IV. SERVICE OF THE NOTICE OF APPEAL. a. Notice may be served on clerk of court.- Where a judgment of the marine court has been rendered, from which an appeal is taken, notice of such appeal may be served on the clerk of said court. There is no necessity to serve notice on the justices. Irwin v. Muir, 13 How. 409; S. C. 4 Abb. 133. Notice may also be served on the respondent's attorney, if the respondent cannot be found after diligent inquiry. Loescher v. Nordmeyer, 13 How. 146; S. Č. 3 Abb. 244. The costs may also be paid to said clerk. Ib. b. Where the service may be made. The service of notice of appeal may be made upon the party any where, either in or out of the county in which the justice resides. Daniels v. Rogers, 36 How. 230. See, also, Holmes v. Carley, 31 N. Y. (4 Tiff.), 291; S. C. 32 Barb. 440; Union Furnace Co. v. Shepherd, 2 Hill, 413; Douw v. Rice, 11 Wend. 178. c. Example of improper service.The notice of appeal was served on respondent's attorney, and subsequently taken back to be served on another person. Held, that the first delivery was no service. Earll v. Chapman, 3 E. D. Smith, 216. d. Proof of non-residence.- It is no proof of the non-residence of the respondent, where it is shown that she could not be found at her residence, nor could it be ascertained where she was. Duffy v. Morgan, 2 Sandf 631. e. Admission of due service. — An admission of due service of a notice of appeal was given. Held, that such admission waived the objection that such notice was not served in time. Struver v. Ohio Insurance Co. 16 How. 422; S. C. 9 Abb. 23. V. WHAT NECESSARY TO RENDER THE APPEAL EFFECTUAL. a. Need be no service on respond- | ent or his attorney.-There is no provision of law or practice requiring the undertaking required by §§ 354, 356 of the Code to be served on the respondent or his attorney. Jackson v. Smith, 16 Abb. 201; S. C. 25 How. 476. b. Deposit necessary.-The undertaking or deposit required by this section is absolutely necessary to render the appeal effectual in any case; but this was designed to be a distinct and different undertaking from, and not intended as a substitute for, the undertaking to be given to stay execution, required by sections 355, 356 of the Code. Onderdonk v. Emmons, 17 How. 545; S. C. 2 Hilt. 504; S. C. more fully reported, 9 Abb. 187. See, also, Conway v. Hitchins, 9 Barb. 378. c. Undertaking given under this section, damages, appeal.-The undertaking given under this section of the Code, to pay "all costs, extra costs, and disbursements awarded against the appellant in the VI. IN -- a. Both parties may appeal. The same judgment may be appealed from by both parties. Glassner v. Wheaton, 2 E. D. Smith, 352; Beach v. Raymond, id. 496; Robbins v. Codman, 4 id. 316. b. Party must appeal, if he would have relief.-The respondent can have no relief on an appeal taken by the other party. In other words, on an appeal taken by one party, the other can have no relief. Glassner v. Wheaton, supra. See, also, Beach v. Raymond, 2 E. D. Smith, 496; Rooney v. Second Avenue Railroad Co. 18 N. Y. (4 Smith), 368. c. Time of serving notice of appeal. It is not necessary to docket the judgment be first action, as well as costs and damages that may be awarded against him upon appeal," in case the judgment shall be affirmed, does not bind the said sureties for the payment of the damages recovered by the judgment appealed from. Onderdonk v. Emmons, supra. d. When sureties' liability fixed.The moment the judgment of the court below is affirmed, the liability of the sureties becomes fixed for the costs, etc. Onderdonk v. Emmons, 17 How. 547; S. C. 2 Hilt. 504; 9 Abb. 187. e. Undertaking-amendment.- The court is not authorized, under § 173 of the Code, to amend an undertaking on appeal, without the consent of the sureties; it may, however, be done if they consent. Langley v. Warner, 1 N. Y. (1 Comst.), 606; S. C. 3 How. 363; 1 Code R. 111; Wilson v. Allen, 3 How. 369; consult, however, Wood v. Kelly, 2 Hilt. 334; Irwin v. Muir, 13 How 409; S. C. 4 Abb. 133. GENERAL. fore serving notice of appeal; it may be done as soon as it is rendered by the justice. Griswold v. Van Deusen, 2 E. D. Smith, 178. The day on which the justice's judgment is entered is to be excluded, and the last day on which the notice may be served is to be included. Phelan v. Douglass, 11 How. 193, and cases cited; Young v. Whitcomb, 46 Barb. 615; the case of Gallt v. Finch, 24 How. 195, distinguished. d. Delay in service.