IV.

Appeals in the supreme court, and the superior court, and the court
of common pleas of the city of New York, from a single judge to
the general term.

V. Appeal to the court of common pleas for the city and county of New
York, or to a county court, from an inferior court.

SECTION 323.

324.

CHAPTER I.

Appeals in general.

Writs of error abolished, and appeals substituted.

Orders made out of court, how vacated or modified.

325. Who may appeal.

326. Parties how designated on appeal.

327. Appeal how made.

328. Clerk to transmit papers to appellate court.

329. Intermediate orders affecting the judgment, may be reviewed on the

appeal.

330. Judgment on appeal.

331. Certain appeals to be within two years.

332. Other appeals within thirty days.

§ 323. [271.] Existing suits. Writs of error abolished and appeals substituted.-Writs of error in civil actions, as they have heretofore existed, are abolished; and the only mode of

* In all suits commenced before the code, and determined afterwards, the parties must govern themselves on appeal as far as may be practicable, by the new machinery; but where that will not answer the purpose, the parties are at liberty to resort to the former practice, unless that course has been plainly forbidden by the legislature. Per Bronson, Ch. J., in Farmer's Loan and Trust Co. v. Carroll, 5 Pr. R., 211.

In all suits commenced before the first of July, 1848, and then pending, a party intending to move to set aside a nonsuit or verdict, must still make and serve a case or bill of exceptions according to the old practice, and found his action thereon. An appeal in such cases to the general term according to the provisions of the code, cannot be taken. Thompson v. Blanchard, 4 Pr. R., 260.

See also, Scott v. Beeker, 3 Pr. R., 373. Doty v. Brown, ib., 375. Where an appeal had been dismissed with costs, and the costs had not been paid, and the appellant entered another appeal, the respondent moved to stay the proceedings on the second appeal until the costs of the first were paid, the court granted the motion. And per Bronson, Ch. J., two successive appeals in the same case like two actions for the same cause, tend to vexation. Dresser v. Brooks, 5 Pr. R.,

reviewing a judgment, or order, in a civil action, shall be that prescribed by this title.

An appeal is a substitute for a writ of error, and brings under examination the same class of questions as were subjected to the consideration of the appellate court on that writ. Morgan v. Bruce, 1 Code Rep. N. S., 364.

An appeal from a judgment brings before the appellate court only the determination of the court below upon the facts and its interlocutory decisions upon the questions of law upon which the final determination depends. Ib.

The presumption is always in favor of the action of the court below; and he who objects must point out the error in the proceedings. Balfour v. Mitchell, 12 Sme. & M., 626.

On an appeal from a judgment of a court of First Instance, where the record contained none of the proceedings of the court below, except the pleadings and judgment, and these were sufficient, no portion of the evidence being returned; held, that the appellate court would presume, nothing appearing in any way to the contrary, that the proceedings were regular, and sufficient evidence was adduced at the trial to warrant the judgment. Gonzales v. Huntley, 1 California R., 32.

No writ of error can issue in any action. See section 457 of this code.

§ 324. [272.] Existing suits. Orders made out of court, how vacated or modified.—An order, made out of court, without notice to the adverse party, may be vacated or modified, without notice, by the judge who made it, or may be vacated or modified on notice, in the manner in which other motions are made.

This section is identical with section 272 of the code of 1848; and while that code was in force it was held not to apply to injunction orders which could only be vacated or modified pursuant to section 198 of the same code, identical with section 225 of this code. Mills v. Thursby, 1 Code Rep., 121. This section does not apply to an order made out of court upon notice; such an order must be regarded as an order at special term. Follett v. Weed, 3 Pr. R., 360.

This section extends to an order to examine a defendant in proceedings supplementary to an execution. Lindsay v. Sherman, 1 Code Rep. N. S., 25.

A motion to vacate an order made by a justice of the supreme court, out of court, for a defendant to submit to examination, &c., pursuant to sections 292, 298, may to be made to the justice who granted the order, or any other justice of the same court. Blake v. Locy, 6 Pr. R., 108.

§ 325. [273.] Existing suits. Who may appeal.—Any party aggrieved may appeal in the cases prescribed in this title.

