trustee is appealable, and upon such appeal, the court of appeals will examine the affidavits and evidence and the whole merits of the case. Matter of Livingston, supra.

c. Appeal from judgment.-On an appeal from a judgment only, the appellate court will not enter into a consideration of the evidence, in order to determine the correctness of the verdict. Bedell v. Commercial Mutual Insurance Co. 3 Bosw. 147. Where the jury at circuit has fixed the amount of damages, it is competent for the general term to decide whether the damages are excessive or not, and if the plaintiff will remit the amount adjudged excessive, to affirm the judgment as to the residue, otherwise to

grant a new trial. Sears v. Conover, 33 How. 324; S. C. 3 Keyes, 113; Aff'g S. C. 34 Barb. 330; Chouteau v. Suydam, 21 N. Y. (7 Smith), 179, 185; Boyd v. Foot, 5 Bosw. 110.

d. Rehearing. An order made upon motion in a special proceeding is not a proper subject for rehearing, unless upon an appeal to the general term. Matter of Livingston, 2 Abb. N. S. 3, sub nom. Livingston's Petition; S. C. 32 How. 20, and 34 N. Y. (7 Tiff.), 555. Where a judge grants a rehearing upon insufficient grounds, it is an error which the appellate court will correct on appeal. id. And see notes to § 329, ante.

a. Judgment on affirmance.-Where a judgment entered at special term is appealed to the general term, and is there affirmed, a new judgment should not be entered; the simple judgment of affirmance, with the award of costs (if any), should be attached to the original judgment roll. Eno v. Crooke, 6 How. 462; approved, De Agreda v. Mantel, 1 Abb. 130. It is improper to enter up two judgments in the same court for the same demand. id. But it seems that the old practice of entering a new judgment upon an affirmance on appeal still applies where the appeal is brought from a judgment of an inferior court to the supreme court. Eno v. Crooke, 6 How. 462. The judgment of affirmance must not contain any sums secured by the judgment of the court below; it should embrace only the costs and disbursements on the appeal, and the damages specially awarded as such by the appellate court. Halsey v. Flint, 15 Abb. 367.

b. Affirmance and reversal.-Where there are several defendants, and the judgment appealed from is in their favor, such judgment may be affirmed as to some of the defendants, and reversed and a new trial ordered as to others, when it would have been proper to render separate judgments in the inferior court. Geraud v. Stagg, 10 How. 369; S. C. 4 E. D. Smith, 27, sub nom. Giraud v. Stagg; Montgomery County Bank v. Albany City Bank, 7 N. Y. (3 Seld.), 459; S. C. below, 8 Barb. 396; Campbell v. Perkins, 6 N. Y. (2 Seld.) 86 (n.); 4 Seld. 130. The former practice was different. Moulton v. Norton, 5 Barb. 296; Van Schoonhoven v. Comstock, 1 Denio, 655; Harman v. Brotherson, id. 537; Sheldon v. Quinlen, 5 Hill, 441, 442, note a; Cruikshank v. Gardner, 2 id. 333; Flower v. Allen, 5 Cow. 668, 669'; Camp v. Bennett, 16 Wend. 52. The appellate court has the power of affirming in part and reversing in part a judgment brought in review before it, where such judgment is for distinct matters, easily separable. Story v. New York and Harlem Railroad Co., 6 N. Y. (2 Seld.), 85, 89. Tillou v. Kingston Mutual Insurance Co., 5 id. (1 Seld.),

405; S. C. below, 7 Barb. 570. And the same practice was pursued previous to the adoption of the Code. Parker v. Van Houten, 7 Wend. 145; Van Bokkelin v. Ingersoll, 5 id. 341; Bradshaw v. Callaghan, 8 Johns. 558; Rev'g S. C. 5 Johns. 80; Smith v. Jansen, 8 id. 111. But a judgment cannot be affirmed as to part of the amount recovered, and reversed as to the residue, where a new trial would be ordered as to the part so reversed. Story v. New York and Harlem Railroad Co., 6 N. Y. (2 Seld.), 85. And see subd. I, note c.

c. Dismissal of appeal.-In De Agreda v. Mantel, 1 Abb. 130, the form of the judgment on appeal from the special to the general term, in case of a dismissal, was stated to be: "It is ordered and adjudged that such appeal be dismissed and such judgment affirmed with costs, and that the respondent do recover and have execution for costs, etc., and inserted in the entry of this judgment.'