-Unless the notice of appeal is served within twenty days after judgment, the right to appeal is gone. It is not possible to supply the omission. Purdy v. Harison, 6 N. Y. Leg. Obs. 393; S. C. 1 Code R. 54, sub nom. Purdy v. Harrison. See, also, Tullock v. Bradshaw, 6 N. Y. Leg. | ruled on the trial. Sullivan v. McDonald, 2 e. Objections to notice-when and where taken.-The proper time to raise any objection to the regularity of the notice, is when the motion to dismiss the appeal is heard. It cannot be considered on the argument of the appeal. Mills v. Shult, 2 E. D. Smith, 139. See, also, Nye v. Ayres, 1 id. 533; Partridge v. Thayer, 2 Sandf. 228. The motion should be made at special term. Griswold v. Van Deusen, 2 E. D. Smith, 178. f. General appearance, waiver of right to have appeal dismissed.Where the respondent puts in a general appearance in the appellate court, and notices the appeal for argument, these are positive acts of submission to that tribunal, wholly inconsistent with a claim that the appeal was not brought in time. In such a case, he cannot have the appeal dismissed on these grounds. Pearson v. Lovejoy, 35 How. 193; S. C. 53 Barb. 407. g. Justice's fee for the return. Where an appeal is taken from a justice's judgment, his fee for making the return must be paid at the time of the service of the notice of appeal. The appeal may be dismissed, where the return is not made in consequence of the non-payment of such fee. Van Heusen v. Kirkpatrick, 5 How. 422; S. C. 1 Code R. N. S. 74. h. Notice must state grounds on which party appeals.-In this case the affidavit did not state the grounds on which the party appealed, although it did state various objections as having been taken and over missed unless the notice states the specific ground on which it is taken. Schwartz v. Bendel, 2 E. D. Smith, 123; Cole v. Bell, 48 Barb. 194. See, also, Derby v. Hannin, 15 How. 32; S. C. 5 Abb. 150; Cristman v. Paul, 16 How. 17; contra, Webster v. Hopkins, 11 id. 140. i. Single ground in notice, the whole case may be reviewed. The rule is well settled that when the notice of appeal states a single ground on which the appeal is founded, that fact confers jurisdicdiction on the county court to examine the whole case. Forman v. Forman, 17 How. 255; contra, Derby v. Hannin, 15 id. 32; S. C. 5 Abb. 150; Cristman v. Paul, 16 How. 17; Bush v. Dennison, 14 How. 307. j. Example of sufficient notice.Where the notice alleges that the judgment is against law and evidence, this is a sufficient compliance with the requirements of section 353 of the Code. Fowler v. Westervelt, 40 Barb. 375; S. C. 17 Abb. 59. k. When is the appeal perfected.In order that the appeal from a justice's judgment may be perfected, notice of appeal must be served on the justice and on the respondent (or his attorney, if he be a nonresident). Unless all the requirements of the statute are complied with, the appeal is not perfected, and execution may be issued on the judgment. People ex rel. Gemmill v. Eldridge, 7 How. 108. See, also, Schermerhorn v. Goliefe, 1 Code R. N. S. 290. Costs of the action in the court below must be paid by the appellant, before the appeal is perfected to the county court. Griswold v. Van Deusen, 2 E. D. Smith, 178. § 355. [305.] (Am'd 1849, 1863.) Security to stay execution. When, by the terms of section 352, the appellant is entitled to a new trial in the appellate court, he shall, at the time of taking his appeal, and in all other cases, if he desires a stay of execution of the judgment, give security, as provided in the next section. a. Undertaking must be given. An appeal which is not followed up by the undertaking required by the Code, §§ 355, 356, 357, does not operate as a stay of any further proceedings which the plaintiff might elect to pursue, in order to enforce the collection of the judgment. Conway v. Hitchins, 9 Barb. 378. b. Justice's judgment not superseded by appeal.