with notice of trial. Tracy v. New York Steam | established, will be fatal to the plaintiff's Faucet Co. 1 E. D. Smith, 357.

V. SUBSTANTIAL

be continued in the name of surviving plaintiffs, and admitting others in the place of a deceased plaintiff. St. John v. Croel, 10 How. 353.

c. An order for extra allowance, exceeding the prescribed limits. People v. New York Central Railroad Co. 29 N. Y. (2 Tiff.), 418; Wilkinson v. Tiffany, 4 Abb. 98; Union Bank v. Mott, 13 Abb. 247. d. An order denying a party the exclusive right to a large sum of money-Artisans' Bank v. Treadwell, 34 Barb. 553; S. C. Aff'd, 25 N. Y. (11 Smith), 489, sub nom. Van Alstyne v. Cook.

VI. ORDER GRANTING OR 1. When reviewed. The decision on a motion for a new trial, can only be reviewed on an appeal from the order granting or refusing such new trial. Morange v. Morris, 32 Barb. 650; S. C. 12 Abb. 164; 20 How. 257; Morrison v. New York and Harlem Railroad Co. 32 Barb. 568.

b. After judgment.-An appeal from an order denying a motion for a new trial may be taken after judgment has been entered: Lane v. Bailey, 30 How. 76; S. C. 47 Barb. 119; 1 Abb. N S. 407; Pumpelly v. Village of Oswego, 22 How. 385; S. Č. 13 Abb. 387; S. C. Aff'd, 26 How. 602. See, contra, Soverhill v. Post, 22 id. 386.

c. City court of Brooklyn. — An order of the city court of Brooklyn, denying a motion for a new trial is appealable to the supreme court. Suydam v. Grand Street and Newtown Railroad Co. 17 Abb. 305; S. C. 41 Barb. 375; Bennett v. City of Brooklyn,

19 How. 310.

d. Where appeals are taken both from the judgment and the order refusing a new trial, the appeal from the judgment is not prejudiced by the fact that the party had no right to move for a new trial. Jackson v. Fassett, 12 Abb. 281; S. C. 33 Barb. 645; 21 How. 279.

e. To present a question of fact upon the evidence, or the right to a new trial, for the reason that the verdict is against

e. An order denying a motion to correct an illegal adjustment of costs. Sluyter v. Smith, 2 Bosw. 673.

f. An order that in default of discovery, the party required to make the discovery shall be nonsuited. Broderick v. Shelton, 18 Abb. 213.

g. A final order providing that the plaintiff recover of the defendants $42.05 damages, without costs, and that the defendants recover of the plaintiffs, a like sum, for costs, and that the judgments off-set each other. Howland v. Coffin, 32 How. 300; S. C. 47 Barb. 653.

REFUSING A NEW TRIAL.

evidence, or upon the ground of surprise, or newly discovered evidence, or the like, a motion must be made at special term, before judgment. Morrison v. New York and Harlem Railroad Co. 32 Barb. 568; Morange v. Morris, 32 Barb. 650; S. C. 12 Abb. 164; 20 How. 257.

f. An appeal to the court of appeals from an order refusing a new trial, does not prevent the respondent from entering Such judgjudgment in the court below. ment does not affect the appeal; nor can the court below stay the proceedings upon it. Valton v. National Loan Fund Life Assurance Society, 19 How. 515. See, also, McMahon v. Allen, 22 How. 193; S. C. 13 Abb. 126.

g. Postponement.-A party may entitle himself to a review of a decision, denying his motion to postpone the trial of a cause, either by withdrawing from the trial, and moving at special term to set aside the decision, or by remaining and trying the cause upon the merits, and in case of a decision against him, pursuing the course above stated; or if the trial was by jury, by moving at special term upon a case for a new trial; or if the trial was by the court, by appealing directly to the general term. Howard v. Freeman, 3 Abb. N. S. 292; S. C. 7 Rob. 25; Rev'g S. C. 6 Rob. 511.

