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CHAPTER III.

APPEALS TO THE SUPREME COURT FROM AN INFERIOR COURT.

SECTION 293. Appeal, in what cases.

294. Security to be given as on appeal to courts of appeals,
295. Where heard.
296. Papers, by whom furnished.

$ 293. An appeal may be taken to the supreme court, from the judgment rendered by a county court, or by the mayors' court of either of the cities of Albany, Hudson, Troy and Rochester, or by the recorders' court of either of the cities of Buffalo and Utica.

$ 294. Security must be given upon such appeal, in the same manner, and to the same extent, as upon an appeal to the court of appeals.

295. Appeals in the supreme court shall be heard at a general term, either in the district embracing the county where the judgment or order appealed from was entered, or in a county adjoining that county, except that where the judgment or order was entered in the city and county of New York, the appeal shall be heard in the first district.

By the existing law, an appeal can only be heard in the county where the venue is laid, or in an adjoining county. The same act requires a general term of the supreme court to be held in every county, or an adjoining county, every year.

These provisions are inapplicable to the organization of the courts, and the times and places of holding them, as proposed by us in the first part of this work. The times when and counties in which the general terms are to be held in each district are by our plan to be appointed by the Governor.

It is not-less important to the parties in litigation and the public, that justice should be administered speedily than to have it “ brought home to every man's door.” Parties would often choose to go a little further for it, or at least have their counsel go, when there is only a question of law to be settled on appeal, than to wait too long to have justice come to the door. We therefore propose to allow appeals to be heard anywhere in the district, or in a county adjoining that in which the cause was tried, though in another district.

§ 296. When the appeal is heard in a county other

an that where the judgment roll is filed, the judgment upon the appeal shall be certified to the clerk with whom the roll is filed, to be there entered and docketed.

CHAPTER IV.

APPEALS IN THE SUPREME COURT, AND THE SUPERIOR

COURT AND COURT OF COMMON PLEAS OF THE CITY OF NEW-YORK, FROM A SINGLE JUDGE, TO THE GENERAL TERM.

SECTION 297. Appeals allowed from circuits and special terms to same court in gen

eral term; where heard, and security required.
298. Decision on facts at general lerm final.
299. Orders in certain cases may b appealed from.
300. Orders at chambers to be ente ed before appeal.

§ 297. In the supreme court, the superior court of the city of New York, and the couit of common pleas for the city and county of New York, an appeal, upon either the law or the fact, may be taken :o the general term, from a judgment given by a single judge of the same court. Security must be given upon such appeal, in the same mannrr as upon an appeal to the court of appeals. In the supreme court, the appeal shall be heard in the same manner as if it were an appeal from an inferior court.

$ 298. Upon such appeal, the decision upon the facts shall be final.

§ 299. An appeal may in like manner, and within the same time, be taken from an order made by a single judge of the same court, and may be thereupon reviewed, in the following cases :

1. When the order grants or refuses a provisional remedy.

2. When it involves the merit of the action, or some part thereof.

But no appeal, under this section, shall be taken, unless a judge of the supreme court certify that in his opinion, it is proper, that the question arising on the appeal should be decided before the judgment.

$ 300. The last section shall include an order made out of court upon notice; but in such case, the order must be first entered with the clerk. And for the purpose of an appeal, any party, affected by such order, may require it to be entered with the clerk, and it shall be entered accordingly.

CHAPTER V.

APPEAL TO THE SUPERIOR COURT OF THE CITY OF NEW-YORK,

OR TO A COUNTY COURT, FROM AN INFERIOR COURT.

SECTION 301. Existing laws for review of judgmen's repealed, and this chap

ter substituted.
302. Judgments to be reviewed by soperior court, and by county

courts.
303. Appellant to make affidavit.
304, Copy affidavit and notice of appeal to be served.
305. Securi y to stay execution.
306. To be approved by julge or court below.
307. Order to slay, and security how served.
308. In case of death of justice, to be filed.
309. Counter affidavits allowed.
3.0. Appeal may be heard on affidavits
311. Return when and how made, and compelled.
312. In case justice be out of ofice.
313. Amended return may be requirect.
314. If justice be dead witnesses to be examined.
315. Hearing, upon return.
316. Copies of papers not required on hearing.
317. Judgment how given.
318. Judgment roll.
319, If new trial ordered, reason to be given.
320. New trial where had.
321. Costs to whom awarded.
322. Restitution may be ordered.
(323. Costs set off in certain cases.
324. What costs allowed.

By the terms of the constitution, jurisdiction is expressly given to the county courts in cases arising in justices' coorts. The existing system of appeals from justices' judgments, when over twenty.five dollars, and of certiorari when under that amount, is very defective as a system of review, and very expensive in practice. The amount of recovery is by no means a criterion of the amount involved in the controversy, or of the importance of the error complained of; as great injustice may arise by the failure to obtain a judgment over twenty-five dollars, in a good cause of action, for a large sum, as in a recovery for that amount, when

a less sum was due. Nor does there appear to be any well founded reason for affording a new trial, as the remedy in ona case, and a mere hearing on questions of law only in the other.

When the judgment is for an amount over twenty-five dollars, a new trial is now granted on an application by one party without notice to the other; and the trial must bave been conducted with uncommon ability, if there can be no ground found by a skilful practitioner, on which to obtain an allowance of an appeal. Indeed the instances of refusing an appeal are very rare, and it has become almost a matter of course to grant it on the representation of the attorney. An allowance of an appeal is equivalent to an order for a new trial in the county court; a trial which, in the majority of cases, costs twice as much as the amount in controversy.

When parties have once submitted their differences to the decision of a court, a new trial ought never to be granted, unless it be made to appear that some material error by the court has occurred, by which the substantial rights of the party have been prejudiced; and before it is allowed, or the matter is considered, a notice to the opposite party, and an opportunity for a full and fair hearing on both sides, should be afforded. The system devised and recommended for adoption is based on on this principle.

It is proposed to abolish both the certiorari and appeal, in the form in which they now exist, and to substitute in all cases an appeal by an application to the appellate court for a new trial or reversal, founded on an affidavit, setting forth the grounds of the appeal. A copy of this affidavit is to be served on the adverse party, with notice of the application. On hearing both sides, if there is no discrepancy in the affidavits as to the matters complained of, the court orders a new trial, or reverses or affirms the judgment on the first hearing, as the case may require. In case of disagreement in the affidavits as to the material facts, it orders a return. The order and affidavits on both sides are sent to the court below, which makes a return; and on that, the matter is finally heard and determined.

This is a summary outline of the system, which is made ap. plicable to all the inferior courts; and it is confidently believed that it will afford a cheap, summary, and yet safe method of

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