دو

d. Reversal.-The appellate court may reverse a judgment as to one of the several defendants who appeals, leaving it to stand as against the others who do not appeal in cases in which a several judgment is proper. Geraud v. Stagg, 10 How. 369; S. C. 4 E. D. Smith, 27, sub nom. Giraud v. Stagg. Not so where a joint judgment only would be proper. Farrell v. Calkins, 10 Barb. 348. When a judgment for the plaintiff in the marine or justices' court is reversed in the court of common pleas of New York without an award of final judg ment for the defendant, upon the merits, such reversal is not conclusive as to the rights of the parties. Ellert v. Kelly, 10 How. 392; S. C. 4 E. D. Smith, 12. In such a case, the costs incurred by the defendant in the inferior court cannot be allowed him and embraced in the judgment of reversal. id. Otherwise, perhaps, if the judgment of reversal had been final. Îb.

e. New trial.-In general, when a judgment is reversed, a new trial should be ordered. Halsey v. Flint, 15 Abb. 367. And see Dutch Reformed Church of Canajoharie v. Wood, 8 Barb. 421. But where the appellate court see that no possible proof applicable to the issues can entitle the party to a

recovery, it is not necessary or even proper that a new trial should be awarded. Edmonston v. McLoud, 16 N. Y. (2 Smith), 543; S. C. 19 Barb. 356; approved in Griffin v. Marquardt, 17 N. Y. (3 Smith), 28. Where an appellate court, whose judgment is further appealed to the court of appeals, has properly reversed the judgment of a subordinate court, but has improperly refused a new trial, the error may be reviewed in such court of last resort, and a new trial awarded. Griffin v. Marquardt, supra. Commenting on Astor v. L'Amoreux, 8 N. Y. (4 Seld.), 107. And see notes to § 265.

The court of common pleas of New York have decided that that portion of § 330, relative to granting new trials, has no application

III.

to appeals from the marine and justices' courts of that city. Ellert v. Kelly, 10 How. 392; S. C. 4 E. D. Smith, 12.

f. Entry, nunc pro tunc.—If the party appellant or respondent dies after appeal perfected, but before judgment, the judgment may be entered as of a day anterior to his death. Beach v. Gregory, 2 Abb. 203; S. C Aff'd, 1 Hilt. 201; 3 Abb. 78; DeAgreda v.. Mantel, 1 Abb. 130; Holmes v. Honie, 8 How. 383; Hastings v. McKinley, id. 175; Miller v. Gunn, 7 id. 159; Vroom v. Ditmas, 5 Paige, 528; S. C. 4 Paige, 526; Rogers v. Paterson, 4 id. 409. See, also, Bank of the United States v. Weisiger, 2 Peters, 481; Thorpe v. Mattingley, 1 Phillips R. 200, without bringing in the representatives. Ib.

a. General-new trial.-The language of this section in regard to restitution is not imperative, and leaves much to the discretion of the court. Coster v. Peters, 7 Rob. 386; S. C. 4 Abb. N. S. 53, sub nom. Costar v. Peters; Estus v. Baldwin, 9 How. 80. It is irregular to permit a judgment or order of restitution to be entered, where it has not been directed in the remittitur, without notice to the party to be affected by the order. Young Brush, 18 Abb. 171; S. C. 28 N. Y. (1 Tiff.), 667; 41 N. Y. (2 Hand), 620 (n.); Rev'g S. C. 38 Barb. 294; 24 How. 70. Restitution is to be directed where property or rights have been lost by an erroneous judgment. id. Restitution will not be ordered unless it is clear that the party to whom the money has been paid, holds it without right. id. Where a judgment of reversal embraces an order for a new trial, restitution will not always be refused. Britton v. Phillips, 24 How. 111; approved in Coster v. Peters, 7 Rob. 386; S. C. 4 Abb. N. S. 53, sub nom. Costar v. Peters. Where a judgment of reversal is final and absolute, and no new rights have been acquired, restitution must be ordered. Coster v. Peters, supra; Estus v. Baldwin, 9 How. 80.