VII. SECURITY ON APPEAL-STAY OF PROCEEDINGS. a. No security required.-On appeals from orders made upon special motions, as distinguished from judgments, no security is required. Beach v. Southworth, 6 Barb. 173; S. C. 1 Code R. 99; Nicholson v. Dunham, 1 Code R. 119; Allen v. Johnson, 2 Sandf. 629; Emerson v. Burney, 6 How. 32; S. C. 1 Code R. N. S. 189; Cook v. Pomeroy, 10 How. 103. Unless a stay of proceedings is wanted. Bacon v. Reading, 1 Duer, 622; S. C. 11 N. Y. Leg. Obs. 122.

| Railroad Co. 6 Abb. N. S. 442; Clark v. Brooks, 2 Daly, 159; S. C. 2 Abb. N. S. 385. See, also, § 350, following.

b. The court may grant a stay of proceedings pending an appeal when desired, upon such terms as may be just. Genin ▼. Chadsey, 12 Abb. 69; Belmont v. Erie

c. Available security.- An undertaking required as a condition of granting a stay of proceedings, pending an appeal from an order, is an available security to the respondent, if the order be affirmed. Winterhoff v. Siegert, 13 Abb. 182.

d. Per se.- An appeal from an order to the general term does not operate, per se, as a stay of proceedings. Story v. Duffy, 8 How. 487; Forbes v. Oaks, 2 Abb. 120; Bacon v. Reading, 1 Duer, 622; S. C. 11 N. Y. Leg. Obs. 122; Hicks v. Smith, 4 Abb. 285; John

son v. Scriven, 3 Abb. 208; Valton v.
National Loan Fund Life Association, 19
How. 515; S. C. Rev'd, 26 How. 602 (n.);
Freeman v. Young, 3 Rob. 666; Christy v.
Libby, 3 Abb. N. S. 423.

e. Enlarging time.-An appeal from an

order which grants a favor to the appellant, provided he complies with the terms within a certain specified time, does not operate to enlarge the time for complying with such terms. Ferry v. Bank of Central New York. 9 Abb. 100.

VIII. HEARING ON APPEAL.

a. Papers.- On appeal to the general term from an order, all papers used upon the motion must be served with the notice of appeal, and similar copies must be furnished to the judges, on the argument of the appeal. Smith v. Chapman, 33 How. 308. Otherwise the appeal will be dismissed. Sun Mutual Insurance Co. v. Dwight, 1 Hilt. 50.

b. Formal and preliminary objections, not involving the merits of a motion, will not be considered upon appeal, unless it appears affirmatively that they were taken and overruled at the hearing of the motion. Merritt v. Thompson, 1 Hilt. 551.

c. The objection that an order does not conform to the decision actually made, cannot be considered on appeal therefrom. Ehle v. Haller, 6 Bosw. 661; S. C. 10 |

Abb. 287.

d. Objections to motion papers which might have been remedied, if made by amendment at special terin, cannot be considered on the argument of the appeal. Jackson v. Smith, 16 Abb. 201; S. C. 25 How. 476.

e. Presumptions.-On appeal from an order, where no affidavits were read in opposition to those in support of the motion, the presumption will be in favor of the statements in such affidavits. Jackson v. Smith, 16 Abb. 201; S. C. 25 How. 476. So with an order, |

proper to be granted only as a matter of favor, the appellate court will presume that it was so granted, until the contrary appears. Leighton v. Wood, 17 Abb. 177 So with an order denying a motion to set aside proceedings for irregularity, if the irregularity is not stated in the notice of motion, the appellate court may presume that the motion was denied for such defect in the notice. Lewis v. Graham, 16 Abb. 126.

f. Argued together.-Where an appeal is taken from a judgment, and there has also been an appeal from an order denying a motion for a new trial on the judge's minutes, it is the better course to hear both appeals argued on the appeal from the judgment. Lane v. Bailey, 30 How. 76; S. C. 45 Barb. 119; 1 Abb. Ñ. S. 407.

g. The rule as to the conclusiveness of the finding of a jury upon conflicting evidence has no application to a motion where the evidence is presented in the form of affidavit. An appellate tribunal is just as competent to pass upon a question presented upon affidavits as the judge who first heard the motion. Brodsky v. Ihms, 16 Abb. 251; S. C. 25 How. 474 (dissenting opinion).

h. Costs.-See Savage v. Darrow, 2 Code R. 57; Nellis v. Deforest, 6 How. 413; Jackett v. Judd, 18 How. 385; Purchase v. Bellows, 16 Abb. 105; S. C. 9 Bosw. 642.