§ 326. [274.] Existing suits. Parties how designated on appeal. The party appealing shall be known as the appellant, and the adverse party as the respondent. But the title of the action shall not be changed in consequence of the appeal.

This section is said to apply only to the names of the parties, aud not to the name or style of the court, and therefore in all proceedings on appeal in the court of appeals, the papers must be entitled in that court, and not in the court from the decision of which the appeal is brought. Clickman v. Clickman, 1 Code Rep., 98.

§ 327. [275.] (Amended 1849.) Existing suits. Appeal how made. An appeal must be made by the service of a notice in writing on the adverse party, and on the clerk with whom the judgment or order appealed from is entered, stating the appeal from the same or some specified part thereof.* When a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit through mistake, to do any other act necessary to perfect the appeal or to stay proceedings, the court may permit an amendment on such terms as may be just.

This section corresponds to section 275 in the code of 1848. In the code of 1848 the section stopped at the point where the asterisk is placed. Upon this section, as it stood in the code of 1848, where a notice of appeal, which stated that the defendant appealed "from the judgment entered in this action to the general term," was objected to, the court, Harris, J., said, “Such a notice is, I think, a sufficient compliance with the requirement of the code. It was not, I apprehend, intended to require that the notice of appeal should be more specific than was required upon appealing from a decree or order in chancery; and there it was never required that the grounds of the appeal should be stated in the notice. It is enough if the notice specify what part of the judgment it is intended to review upon the appeal. Wilson v. Allen, 3 Pr. R., 372. *

The appeal is not made until the service of the notice on the clerk; and, therefore, the notice of appeal must be served as well on the clerk as on the respondent, within the times respectively prescribed by sections 331, 332. Westcott v. Platt, 1 Code Rep., 100.

The deposit of a notice of appeal in the post office on the last day for bringing the appeal, and where such notice is not received by the party to whom sent until after the time to appeal has expired, is in time; but a like service on the clerk is not in time, and is irregular. But the court has power to, and will, in such a case, order that the notice be deemed sufficient, so as to give the party the benefit of his appeal. Crittenden v. Adams, 1 Code Rep. N. S., 21.

Notice of appeal should be served on the attorney of record in the court below, not on the party. Ib.

The service of such notice being a jurisdictional question, the party can take advantage of it at any time, if he has not appeared so as to give jurisdiction in the case. Ib.

Where such service was made upon the party only who had not appeared, so as to give the court jurisdiction, held, that the appeal was a nullity. Tripp v. De Bow, 3 Code Rep., 163; 5 Pr. R., 114.

See rules of court of appeals, in appendix; and Dresser v. Brooks, 2 Code Rep., 130, and notes to sections 332, 334, and 341.

§ 328. [276.] Existing suits. Clerk to transmit papers to appellate court.-Upon the appeal, allowed by the second and third chapters of this title, being perfected, the clerk, with whom the notice of appeal is filed, shall, at the expense of the appellant, forthwith transmit to the appellate court a certified copy of the notice of appeal and of the judgment roll.

A question having arisen as to the order on the calendar of appeals from inferior courts, the supreme court, in general term at Albany, directed that such cases should have priority from the date of the filing the return of the court below, in analogy to the practice of the court of appeals, and to the former practice on writs of error in the supreme court. The papers are transmitted to the appellate court by being filed with

the clerk of the supreme court, in the proper county, and then this court has jurisdiction of the case, and from that time the cause should have priority. 2 Code Rep., 41.

Where the certified copy of the notice of appeal and judgment roll omitted the word "copy," and the name of the clerk, and was objected to on that ground, the court permitted an amendment. Lansing v. Russell, 4 Pr. R., 213. See rules of court of appeals, rule 2.

§ 389. [277.] Existing suits. Intermediate orders affecting the judgment may be reviewed on the appeal.-Upon an appeal from a judgment, the court may review any intermediate order involving the merits, and necessarily affecting the judg

ment.

§ 330. [278.] (Amended 1849.) Existing suits. Judgment on appeal.-Upon an appeal from a judgment or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary of proper, order a new trial. When the judgment is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judg

ment.

On appeal, only such parts of the judgment as are appealed from can be reviewed. Kelsey v. Western, 2 Coms., 500.