b. Extent of restitution.-The restitution to which a party is entitled upon the reversal of a judgment, is not restitution of everything he has lost thereby; he recovers only what is still in possession of his adversary, but not everything else; the rights of third parties must be respected. Lovett v. German Reformed Church, 12 Barb. 67. Where the rights of third parties have intervened, who have been misled by the appearance of things, which has been the result of an omission to procure a stay, the court ought not to permit them to be prejudiced by an order for restitution. ROBERTSON, J., in Coster v. Peters, 7 Rob. 386; S. C. 4 Abb. N. S. 53, sub nom. Costar v. Peters.

c. Attachment suit.-In case of an attachment where the judgment in the attach

ment suit had been executed and paid, notwithstanding an appeal pending, the appellate court, on reversing the judgment below, will order a restitution of the moneys so paid, although the judgment of reversal embraces an order for a new trial, and although the attachiment is still in force. Britton v. Phillips, 24 How. 111. The restitution is effected by requiring a deposit of the moneys in court, to abide the result of the new trial, and subject to the lien of the attachment. Ib.

d. Judgment paid before appeal.When a judgment has been paid before appeal brought, but is not satisfied of record, the appellate court, on reversal, cannot order a restitution of such moneys. Sheridan v. Mann, 5 How. 201; S. C. 3 Code R. 213. It is otherwise, if the judgment has been satisfied of record, or if it appears on the record that such amount has been paid thereon. Ib.

e. Costs. In a case on appeal to the supreme court, where the judgment of the justice and county court are both reversed, complete restitution cannot be made to the appellant, short of paying him his costs of defending the action before the justice, and of prosecuting the appeal before the county court, together with costs in the supreme court. Estus v. Baldwin, 9 How 80. Approved in Jacks v. Darrin, 1 Abb. 232, where the general doctrine was held, that on & reversal of a judgment of an inferior court, the appellant is entitled to the costs of the court below, which he would have been entitled to if the proper judgment had been there rendered. And so, if the costs have been paid. id.; Whitbeck v. Patterson, 22 Barb. 83; Safford v. Stevens, 2 Wend. 158, (164).

f. Remedy-cumulative.-The power to order restitution of all property and rights lost by an erroneous judgment is cumulative, and does not take away the common law rights of a successful appellant, who has paid over money upon the erroneous judgment. Lott v. Swezey, 29 Barb. 87. See notes to § 369.

a. Entry of judgment.-An appeal can not be taken until the judgment roll is filed. McMahon v. Harrison, 5 How. 360; Bradley v. Van Zandt, 3 Code R. 217. Where the appeal was taken on the same day before the hour of filing the roll, held sufficient. Blydenburgh v. Cotheal, 5 How. 200; S. C. 4 N. Y. (4 Comst.), 418; 3 Code R. 216; approved in Jones v. Porter, 6 How. 286. The party desiring to appeal may, by motion and order of the court in which the judgment is rendered, compel the other party to perfect his judgment, if he delays to do so. Purdy v. Peters, 15 Abb. 160; S. C. 23 How. 328; Peet v. Cowenhoven, 14 Abb. 56; Lentilhon v. Mayor, etc. of New York, 1 Code R. N. S. 111; S. C. 3 Sandf. 721; Bank of Geneva v. Hotchkiss, 1 Code R. N. S. 153; S. C. 5 How. 478; Mc Mahon v. Harrison, 5 How. 360.

b. Effect of stay.— An order staying proceedings on the judgment will not extend the time for appealing. Renouil v. Harris, 2 Code R. 71; S. C. 2 Sandf. 641; 1 Code R. 125. If a party moves to set aside a proceeding for irregularity, and he fails in his motion, and if, during the pendency of the motion,

the time to appeal expires, the right of appeal will be lost. Ib.

