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, 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 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.

a. Stay of proceedings. An undertaking pursuant to § 334 will be sufficient to render an appeal from a judgment directing the sale of mortgaged premises effectual, but not for a stay of proceedings. Fireman's Insurance Co. of Albany v. Bay, 3 How. 424; S. C. 2 Code R. 3. It seems that the undertaking mentioned in this section is requisite to secure a stay.

b. Amount of security.-The sum to be named in the undertaking is to be fixed by a judge, and the only discretion that resides in the court is confided to it by § 339. If the sum exceed $50,000, it may be reduced Watt v. Watt, 15 Abb. 367 (n.) See § 339. Unless the proper security is given, the proceedings will not be stayed. People v. Church, 2 Lans. 459, 468.

Stay of proceedings upon security

§ 339. [288.] (Am'd 1849, 1851.) given. Whenever an appeal is perfected as provided by sections 335, 336, 337 and 338, it stays all further proceedings in the court below, upon the judg ment 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. And the court below may, in its discretion, dispense with or limit the security required by sections 335, 336 and 338, when the appellant is an executor, administrator, trustee or other person acting in another's right; and may also limit such security to an amount not less than fifty thousand dollars, in the cases mentioned in sections 336, 337, 338, where it would otherwise, according to those sections, exceed that sum.

a. Appeal "perfected."-The meaning of this phrase, as used in the Code, is thus defined by BRONSON, J. "An appeal is perfected, within the meaning 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 order was entered." Thompson v. Blanchard, 4 How. 210; S. C. 2 N. Y. (2 Comst.), 561; 2 Code R. 138.

b. Security-effect of.-The effect of security is simply to stay proceedings at the point where they are when the security is given. It gives the court no authority to vacate any proceeding, or release any right previously acquired. Rathbone v. Morris, 9

Abb. 213.

Matter of Berry, 26 Barb. 55; Cook v. Dickerson, 1 Duer, 679. The proceedings on the execution and levy are simply suspended until the decision of the cause in the appellate court. id. But the court should exercise its discretionary powers to the extent of discharging the levy where the security is ample and the appeal is taken in good faith. Stricker v. Wakeman, supra.

d. Executors.-Upon an appeal by executors, the amount of the security may be limited to the amount of assets disclosed to be in their hands. Mills v. Forbes, 12 How. 466.

e. Stay of proceedings.-The oral announcement of the judgment of affirmance, and the entry in the minutes of the clerk, does not terminate the stay of proceedings. A formal entry and incorporation into the record is essential before the stay is raised. Bowman v. Tallman, 19 Abb. 84; S. C. 28 How. 482; 3 kob. 633, and 2 id. 632.

f. Action.-Giving an undertaking, on appeal to the court of appeals, did not formerly constitute a defense to an action already commenced on the undertaking given on appeal to the general term. Burrall v. Vanderbilt, 1 Bosw. 637; S. C. 6 Abb. 70. But the de

fendant could have moved for a stay until the appeal last taken was decided. Van Vleeck v. Clark, 24 How. 190; S. C. 38 Barb. 316, sub nom. Van Vleck v. Clark. But this is not the law now. See § 348.

§ 340. [289.] (Am'd 1849.) Undertakings may be in one instrument or

several.

The undertakings prescribed by sections 334, 335, 336 and 338, 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 as provided in section 334, and notice thereof given.

a. Stay of proceedings.-To effect a stay of proceedings, the undertakings mentioned in this section should be filed and served with the notice of appeal, not afterwards. Smith v. Heermance, 18 IIow. 261; Cushman v. Martine, 13 id. 402; S. C. 6 Duer, 660; New York Central Insurance Co. v. Safford, 10 How. 344.

b. Amendment.-But the court which pronounced the judgment may order a stay,

on motion, provided the proceedings on appeal be amended, and the undertaking be filed and served. Cushman v. Martine, 13 How. 402; S. C. 6 Duer, 660; New York Central Insurance Co. v. Safford, 10 How. 344. And see Mills v. Thursby, 11 id. 129.

c. Costs will be imposed for a disregard of this section. See Beech v. Southworth, 1 Code R. 99; S. C. 6 Barb. 173, sub nom. Beach v. Southworth.

