On judgments to deliver documents - Form of undertaking, When it can be made satisfactorily to appear to the court that since the execution of the undertaking the sureties have become insolvent, the court may, by rule or order, require the appellant to execute, file and serve a new undertaking as above; and in case of neglect to execute such undertaking within twenty days after the service of a copy of the rule or order requiring such new undertaking, the appeal may, on motion to the court, be dismissed, with costs. Code, § 335. c. On judgments to deliver documents. If the judgment appealed from directs the assignment or delivery of documents or personal property, the execution of the judgment shall not be stayed by appeal, unless the things required to be assigned or delivered be brought into court or placed in the custody of such officer or receiver as the court shall appoint, or unless an undertaking be entered into, on the part of the appellant, by at least two sureties, and in such amount as the court, or a judge thereof, or county judge shall direct, to the effect that the appellant will obey the order of the appellate court upon the appeal. Code, 336. Form of undertaking. (As in preceding form to the,* and continue :) And do also undertake, pursuant to the statute, in the sum of dollars, that he shall obey the order or judgment of the appellate court on such appeal. (Signatures.) d. On judgment to execute conveyance. If the judgment appealed from directs the execution of a conveyance or other instrument, the execution of the judgment shall not be stayed by the appeal, until the instrument shall have been executed and deposited with the clerk with whom the judgment is entered, to abide the judgment of the appellate court. Code, § 337. And not only must such instrument be executed and deposited, in order to stay the proceedings, but the undertaking mentioned in section 334 of the Code must also be given. Waring v. Ayres, 12 Abb. 112. e. On judgment directing sale or delivery of real property. If the judgment appealed from directs the sale or delivery of possession of real property, the execution of the same shall not be stayed unless a written undertaking be executed on the part of the appellant, with two sureties to the effect that during the possession of such property by the appellant he will not commit, Form of undertaking — On appeals from orders made in special proceedings, etc. or suffer to be committed, any waste thereon, and that, if the judgment be affirmed, he will pay the value of the use and occupation of the property, from the time of the appeal until the delivery of possession thereof, pursuant to the judgment, not exceeding a sum to be fixed by a judge of the court by which the judgment was rendered, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency. Code, § 338. Form of undertaking. (As in form preceding the last to the *, and continue:) And do also undertake, pursuant to the statute, in the further sum of dollars, that, during the possession of the said property by the said appellant, he will not commit, or suffer to be committed, any waste thereon, and that, if the said judgment be affirmed, the said appellant will pay the value of the use and occupation of the said property, from the time of the said appeal until the delivery of the possession thereof, pursuant to the judgment. (If damages have been awarded, or judgment has been rendered for a deficiency on a mortgage, add): And also in the further sum of dollars, that, if the said judgment, or any part thereof, be affirmed, the said appellant shall pay such amount as may be awarded against him on his appeal. (Signatures.) f. On appeals from orders made in special proceedings or in action after judgment. The provisions stated in the foregoing sub-sections, as to the security to be given upon appeals, and as to the stay of proceedings, are by the Code made applicable to appeals taken under subdivision 3 of section 11 of that instrument; or in other words, to appeals from orders made in special proceedings, or in an action after judgment. Code, § 343. g. Exceptions to general rule. Whenever an appeal is perfected as provided by the Code, §§ 335-338, it stays all further proceedings in the court below, upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action, and not affected by the judgment appealed from. Code, § 339. So, the court below may, in its discretion, dispense with or limit the security required by the Code, §§ 335–338, when the appellant is an executor, administrator, trustee, or other person acting in another's right; and may also limit such security to VOL. IV.-35 Service of undertakings. an amount not less than fifty thousand dollars, in the cases mentioned in sections 336-338 of the Code, where it would otherwise, according to those sections, exceed that sum. Code, § 339. An appeal is "perfected," within the meaning of this section of the Code, when the proper undertaking, with an affidavit of the sureties, has been executed, and notice of the appeal has been served on the adverse party and on the clerk with whom the judgment or order was entered. Thompson v. Blanchard, 2 N. Y. (2 Comst.) 