(dissenting) A consolidated tax certiorari proceeding to review assessments on the relator’s real property resulted in a decision by the Special Term on May 14,1947, reducing the assessments complained of but in the exercise of the court’s discretion (Tax Law, § 294) denying costs to the relator.
On July 7,1947, relator’s attorneys served on the corporation counsel a proposed order with notice of settlement for July 9, 1947. On July 17th a notation appeared in the New York Law Journal to the effect that an order in this proceeding had been signed by the court. The only modification made in the order upon the settlement thereof was the striking out of the provision for costs to relator. As signed the order recited the following: “ Now, on filing the decision of the Court herein and on motion of Sincerbeaux & Schrewsbury, the attorneys for the relator herein, it is * #
A representative of the office of relator’s attorneys, after observing the notice in the Law Journal, visited the office of the County Clerk of New York County on July 17th, examined the order as signed and entered and made copies thereof. As relator’s attorneys had paid the fee of $3 required by section 1557-a of the Civil Practice Act at the time of the filing of the writs, no further payment of fees was necessary when this; order was entered.
*63Thereafter on August 18, 1947, relator’s attorneys served a notice of appeal from the final order “ upon the ground of inadequacy.” Presumably the claim of inadequacy related to the failure of the Special Term to grant greater reductions in the assessed valuations of relator’s property. The notice of appeal was returned by the corporation counsel, on August 19, 1947, because it had not been served within thirty days from the date of the entry of the order. Relator’s attorneys then moved for an order compelling the corporation counsel to accept the notice of appeal. Prom the order denying that motion, this appeal is taken.
The Special Term correctly decided that the notice of appeal had been served too late. Pertinent statutes bearing upon the facts are sections 612 and 1557-a of the Civil Practice Act. Section 612, which provides for limitation of time to appeal, reads as follows: ‘ ‘ An appeal to the appellate division of the supreme court, except as otherwise provided by statute, must be taken within thirty days after service upon the attorney for the appellant of a copy of the judgment or order appealed from and a written notice of the entry thereof except that the party entering the judgment or order, or serving the notice of the entry thereof, shall not be entitled to further notice to limit his time to appeal.” (Italics ours.) Concededly the final order submitted by relator’s attorneys was filed and entered in the office of the county clerk on July 16, 1947. , Relator’s attorneys were aware of that fact on July 17th. The notice of appeal was served thirty-three days after the entry of the order made upon motion of the relator.
The portion of section 612 reading “ except that the party entering the judgment or order, or serving the notice of the entry thereof, shall not be entitled to further notice to limit his time to appeal ” was added by chapter 372 of the Laws of 1921. It was inserted for the obvious reason that a party who causes to be entered a judgment or order is presumed to have knowledge of the contents thereof. When the order which he submits is signed and entered, he may ascertain its exact contents by examining it as entered in the county clerk’s office, precisely what relator’s attorneys did here. The purpose of the amendment to section 612 effected by chapter 372 of the Laws of 1921, was clearly indicated by this court in an opinion by Dowling, J. (later Presiding Justice) in Naftal v. Jarvis (203 App. Div. 75, 76-77) as follows: “ The exception made is evidently for the purpose of ending the seeming anomaly under the Code that a party entering a judgment should be required to be served with *64a copy thereof by his adversary before his time to appeal began to run from a judgment which he himself had entered.
“ Under these provisions of the Civil Practice Act the following procedure is indicated:
“(1) The party entering a judgment must serve a copy thereof, with notice of entry, upon his adversary, to start the latter’s time to appeal running.
“(2) The party entering a judgment thereby starts his own time to appeal running, and no further notice to him is required to effect the same.
“(3) If the party entering the judgment should fail to give notice of entry thereof, ,and the other party for any reason should himself serve upon his adversary such notice of entry, the date of such service will start running the time to appeal of the party serving the notice.
“ This construction of § 612 of the Civil Practice Act assimilates its provisions to the corresponding terms of the Surrogate’s Court Act (§ 293) regulating appeals.
“ In the present case, as plaintiff’s attorney did not serve his notice of appeal until thirty-one days after he had entered judgment, his time to appeal had expired, and defendant’s attorney should not now be compelled to accept the same.”