§ 331. [279.] Existing suits. Certain appeals to be within two years.-The appeal allowed by the second and third chapters of this title must be taken within two years after the judg

ment.

An appeal cannot be taken until after entry of the judgment appealed from. Bradley v. Van Zandt, 3 Code Rep., 217. McMahon v. Harrison, 5 Pr. R., 360. But it may be taken at any time on the same day that the judgment is entered, and in that case the court will not inquire which was first, the entry of the judgment or the taking the appeal. Blydenburg v. Cotheal, ib., 216.

If the party in whose favor judgment is rendered omit to perfect his judgment, the other party may compel him to do so, in order that an appeal may be brought. B'k of Geneva v. Hotchkiss, 1 Code Rep. N. S., 153; 5 Pr. R., 478. Lentilhon v. Mayor of New York, 1 Code Rep. N. S., 111.

An affidavit of justification made by the sureties upon an appeal to the court of appeals, will be sufficient to render the appeal effectual, if it states that the sureties are each worth double the amount of the judgment. But, in order to stay the proceedings upon the judgment, the sureties must also justify in double the amount ($250) required to be inserted in the undertaking, to cover the costs of the appeal. Newton v. Harris, 1 Code Rep. N. S., 191.

The code precludes the court from enlarging the time to appeal. Renouil v. Harris, 2 Code Rep., 71. Enos v. Thomas, 1 Code Rep. N. S., 67. Lindsey v. Almy, ib., 139. Rowell v. McCormick, ib., 73. And see Traver v. Silvernail, 2 Code Rep., 96. A stay of proceedings on the judgment does not extend the time to appeal. Renouil v. Harris, supra.

The time to appeal commences to run from the making the final order or judgment appealed from, and not from the time of docketing the judgment roll. B'k of Geneva v. Hotchkiss, 1 Code Rep. N. S., 153; 5 Pr. R., 478. Woolen Manufacturing Co. v. Townsend, 1 Code Rep. N. S., 415.

§ 332. [280.] (Amended 1849.) Other appeals within thirty days.-The appeal allowed by the fourth chapter of this title, must be taken within thirty days after written notice of the judgment or order shall have been given to the party appealing.

See note to preceding section.

The time for appealing under this section does not begin to run until the judgment is entered, which does not mean, entered on the minutes, at the special term, but entered in the judgment book and perfected. Bentley v. Jones, 3 Code Rep., 37.

The judgment cannot be considered as entered within the meaning of this section until it is perfected. Ib.

The judgment cannot be entered until the costs are ascertained, for the costs are to be inserted in the entry of judgment (s. 311). And until the amount of damages and costs are ascertained, the party cannot draw the undertaking required by section 335. Harris v. Bennett, 3 Code Rep., 23.

If the prevailing party neglect to complete his judgment, when the other party is desirous to appeal and obtain a speedy decision, the course of the latter is, to notify the former to perfect his judgment for that purpose; and if he do not perfect it in a reasonable time, the court will, on motion, compel him to do so, with costs, unless some good cause for the delay be shown. Lentilhon v. Mayor of New York, 1 Code Rep. N. S., 111. B'k of Geneva v. Hotchkiss, ib., 153.

CHAPTER II.

Appeals to the Court of Appeals.

SECTION 333. In what cases.

334. On any appeal security must be given to pay costs and damages, not exceeding $250, or deposit made, unless waived.

335. On judgment for money, security to stay execution

336. If judgment be to deliver documents, they must be deposited.

337. If to execute conveyance, it must be executed and deposited.

338. Security where judgment is to deliver property, for a sale of mortgaged premises.

339. Stay of proceedings upon security given.

340. Undertakings may be in one instrument, or several.

341. Security to be approved and to justify.

342. Perishable property may be sold, notwithstanding appeal.

343. Undertaking must be filed.

§ 333. [282.] Existing suits. In what cases.-An appeal may be taken to the court of appeals, in the cases mentioned in section eleven.

On the construction which I have given to these statutes (the code and supplement) when the matter was decided before the first of July 1848, the right to a review, the time within which the proceeding must be commenced, and the form of prosecuting it from beginning to end, all depend upon the old law. But when the