561; S. C., 4 How. 210; 2 Code R. 138. Section 6. Service of undertakings. The undertakings on an appeal, as prescribed by the Code, may be in one instrument or several, at the option of the appellant; and a copy including the names and residence of the sureties must be served on the adverse party, with the notice of appeal, unless a deposit is made with the proper officer, as provided by section 334 of the Code, and notice thereof given. Code, § 340. It is requisite that such copy or notice be served with the notice of appeal. Service made afterward is void. Smith v. Heermance, 18 How. 261; New York Central Ins. Co. v. Safford, 10 id. 344; Cushman v. Martine, 6 Duer, 660; S. C., 13 How. 402. Section 7, Approval and justification of sureties. An undertaking upon an appeal is of no effect unless it be accompanied by the affidavit of the sureties that they are each worth double the amount specified therein. Code, § 341. In the case of a failure of the sureties to justify, the appeal itself becomes a nullity. Kelsey v. Campbell, 38 Barb. 238; S. C., 14 Abb. 368; Chamberlain v. Dempsey, 22 How. 356; S. C., 13 Abb. 421. As to the form of an affidavit, see, ante, page 270. The sureties are not compelled to justify to more than double the amount of the judgment proper. Rich v. Beekman, 2 Code R. 63. The respondent may except to the sufficiency of the sureties within ten days after the notice of the appeal; and unless they, or other sureties, justify before a judge of the court below, or a county judge, as prescribed by sections 195 and 196 of the Code, within ten days thereafter, the appeal will be regarded as if no undertaking had been given. The justification is required to be upon a notice of not less than five days. Code, § 341. Notice of exception to the sufficiency of the undertaking, and not to the sufficiency of the sureties, is insufficient. The notice of exception must be "to the sureties." Young v. Colby, 2 Code R. 68. And, in order to secure the benefit of such exception, it Notice of exception to suretics-Notice of sureties justifying-Filing undertakings. is necessary that the respondent attend on the officer at the appointed time. If he do not so attend, he will be deemed to have waived his exception; and this is so, although the sureties themselves do not attend. Ballard v. Ballard, 18 N. Y. (4 Smith) 491. The "ten days," within which the respondent may except to the sureties in the undertaking, do not begin to run until the undertaking is filed, although the notice of appeal and a copy of the undertaking be served before the filing. Webster v. Stevens, 5 Duer, 682; S. C., 3 Abb. 227. The notice that the sureties intend to justify, when made by mail, should be double time or ten days (Dresser v. Brooks, 5 How. 75; S. C., 1 Abb. Ct. App. 555); and if such service would carry the time of justification beyond the ten days required by section 341 of the Code, it should either be made personally or there should be an order of a judge obtained extending the time. Ib. If the sureties are rejected, and the appellant is allowed further time to procure new sureties, such sureties must justify on notice. without a fresh exception, or the security will be void. Chamberlain v. Dempsey, 13 Abb. 421; S. C., 22 How. 356. Notice of exception to sureties. (Title of the cause.) Take notice, that the respondent excepts to the sureties on appeal offered by the appellant, A. B., in this action. (Date.) (Signature.) Notice of sureties justifying. (Title of the cause.) Take notice, that the sureties on appeal in this action will justify before C. D., a justice of this court, at day of (Date.) o'clock in the noon. on the (Signature.) Section 8. Filing of undertakings. Every undertaking given on appeal is required to be filed with the clerk with whom the judgment or order appealed from was entered. Code, § 343. And they should be filed at the same time with the notice of appeal. Cushman v. Martine, 13 How. 402; S. C., 6 Duer, 660; Smith v. Heermance, 18 How. 261; New York Central Ins. Co. v. Safford, 10 id. 344. Of what the return consists - By whom procured and filed-Effect of omission, etc. ARTICLE V. THE RETURN. Section 1. Of what the return consists. On every appeal to the court of appeals, the first proceeding is to obtain a return from the court below. When the appeal is from a judgment the return consists of certified copies of the notice of appeal and of the judgment roll. When the appeal is from an order, such as is mentioned in the eleventh section of the Code of Procedure, the return consists of certified copies of the notice of appeal, of the order appealed from, and of the papers on which the court below acted in making the order. Rule 1, Ct. App. And, when the court, at a general term, renders judgment upon a verdict taken subject to the opinion of the court, the questions or conclusions of law, together with a concise statement of the facts upon which they arose, is required to be prepared by and under the direction of the court, and to be filed with the judgment roll, and be deemed a part thereof for the purpose of a review in the court of appeals. Code, § 333. Section 2. By whom procured and filed. It is made the duty of the appellant to cause the proper return to be made and filed with the clerk of the court of appeals, and this duty he must perform within twenty days after the appeal is perfected. Rule 2, Ct. App.; Code, § 328. And, not only is it the duty of the appellant to make application to the clerk for the return, but he must also see that it is prepared in due form and transmitted to the clerk of the court in due time. Spoore v. Fannan, 16 N. Y. (2 Smith) 620. Section 3. Effect of omission to file return. If the appellant fails to procure and file the return, the respondent may, by notice in writing, require such return to be filed within ten days after the service of the notice, and if the return be not filed in pursuance of such notice, the appellant will be deemed to have waived the appeal; and on an affidavit proving that the appeal was perfected, and the service of such notice, and a certificate of the clerk that no return has been filed, the respondent may enter an order with the clerk dismissing the appeal for want of prosecution, with costs. Rule 2, Ct. App. See Code, § 328. The court below may thereupon proceed as though there had |