§ 341. [290.] (Am'd 1849.) Security to be approved and to justify. An undertaking upon an appeal shall be of no effect unless it be accompanied by the affidavit of the sureties that they are each worth double the amount specified therein. The respondent may, however, 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, within ten days thereafter, the appeal shall be regarded as if no undertaking had been given. The justification shall be upon a notice of not less than five days.

a. Necessity of justification.-If the sureties fail to justify, the appeal itself becomes a nullity. Kelsey v. Campbell, 14 Abb. 368; S. C. 38 Barb. 238. See this case explained in 40 Barb. 434; Chamberlain v. Dempsey, 13 Abb. 421; S. C. 22 How. 356. Where the sureties in an undertaking, having been excepted to, failed to justify, and the court, upon motion, refused them permission to justify, the notice of appeal, with all the proceedings connected therewith, fell to the ground, and the parties were remitted to the same condition they were in before the notice was given. BROWN, J., in Kelsey v. Campbell, supra.

b. Amount.-The sureties are not compelled to justify to more than double the amount of the judgment proper. Rich v. Beekman, 2 Code R. 63.

c. Notice of exception.- Where the notice of exception was to the sufficiency of the undertaking and not to the sufficiency of the sureties, held, insufficient notice. The

party should except to the sureties, not to the undertaking. Young v. Colby, 2 Code R. 68.

The "ten days" allowed to give notice of exception 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. Stephens, 3 Abb. 227; S. C. 5 Duer, 682. Where a notice of appeal and a copy of the undertaking was served on the respondent August 18, but the undertaking was not filed until September 13, a notice of exception served on September 16 was held to be in time. Ib.

d. Benefit of exception.-In order to secure the benefit of an exception to sureties, it is necessary that the respondent attend on the officer at the appointed time. Ballard v. Ballard, 18 N. Y. (4 Smith), 491. If he do not so attend, he will be demed to have waived his exception; and this is so, although the sureties themselves do not attend. Ib.

e. Notice of justifying. - 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. Where such service would carry the time of justifying beyond that required in the Code (ten days of this section), the service should be made personally, or there should be an order of the judge extending time. id. A respondent excepted to the sureties, and served notice of the exception by mail on the 7th of June; the notice being received on the 10th, the appellant served notice by mail immediately, that the sureties would justify on the 17th, and they did appear and justify on that day, the respondent not appearing, because the notice being by mail, should have been at least ten days; but it was held to be an irregular justification, and the appeal was ordered to be dismissed, unless the sureties justified within thirty days, and the appellant paid costs of the motion. Ib.

f. New justification. Where the respondent refused to attend a justification of sureties, because the hour stated in the notice had passed (the delay, however, being excused), but the sureties appeared and justified, held, that as the delay was excusable, the respondent ought to have attended, but as it appeared by his affidavit that the sureties were irresponsible, he was entitled to an order of dismissal, unless the appellant should serve a new notice of justification, and the sureties justify anew, or new sureties be substituted. Hees v. Snell, 8 How. 185.

g. New undertaking. Where the sureties in an undertaking had been rejected, and an order issued, directing the appellant to file a new undertaking with new sureties, held, that the appellant must not only file the undertaking, but procure the justification of the sureties within the time mentioned in the order. Chamberlain v. Dempsey, 13 Abb. 421; S. C. 22 How. 356. No exception by the respondent to the new sureties is necessary to call for their justification in such a case; the order provides for that in effect. Ib.

h. Who may be surety. - In the old court of chancery, an attorney or solicitor of bond. Studwell v. Palmer, 5 Paige, 57. Not the appellant might be a surety on an appeal so under the present rules. Rule 8.

i. Sureties discharged. — Under the present practice, the sureties, in an error bond, where the writ of error has been superseded because the sureties failed to justify on exception, are discharged. Ward v. Syme, 4 N. Y. (4 Comst.), 171; 1 Code R. N. S. 266; Aff'g S. C. 8 N. Y. Leg. Obs. 95. Formerly it was necessary for the sureties to have their names struck out of the bail piece on motion; or to have an exoneretur entered. Ib.

j. The merits of appeal will not be considered on an application for justification of sureties. Bradley v. Hall, 1 Cal. R. 199

§ 342. [291.] (Am'd 1849.) Perishable property may be sold, notwith standing appeal.

In the cases not provided for in sections 335, 336, 337, 338 and 339, the perfecting of an appeal, by giving the undertaking mentioned in section 334, shall stay proceedings in the court below, upon the judgment appealed from, except that, where it directs the sale of perishable property, the court below may order the property to be sold, and the proceeds thereof to be deposited or invested, to abide the judgment of the appellate court.

a. Mandamus. Perfecting an appeal under § 334, from a judgment awarding a peremptory mandamus, stays the issuing of the mandamus and all proceedings in the court below on the judgment. People ex rel. Thomas v. Commissioners of Highways of Milton, 25 How. 257. Therefore, a peremptory mandamus, issued after the appeal is so perfected, will be set aside for irregularity. Ib.

b. Delivery of personal property.Where the judgment directs the delivery of personal property which will depreciate by time and use, and, on appeal, the appellant gave the undertaking mentioned in § 336, held, that this did not stay proceedings, unless the respondent should also be indemnified for the use and the depreciation of the property, in case the judgment appealed from should be finally affirmed. Read v. Potter, 11 Abb. 413.