made on an application to set aside a judicial c. Appealable order-sale.-An order sale under a judgment of foreclosure, on the ground of fraud, is appealable within the two years prescribed in this section. King v. Platt's Executors, 34 How. 26; S. C. 3 Abb. N. S. 174. A judgment in a foreclosure suit is final, and is appealable before the coming in of the report of sale, and the time for appealing from such judgment is reckoned from the date when notice thereof is given to the defendant. Morris v. Morange, 4 Abb. N. S. 447; S. C. 6 Trans App. 1, and 38 N. Y. (If Tiff.), 172. Where notice of such a judgment was served on the defendant on the 16th of February, and his notice of appeal was not served within the time for appealing (30 days), reckoning from the date of the former notice, held, that the right to appeal was lost, although the report of the sale was not confirmed until May 26, and notice of the order confirming the report was not served until November 25 of the same year. id. See next (332) section.

a. Entry.-The time to appeal must be computed from the date of the entry of the order or judgment. Gallt v. Finch, 24 How. 193. And in computation of that time the first day is excluded by § 407, so that an order entered May 27th, was appealed in time by serving notice of appeal on the 27th of June. Ib.

b. Service of notice by mail.-Where the notice of appeal was mailed to the clerk on the thirtieth day, but not actually received until four days afterward, held, that the appeal was of no effect. Morris v. Morange, 26 How. 247; S. C. 17 Abb. 86; S. C. Aff'd, 38 N. Y. (11 Tiff.), 172; S. C. 31 How. 639 (n.), sub nom. Morange v. Morris, 4 Abb. N. S. 447; 6 Trans. App. 1. Where the service of the notice of the judgment or order is by mail, double the thirty days is allowed the party in which to bring his appeal under § 412. Dorlon v. Lewis, 7 How. 132.

c. Power of the court.-Where the statute fixes a period of time in which an appeal may be taken, the court cannot lawfully extend the statute time. Salles v. Butler, 27 N. Y. (13 Smith), 638; S. C. below, 27 How, 133, sub. nom. Salls v. Butler; Wait v. Van Allen, 22 N. Y. (8 Smith), 319; Humphrey v. Chamberlain, 11 N. Y. (1 Kern.), 274; Bryant v. Bryant, 4 Abb. N. S. 138; S. C. 7 Rob. 49; Cotes v. Carroll, 28 How. 436; Morris v. Morange, 26 id. 247; S. C. 17 Abb. 86; S. C. Aff'd, 38 N. Y. (11 Tiff.), 172 ; 4 Abb. N. S. 447; and 6 Trans. App. 1; 31 How. 639 (n.), sub. nom. Morange v. Morris; Gallt v. Finch, 24 How. 193; Ellsworth v. Fulton, id. 20; Fry v. Bennett, 16 id. 385; S. C. 7 Abb. 352; 2 Bosw. 684; Aff'd 26 How. 599 (n.); Marston v. Johnson, 13 id. 93. And see § 327, subd. II, note c. Nor has the court power to amend a notice of appeal, the effect of which will be not

exceptions, does not also extend the time to serve a notice of appeal. Salls v. Butler, 27 How. 133; S. C. Aff'd, 27 N. Y. (13 Smith), 638, sub nom. Salles v. Butler. But see Sherman v. Wells, 14 How. 522; Jackson v. Fassitt, 33 Barb. 645; S. C. 21 How. 279; 12 Abb. 281.

d Stay of proceedings. —An order staying proceedings on a judgment does not enlarge the time for appealing from the judgment. Renouil v. Harris, 2 Code R. 71; S. C. 1 id. 125; 2 Sandf. 641. An order to stay plaintiff's proceedings, except as to the entry of judgment, prevents him from giving notice of the judgment, and operates to extend the time of appeal. White v. Klinken, 16 Abb. 109. The extension of the time to file