§ 350. [300.] (Am'd 1870.) Orders at chambers to be entered before appeal.

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. And proceedings under an order appealed from may be stayed by an order of the court, or a judge thereof, on such terms as may be just.

a. Ex parte orders granted by a justice | at chambers under § 366 (now § 405), need not be entered with the clerk. Savage v. Relyea, 3 How. 276; S. C. 1 Code R. 42.

b. On motions made at chambers, upon notice, under § 360 (now § 401), the affidavits, etc., used on the motion must be filed with the clerk of the county where the venue is laid; or in case the place of trial has been changed, with the clerk of the county to which the other papers in the cause are transferred. And the order or decision in such cases must also be entered with the clerk of

the county where such papers are filed. Savage v. Relyea, 3 How. 276; Nicholson v. Dunham, I Code R. 119.

c. An order improperly entered, may be stricken out on motion. Bedell v. Powell, 3 Code R. 61. See Kelly v. Thayer, 34 How. 163. d. Order at chambers as of special term. An order purporting to have been made by a judge "at chambers as of special term," by stipulation, cannot be supported as an order of the court, and an appeal from an order thus entered will be dis missed. Kelly v. Thayer, 34 How. 163.

To give effect to the intention of the parties in such a case, the prevailing party should enter the order as an order of the special

term, without reciting the stipulation, or noticing the fact that it was heard at chambers, instead of special term. Ib.

CHAPTER 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 351.

Existing laws repealed, and this chapter substituted. 352. By what courts judgments to be reviewed.

353.

Appeal, when to be taken.

354. Copy notice of appeal to be served; payment of costs, etc.
355. Security to stay execution.

356. Form of undertaking.

357. Execution, how stayed.

358. In case of death of justice, undertaking to be filed.

359. Filing notice of appeal instead of service.

360. Return, when and how made, and compelled.

361. How made if justice be out of office.

362. Further return may be ordered.

363. If justice be dead, insane or absent from the State, witnesses to be examined; if in another county, return may be compelled.

364. Hearing, upon return; dismissing appeal if not brought on.

365. To be heard on original papers, or certified copies.

366. Judgment, how given.

367. Judgment roll.

368. Costs, how awarded.

369. Ordering restitution.

370. Setting off costs and recovery.
371. The costs on appeal.

GENERAL NOTES RELATING TO THIS CHAPTER.

a. Summary proceedings, construction of Laws, 1849, ch. 193, § 5, subd. 2.-This statute, referring to the case of an appeal taken from the proceedings before a justice of the peace to a county court, in summary proceedings, and which provides for a stay of the issuing of a warrant, pending the appeal, does not in any way apply to the case of proceedings commenced against a tenant solely on the ground that he refuses to give up the premises after the expiration of his term. The rule is otherwise where proceedings are commenced against the tenant, either by the three other classes of cases mentioned in the Revised Statutes. In such a case, the appeal of itself does not stay the power of the justice to issue the warrant against the tenant to enforce his judgment. Sage v. Harpending, 34 How. 1; S. C. 49 Barb. 166.

b. recovery of possession of land. The provisions of this chapter have no application to the proceeding provided for by the 10th title, ch. 8, part 3, of the Revised Statutes, which relate to summary proceed ings to recover possession of lands, with the single exception of the provisions of the 2d and 12th titles of that chapter. People ex rel. Williams v. Bigelow, 11 How. 83; Benjamin v. Benjamin, 5 N. Y. (1 Seld.), 383; Roach v. Cosine, 9 Wend. 227; Deuel v. Rust, 24 Barb. 438; Sims v Humphrey, 4 Denio, 185; People

ex rel. Nevins v. Willis, 5 Abb. 205; Bird sall v. Phillips, 17 Wend. 464; Freeman v Ogden, 17 Abb. 326 (n.); S. C. Aff'd, 40 N. Y. (1 Hand), 105; Evertson v. Sutton, 5 Wend. 281.