The rule laid down in Naftal v. Jarvis (supra) was approved by the Second Department in Corporation of Scholes v. Ficke Warehouses, Inc. (204 App. Div. 329). Though a ruling in People ex rel. New York Towers v. Chambers (191 Misc. 638) is to the contrary, the decision in People ex rel. Textile Realty Corp. v. Chambers (191 Misc. 288) parallels the view of the Special Term Justice in the present case.
The case of Moore & Co. v. Heymann (207 App. Div. 416) upon which appellant so heavily relies, is not controlling. The facts there are wholly at variance with what occurred here. There plaintiff’s attorney having secured a favorable decision from the Special Term, served a proposed form of order with notice of settlement. Defendant’s attorney thereupon submitted a proposed counter order. The court signed the defendant’s proposed form of order but the order recited that it was made on plaintiff’s motion, as was the fact. Plaintiff’s attorney thereupon served the order upon defendant’s attorney with notice of entry thereof. The defendant’s attorney thereafter duly served a notice of appeal within thirty days after the receipt of the order with such notice of entry. In the circumstances the court properly held that defendant’s time to appeal began to run when it was served by plaintiff’s attorney with a copy of the order and notice of entry thereof.
*65In the year 1921, when section 612 of the Civil Practice Act was amended to read as it presently does, a fee of not less than $1.10 was required to be paid to the county clerk for entering a final order or judgment pursuant to section 1557 of the Civil Practice Act (as renumbered by L. 1921, ch. 199, § 14; formerly § 1519 [see L. 1920, ch. 925]). In the year 1947, the statutory provisions with respect to the payment of fees for the entry of a final order or judgment was eliminated. Section 1557-a (added by L. 1947,"ch. 592, in effect May 1, repealing former § 1557-a) now requires that in the city of New York a fee of $3 be paid for the assignment of an index number to any action or proceeding and that “ No further fee shall be charged by the county clerk who has assigned an index number, for the filing, entering, indexing, recording or docketing, as required by statute, of any and all papers in the action or proceeding, or preliminary thereto or supplementary to judgment * * * ”.
The relator maintains that the portion of section 612 of the Civil Practice Act which provides ‘ ‘ that the party entering the judgment or order * * * shall not be entitled to further notice to limit his time to appeal ”, contemplated an affirmative or overt act, such as the paying of the county clerk’s fee for the entering of a final order or judgment as was required when section 612 was enacted in its present form. Eelator further argues that since the final order herein was entered without the payment of any fee other than the fee of $3 for the assignment of an index number to the proceeding as provided by section 1557-a of the Civil Practice Act, there was or could be no affirmative act on relator’s part in entering the final order.
We do not agree with the relator’s contention. The amendment to section 1557-a of the Civil Practice Act was not designed to increase the time for appeal for a party at whose instance a final order or judgment is entered. By paying the clerk’s fee for the assignment of an index number the attorneys for relator must have known that on a decision in favor of relator a final order submitted by them for signature would be automatically entered by the county clerk. Their act set in motion the machinery for the entry of the final order which would start running the time to appeal.
The right to appeal is not a natural or inherent right but is a matter of favor or privilege. It rests upon statute, and may be limited or taken away by the Legislature. (Croveno v. Atlantic Ave. R. R. Co., 150 N. Y. 225; People ex rel. Crane v. Hahlo, 228 N. Y. 309, 317). By statute “ A court or a judge is not authorized to extend the time fixed by law within which to *66* * * take an appeal * * (Civ. Prac. Act, § 99.) Nor may the court allow an appeal to be taken after the expiration of such time. (Pollak v. Port Morris Bank, 257 N. Y. 287; Matter of Westberg, 279 N. Y. 316; Erasmi v. Pan American Trust Co., 267 App. Div. 164.) This limitation is binding upon the courts no matter how meritorious the excuse for failure to appeal in due time. (6 Carmody on New York Pleading and Practice, § 122, p. 105.)
We think that the Special Term correctly decided that the entry of the final order here was procured by relator and that its time to appeal from such order began to run from the date of the entry thereof.
For the foregoing reasons I dissent and vote to affirm the order.
Peck, P. J. and Callahan, J., concur with Dore, J.; Cohn, J., dissents in opinion in which Glennon, J., concurs.
Order reversed, with $20 costs and disbursements to the appellant and the motion granted. Settle order on notice. [See post, p. 877.]