-An appeal from a justice's judgment to the county court does not supersede the judgment in the court below. The county court does not proceed de novo with the trial, as was the case on an appeal before the Code. Pruyn v. Tyler, 18 How. 331. But now a new trial is had in the county court, in some cases. See § 352. See, also, Yeaton v. United States, 5 Čranch, 281, 283; Conley v. Palmer, 2 N. Y. (2 Comst.), 182. c. Judgment affirmed or reversed. The appellate jurisdiction is merely of errors in the court below; the judgment is merely affirmed or reversed, and the whole proceedings are like those formerly had on certiorari. Pruyn v. Tyler, supra. Changed by statute. See § 352, ante. See, also, Whitney v. Bayard, 2 Sandf. 634. d. Appeal must be on statutory grounds.-The only grounds on which proceedings can be stayed by the appellate court are those prescribed by the statute. Hawkins v. Mayor, etc. of New York, 5 Abb. 344. e. When the question as to whether the provisions of the Code have been complied with can arise. This question can only arise upon a motion to have the proceedings of the opposite party set aside by a motion made subsequent to the giving of the security. Dyckman v. Valiente, 28 How. 346; S. C. 43 Barb. 131; 19 Abb. 130 f. What will operate to supersede a stay. In order that the stay may be superseded, there must be a formal judgment, entered by the clerk. A stay of proceedings is not removed for the purposes of an appeal, so that the respondent will be enabled to issue execution upon the judgment appealed from, by a judgment on the appeal announced orally, and entered in the minutes. Bowman v. Tallman, 28 How. 482; S. C. 19 Abb. 84; 2 Rob. 632; 3 id. 633. See, also, Lentilhon v. Mayor, etc. of New York, 1 Code R. N. S. 111; S. C. 3 Sandf. 721. g. Stay of proceedings violated.After a party's proceedings have been stayed, with the exception that leave has been reserved to him to enter judgment, it will be a violation of the stay, and a nullity, if he serve a notice of the entry of judgment. This will not limit the time within which an appeal can be taken. White v. Klinken, 16 Abb. 109. h. Effect of the stay. All further proceedings upon the judgment appealed from are stayed by the giving of the undertaking, but those already had are not affected by it; e. g., if execution has been issued, and a levy made before the appeal is perfected, no sale can be had pending the appeal. But the levy is not discharged by the appeal, and the appellant cannot have the goods returned to him. Smith v. Allen, 2 E. D. Smith, 259. § 356. [306.] (Am'd 1849.) Form of undertaking. The security shall be a written undertaking, executed by one or more sufficient sureties, approved by the county judge, or by the court below, to the effect that if judgment be rendered against the appellant, and execution thereon be returned unsatisfied, in whole or in part, the sureties will pay the amount unsatisfied. a. Who may issue the execution. After the judgment has been docketed with the clerk of the court, the execution thereon should be issued by the party, or his attorney, not by the county clerk. Brush v. Lee, 34 How. 283; S. C. 36 N. Y. (9 Tiff.), 49; 3 Abb. N. S. 204; 1 Trans. App. 66; 18 Abb. 399. b. When the stay ceases. When the judgment is affirmed the stay ceases, and after the formal judgment has been entered by the clerk, the respondent may proceed to collect his judgment. Onderdonk v. Emmons, 2 Hilt. 504; S. C. 9 Abb. 187; 17 How. 545. See, also, Bowmam v. Tallman, 28 How. 482; S. O. 19 Abb. 84; 2 Rob. 632; 3 id. 633; Lentilhon v. Mayor, etc. of New York, 1 Code R. N. S. 111; S. C. 3 Sandf. 721. c. When the liability of the sureties commences. When sureties have entered into an undertaking under this section (356), their liability does not arise until judgment has been affirmed and perfected, and execution thereon has been returned unsatisfied. Onderdonk v. Emmons, 2 Hilt. 504; S. C. 9 Abb. 187; 17 How. 545. d. What the undertaking need not include.-It is not necessary that the undertaking required by this section should include that required by § 354. Sperling v. Levy, 1 Daly, 95; contra, Brush v. Lee, 18 Abb. 399; S. C. Aff'd, 36 N. Y. (9 Tiff.), 49; 34 How. 283; 3 Abb. N. S. 204; 1 Trans. App. 66: 33 How. 617 (n.) e. Action on undertaking-instrument valid although no consideration expressed.