c. Proceedings under mechanics' lien law may be appealed from.-A proceeding commenced under Laws of N Y. 1852, 611; id. 1853, 809, before a justice, is an action, and from his judgment an appeal may be taken to the county court, under § 30 of the Code. People ex rel. Bendon v. County Judge of Rensselaer, 13 How. 398. See, also, Sullivan v. Brewster, 8 id. 207; S. C. 1 E. D. Smith, 681; Cronk v. Whittaker, 1 id. 647; McBride v. Crawford, id. 658, and numerous cases under the same law, reported in the same volume (1 E. D. Smith).

d. How much of the proceedings are stayed.-Only as much of the proceedings are stayed, on an appeal from a judgment under this law, as a judge of the court below, or a judge of the appellate court, shall order stayed. Van Cleve v. Abbatt, 3 Abb. N. S. 144.

e. Irregularities in New York marine court-review. - Irregularities in rendering judgment in this court can only be remedied by motion, or appeal from the judgment. They cannot be corrected on motion to set aside the proceedings had in such court,

after the filing of a transcript. McCunn v. Barnett, 2 E. D. Smith, 521; Saunders v. Hall, 2 Abb. 418. An appeal does not lie to the court of common pleas from the determination in summary proceedings to recover the possession of premises, instituted before a justice of the marine court in the city of New York. The only mode of reviewing such proceedings is by certiorari out of the supreme court. McIntyre v. Fernandez, 39 How. 121; S. C. 7 Abb. N. S. 214.

f. Justices' judgments-review.The only way in which the appellate court can obtain jurisdiction, is by a strict compliance with the requirements of the Code. Tullock v. Bradshaw, 6 N. Y. Leg. Obs. 318; S. C. 1 Code R. 53; McCafferty v. Kelly, 2 Sandf. 637; Thompson v. Hooper, 1 Code R. 103. The only mode of reviewing a justice's judgment, since the Code, is by appeal, which appeal is a mere substitute for certiorari. McIntyre v. Fernandez, 39 How. 121; S. C. 7 Abb. N. S. 214; Lerby v. Hannin, 15 How. 32; S. C. 5 Abb. 150. See, also, Whitney v. Bayard, 2 Sandf. 634.

g. Local courts, Buffalo.-Where an action is commenced in a justice's court in the city of Buffalo, an appeal may be had to the county court, and from thence to the

h.

Rochester.-Under § 65 of the city charter, the police justice may take cognizance of a complaint for violation of the ordinance regulating the keeping of lumber in the Erie basins. People ex rel. Parsons v. Bryan, 46 Barb. 355.

i. Mayor's court, Albany. - This court has still power to grant new trials, or to set aside a judgment on the merits, that has been entered on a referee's report. People ex rel. Arms v. Austin, 43 Barb. 313.

j. City court, Brooklyn.-The jurisdiction of this court is special, and limited; it cannot order a reference out of its own jurisdiction. Bonner v. McPhail, 31 Barb. 106. It has jurisdiction over the ferry companies, and an action may be commenced in it against them for a tort. Črofut v. Brooklyn Ferry Co. 36 Barb. 201. A motion may be made in this court to set aside a judgment for irregularity Richardson v. Bates, 23 How. 516.

§ 351. [301.] (Am'd 1849.) Existing laws repealed, and this chapter substituted.

All statutes now in force providing for the review of judgments in civil cases, rendered by courts of justices of the peace, by the marine court of the city of New York, by the justices' courts in the city of New York, by the municipal court of the city of Brooklyn, and by the justices' courts of cities, and regulating the practice in relation to such review, are repealed; and hereafter, the only mode of reviewing such judgments shall be an appeal, as prescribed by this chapter.

§ 352. [302.] (Am'd 1849, 1857, 1862, 1863, 1864, 1865.) By what courts judgments are to be reviewed.

When a judgment shall have been rendered by the general term of the marine court of the city of New York, or by a justice of a justice's court of that city, the appeal shall be to the court of common pleas for the city and county of New York.

The appeal from the general term of the marine court, prescribed here. in, shall be from an actual determination at such general term only, and shall be taken within twenty days after judgment by such general term. In the city of Buffalo, the appeals from the courts of justices of said city shall be