time ascertained that in order to appeal to the Court of *206Appeals he would first have to appeal to the Appellate Division, and it was then that he made his application which resulted in the order here appealed from to amend his notice of appeal by striking out the words “to the Court of Appeals” and insertingin place thereof “ to the Appellate Division of the Supreme Court in the First Department.” The time, however, within which an appeal could have been taken to the Appellate Division had by express provision of the statute expired. (See Code Civ. Proc. § 1351.) Nevertheless, an order was made permitting the amendment, and it is sought to sustain the same by virtue of the provisions of section 1303 of the Code of Civil Procedure. This section, in substance, provides that where an appellant “ seasonably and in good faith serves the notice .of appeal,” but omits “ through mistake, inadvertence, or excusable neglect ” to perfect the appeal, then the court in or to which the appeal is taken may, in its discretion, permit the omission to be supplied.
Here an appeal was not seasonably and in good faith taken from the judgment to the Appellate Division; on the contrary, it was taken and intended to be taken solely to the Court of Appeals. An appeal was never intended to be taken to the Appellate Division until after the time provided by statute within which such an appeal might be taken had expired. Under such circumstances to permit the notice of appeal to be amended is to nullify an express provision of the statute.
I am of the opinion, therefore, that the order appealed from should be reversed and the motion denied.
Scott, J., concurred.
Order affirmed, with ten dollars costs and disbursements.