II. OF THE NOTICE OF

a. Time when notice may be given. While the judgment is so incomplete that an appeal, if moved, must be dismissed, notice limiting the time within which the opposite party is permitted to appeal, cannot be given. Sherman v. Postley, 45 Barb. 348. Notice of the judgment, intended to limit the time for appealing, cannot be given until the entry is completed by filing the judgment roll. id. Sherman v. Wells, 14 How. 522. Notice of appeal from a judgment, so as to limit the time for appealing, cannot be given until its amount is definitely settled, and the costs are adjusted. Champion v. Plymouth Congregational Society, 42 Barb. 441; Sherman v. Wells, 14 How. 522. The practice of allowing a party to enter and docket his judgment, without notice of taxation, is merely to prevent delay in obtaining his lien and securing his demand; and it would be unjust to permit him so to use the privilege as to shorten the time within which his opponent may appeal. J. C. SMITH, J., in Champion v. Plymouth Congregational Society, 42 Barb. 441. An order made out of court, upon notice, must be entered with the clerk before the notice thereof will begin to limit the time for appealing. Gallt v. Finch, 24 How. 193.

b. Notice essential.-Unless the notice of the judgment or order is given, the time to appeal continues without limitation. Fry v. Bennett, 16 How. 402; S. C. 7 Abb. 352; Aff'd, 26 How. 599 (n.) The party may acquire knowledge of the judgment or order in any manner, but unless the successful party actually serves the notice, such knowledge will not limit the time for appealing. id. And see Leavy v. Roberts, 8 Abb. 310; S. C. 2 Hilt. 285; Aff'd, 27 How. 599 (n.); Gay v. Gay, 10 Paige, 370; People ex rel. Backus v. Spaulding, 9 il. 607.

e. Objection-waiver.-A motion to dismiss an appeal, on the ground that the appeal was brought after the time allowed by law for bringing appeals had expired, will be denied where there have been laches in moving. Stevenson v. McNitt, 27 How. 335. Where a party gives an admission of due service of notice of appeal, it will be regarded as a waiver of the right to object that it was not served within the period limited by law. Struver v. Ocean Insurance Co., 9 Abb. 23; S. C. 2 Hilt. 475.

JUDGMENT OR Order.

c. Notice, what to contain.-A notice of judgment, served by the attorney, without being signed by him, or mentioning his place of business, is a nullity. Yorks v. Peck, 17 How. 192. One who attempts to limit the time for appealing must be held to strict practice. id. The notice is defective if it omits to state the clerk's office in which the judgment is entered. Valton v. National Loan Fund Life Assurance Society, 19 id. 515. Such a notice does not limit the period for appealing. id. The notice must be in writing. Fry v. Bennett, 16 How. 402; S. C. 7 Abb. 352; Aff'd, 26 How. 599 (n.); Staring v. Jones, 13 How. 423; Rankin v. Pine, 4 Abb. 309. Nothing short of a written notice will limit the time to appeal. id. Even where the appellant enters the order himself. Ib.

d. Resettlement.- Where an order is made, settled and entered, and a copy served on the opposite party, but is afterward modified and resettled by order of the judge, the party obtaining the order, if he would limit the time in which the opposite party may appeal, must cause it to be entered as settled finally, and serve a copy of it. Bowman v. Earle, 3 Duer, 691.

e. Judgment in foreclosure. - The usual decree in an action to foreclose a mortgage, directing the premises to be sold, and a judgment for the deficiency, if any, is in a condition to be appealed before the proceedings in regard to the sale are had; and notice limiting the time to appeal may be given immediately on the entry of such decree. Morris v. Morange, 38 N. Y. (11 Tiff.) 172; S. C. 6 Trans. App. 1; 4 Abb. N. S. 447; Aff'g S. C. 17 Abb. 86, and 24 How. 247. See section 331 and notes.

Party appealing. The term " party appealing" must be taken to mean the party in whom is the right to appeal. Beach v.

Gregory, 2 Abb. 203, 209; S. C. Aff'd, 1 Hilt. 201; 3 Abb. 78, sub nom. Beach v. Raymond.