-The appeal bond is valid, provided it contains the requisite stipulations, notwithstanding it does not express a consideration, and is not under seal. The statute of frauds does not apply to such instruments. No form of the undertaking is prescribed by the Code. Doolittle v. Dininny, 31 N. Y. (4 Tiff.), 350; Thompson v. Blanchard, 3 N Y. (3 Comst.), 335; S. C. 2 N. Y. (2 id.), 561; 4 N. Y. (4 id.), 303. See, also, Sperling v. Levy, 1 Daly, 95. f. Extent of sureties, liability.Where a justice's judgment is appealed from to the county court, and an appeal bond is executed conditioned that "if judgment shall be rendered against the appellant, and execution thereon be returned unsatisfied in whole or in part, the obligors will pay the amount unsatisfied," and said judgment is reversed by the county court, and an appeal to the supreme court is had, which reverses the judgment of the county court, and affirms the justice's judgment with costs, the sureties will be held liable not only for the amount of the judgment in the county court, but also for the amount recovered in the highest court. Smith v. Crouse, 24 Barb. 433. g. Error in judgment-invalid undertaking. Where a judge, in the exercise of his discretion, approves an undertaking, which proves to be invalid, will lie against him. Chickering v. Robinson, 3 Cushing (Mass. R.), 543. § 357. [307.] (Am'd 1849.) Execution, how stayed. The delivery of the undertaking to the court below shall stay the issuing of execution; or if it have been issued, the service of a copy of the undertaking, certified by the court below, upon the officer holding the execution, shall stay further proceedings thereon. a. Bad faith.-An appeal was perfected after execution had been issued; before the constable had made his levy a copy of the undertaking was served upon the plaintiff, but not upon the constable. After the receipt of the undertaking, the plaintiff directed the constable to go on with the levy, which he did. Held, that the levy having been made in bad faith, must be set aside. Jones v. McCarl, 7 Abb. 418. b. Stay of proceedings - mandamus.-Where a temporary mandamus is awarded, and an appeal on the question is taken to the court of appeals, all proceedings on the judgment are stayed. After the appeal is perfected, if a mandamus issue, it will be set aside as irregular. People ex rel. Thomas v. Commissioners of Highways of Milton, 25 How. 257. c. Amount of security regulated by the Code. -The Code regulates the amount of the security to be given on appeal from an order granting a new trial, and proceedings will not be stayed on any other terms. Dykeman v. Valiente, 28 How. 346; S. C. 43 Barb. 131; 19 Abb. 130, sub nom. Dyckman v. Valiente. § 358. [308.] (Am'd 1849.) In case of death of justice, unaertaking to be filed. Where, by reason of the death of a justice of the peace, or his removal from the county, or any other cause, the undertaking on the appeal cannot be delivered to him, it shall be filed with the clerk of the appellate court, and notice thereof given to the respondent, or his attorney or agent, as provided in section 354; it shall thereupon have the effect as if delivered to the justice. § 359. [309.] (Am'd 1849, 1852, 1865, 1866.) Filing notice of appeal, instead of service. When, by reason of the death of a justice of the peace, or his absence from the county, or any other cause, the notice of appeal cannot be served as provided by section 353, it may be served by leaving the same with the clerk of the county. § 360. [311.] (Am'd 1849, 1852, 1862, 1865, 1866.) Return, when and how made and compelled. The court below shall thereupon, after ten days, and within thirty days after service of the notice of appeal, make a return to the appellate court of the testimony, proceedings and judgment, and file the same in the appellate court. The return may be compelled by attachment. But no justice of the peace shall be bound to make a return unless the fees prescribed by the last section of this chapter be paid on the service of the notice of appeal; provided, however, that in cases where the amount for which judgment is demanded by either party in his pleadings in the court below exceeds fifty dollars, or where the value of the property recovered, as appears from the verdict or judgment, shall exceed fifty dollars, the testimony need not be returned; but in such case the court below shall return the process by which the action was commenced, with the proof of service thereof, and the pleadings or copies thereof, the proceedings and judgment, together with a brief statement of the amount and nature of the claim or claims litigated by the respective parties, and in all cases the notice of appeal shall be annexed to the return; but in cases where the appellant shall, in accordance with the provisions of section 352 of this act, state in the notice of appeal, that such appeal is taken upon questions of law only, the court below shall return to the appellate court the testimony, proceedings and judgment. I. THE RETURN, WHEN AND HOW MADE. a. Responsibility of the justice. b. Rule with regard to return.