c. Injunction.-Where the judgment ap

pealed from awards a perpetual injunction, and the appeal is perfected by giving the security required by § 334, the proceedings, in pursuance of the injunction order, are stayed. Howe v. Searing, 6 Bosw. 684. But the injunction itself is not vacated, and the party who proceeds to do the acts which the injunction is designed to restrain, does so at the risk of being punished if the judgment is affirmed. Ib.

d. Surrogate's court-On an appeal from the supreme court to the court of appeals, on a decision in reference to a surrogate's decree, the surrogate's court is regarded as the court below, as intended by this section. Anonymous, 3 Code R. 69. The appeal is from the surrogate's court to the general term, supreme court, and thence to this court. Marvin v. Marvin, 4 Keyes, 9; Johnson v Hicks, 1 Lans. 150; Lewis v. Jones, 50 Barb.

§ 343. [292.] (Am'd 1866.) Undertaking must be filed.

The undertaking must be filed with the clerk with whom the judgment or order appealed from was entered. The provisions of this chapter as to the security to be given upon appeals, and as to the stay of proceedings shall apply to appeals taken under subdivision 3 of section 11.

CHAPTER III.

Appeal to the supreme court from an inferior court.

SECTION 344. In what cases.

Security must be given as upon appeal to the court of appeals.
Appeal, where heard.

345.

346.

347.

Judgment on appeal, where entered and docketed.

§ 344. [293.] (Am'd 1849, 1858, 1860.) In what cases.

An appeal may be taken to the supreme court from the judgment reu dered by a county court or by the mayors' courts, or the recorders' courts of cities.

An appeal may also be taken to the supreme court from any order at fecting a substantial right made by a county court or a county judge, in any action or proceeding, and such appeal shall be heard on a copy of the papers on which the order appealed from was made.

a. Power of the supreme court on appeal.-The supreme court, upon an appeal from an inferior court, under this section, possesses no other powers than it formerly possessed upon a writ of error; hence upon appeal from a mayor's court, the supreme court cannot reverse the judgment because the jury have given excessive damages. Such errors must be corrected in the court of original jurisdiction. Thurber v. Townsend, 22 N. Y. (8 Smith), 517. See, also, Lynch v. McBeth, 7 How. 115; Dorr v. Birge, 5 id. 323; S. C. 8 Barb. 351; 1 Code R. N. S. 74, sub nom. Dorr v. Birdge. But, on appeal from the county court, the supreme court has authority to correct the judgment by conforming it to the pleadings, as to amount, and to reverse in part and affirm in part. Weed v. Lee, 50 Barb. 354.

b. Motion for a new trial must be made in the county court before an appeal can be taken on a case or bill of excep

tion in that court to the supreme court.

An

appeal to the supreme court from the county court does not authorize the supreme court to reverse the judgment and grant a new trial upon exceptions taken upon the trial in the county court. Carter v. Werner, 27 How. 385; Simmons v. Sherman, 30 id. 4. But see, contra, Monroe v. Monroe, 27 id. 208; Boughton v. Mitchell, 29 id. 68; S. C. 19 Abb. 163, sub nom. Broughtou v. Mitchell; Whitney v. Wells, 28 How. 150; Dixon v. Buck, 42 Barb. 70. See, also, Taylor v. Scoville, 54 Barb. 34; Bliss v. Schaub, 48 Barb. 339.

c. Summary proceedings.-An order of a county court dismissing an appeal taken from a judgment of a justice of the peace in summary proceedings, to recover the possession of lands, is appealable to the supreme court. Hammond v. Carpenter, 29 How. 43.

d. Discretionary.-The granting of a 366 of the Code, is a matter of mere discrenew trial by the county court, under section tion not reviewable on appeal. Wavel v. Wiles, 34 N. Y. (10 Smith), 635; Tanner v. Marsh, 36 How. 140; S. C. 53 Barb. 438.

e. Not before judgment.-It is doubt ful whether an appeal to the supreme court can be taken from an order of a county court denying a new trial, until after judgment, and then only in connection with an appeal from the judgment. Taylor v. Scoville, 54 Barb.

34.

§§ 345, 346.] APPEALS TO SUPREME COURT FROM SUPERIOR COURT.

§ 345. [294.] Security must be given as upon appeal to the court of appeals.

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.

a. Appeal ineffectual without se- | curity. The appeal is ineffectual for any purpose, unless security is given as required by section 334 of the Code. Jones v. Decker, 14 Abb. 391.

b. Residence of sureties.-On an ap

§ 346. [295.] Appeal, where heard.

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.