-The return should set forth the day whereon judgment was rendered, the date of the trial, the day issue was joined, the adjournments to what time, and the date when the process was returnable. Peters v. Diossy, 3 E. D. Smith, 115. The pleadings, as well as the evidence, must be contained in the return. Roulston v. McClelland, 2 id. 60. See, also, Smith v. Van Brunt, id. 534. All the testimony received by the justice on the trial must be contained in the return to an appeal under the Code, Orcutt v. Cahill, 24 N. Y. (10 Smith), 578; Ogden v. Sanderson, 3 E. D. Smith, 167. See, however, Low v. Payne, 4 N. Y. (4 Comst.), 247; Prosser v. Secor, 5 Barb. 607. The return of the court below must contain all the testimony and proceedings. Where the return is not sufficient to present the whole case, the parties must call for a further return. McCafferty v. Kelly, 2 Sandf. 637. See, also, Belshaw v. Colie, 1 E. D. Smith, 213; S. C. 3 Code R. 184. The appeal will be dismissed where no notice of appeal is attached to the return. Cabre v. Sturges, 1 Hilt. 160; Bush v. Dennison, 14 How. 307. Unless the contrary distinctly appears, it will be presumed, where the justice's return sets forth evidence in detail, that the whole testimony is given, it will not be presumed that the justice had evidence before him on the trial which he does not embody in the return. Orcutt v. Cahill, 24 N. Y. (10 Smith), 578; Hance v. Cayuga and Susquehanna Railroad Co. 26 N. Y. (12 Smith), 428; Calligan v. Mix, 12 How. 495 (the head note in this case is incorrect; 13 How. 96, corrects it). See, however, Low v. Payne, 4 N. Y. (4 Comst.), 247; Prosser v. Secor, 5 Barb. 607. The return of the justice must show what judgment was rendered; unless this is done the appeal will be dismissed with costs. Woodside v. Pender, 2 E. D. Smith, 390; contra, Klenck v. DeForest, 3 Code R 185. c. Justice need not wait one hour. It is not necessary that the justice should wait one hour after the time mentioned in the summons, before hearing the case; this, however, is the rule only in justices' courts in the city of New York. Klenck v. DeForest, supra. It d. Return of the justice cannot be impeached by affidavit.-The Justice's return is conclusive as to the statements contained in it; it cannot be impeached or contradicted by affidavit. The only way that the return can be corrected is by motion to the court. Spence v. Beck, 1 Hilt. 276; Kil patrick v. Carr, 3 Abb. 117; Mitchell v. Menkle, 1 Hilt. 142; Kelly v. Brower, id. 514. e. Return of the constable conclusive. The return of the constable, that he served the summons, is conclusive. gives the justice jurisdiction to proceed with the cause at the hour when the summons was returnable; and it cannot be impeached or brought in question on an appeal from the judgment. If the constable did not serve a copy of the summons, the defendant must action for a false return. Haughey v. Wilson, seek his remedy against the constable by an 1 Hilt. 259. But in some of the cases it is be questioned, if such point is raised as error held that upon an appeal the false return may in fact. See the following cases: Col. Insurance Co. v. Force, 8 How. 353; Putnam v. Man, 3 Wend. 202; Allen v. Martin, 10 id. 300; Elwell v. McQueen, id. 519; Case v. Redfield, 7 id. 398; Beaty v. Perkins, 6 id. 382; Brintnall v. Foster, 7 id. 103. f. Original return, or certified copy must be submitted.-The rule in regard to appeal cases in the common pleas, from the marine or justices' courts, is not to decide appeal cases except upon the original return or a certified copy. If the return is lost, the parties may consent that the justice sign the copy submitted and add the pleadings, or obtain a new return. Unless the papers are properly submitted, the appeal will be dismissed. Smith v. Van Brunt, 2 E. D. Smith, 534. g. Reasons held not sufficient to set aside the return.-The averment that it is untrue, or incorrect and defective in its |