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

§ 324. [272.] 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, 361.

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.

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

$ 326. [274.] 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, and 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.] 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.

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., 75, 76.

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 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 and will in such a case to 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.

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.

Where such service was made upon the party only who had not to give the court jurisdiction, HELD-that the appeal was a nullity. Bow, 3 Code Rep., 163. 5 Pr. R., 114.

See rules of court of appeals in appendix. 130, and notes to sections 332, 334, and 341.

appeared so as Tripp v. De

And Dresser v. Brooks, 2 Code Rep.,

$328. [276.] 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, and see rules of court of appeals in appendix.

§ 329. [277.] 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 judgment.

$ 330. [278.] 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 or 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 judgment.

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

§ 331. [279.] 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 judgment.

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, ard 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.

The code precludes the court from enlarging the time to appeal. Renouil v. Harris, 2 Code Rep., 71. Enos v. Thomas, 5 Pr. R., 361. Rowell v. McCormick, Ib., 337, and see Traver v. Silvernail, 2 Code Rep., 96.

A stay of proceedings on the judgment does not extend the time of appeal. Renouil v. Harris, supra.

§ 332. [280.] 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. Bentley v. Jones, 3 Code Rep., 37. 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.

SECTION 333.

CHAPTER II.

Appeals to the Court of Appeals.

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.] In what cases.-An appeal may be taken to the court of appeals, in the cases mentioned in section 11.

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 matter is decided after the first of July, 1848, whether the suit was commenced before or after that day, the right to appeal, the time within which the appeal must be taken, and the mode of procedure all depend upon the code. A different construction might give an appeal after the 1st of July, 1848, in a case where the right of appeal had been lost by the lapse of time before the code took effect, which could not have been intended by the framers of the code, per Brouson, Ch. J., in Mayor, &c., of New-York v. Schermerhorn, 1 Code Rep., 199. Spalding v. Kingsland, 1 Code Rep., 110. Seldon v. Vermilya, 1 Code Rep., 110. Butler v. Miller, 1 Code Rep., 110. Luke v. Gibson, 3 Pr. R., 420.

§ 334. [283.] On any appeal security must be given to pay costs and damages, not exceeding $250, or deposit made, unless waived. To render an appeal effectual for any purpose, a written undertaking must be executed on the part of the appellant, by at least two sureties, to the effect, that the appellant will pay all costs and damages which may be awarded against him on the appeal, not exceeding two hundred and fifty dollars; or that sum must be deposited with the clerk, with whom the judgment or order was entered, to abide the event of the appeal. Such undertaking or deposit may be waived by a written consent on the part of the respondent.

Where in an action against several defendants who defended separately the judg ment of the court below was that one defendant (Lynes,) recover against the plaintiff $2008.78, and that the other defendants recover against the plaintiff $412.93.There was but one judgment record. The plaintiff appealed to the court of appeals, and gave one undertaking to recover the two sums adjudged to the defendants, and another undertaking to pay all costs and damages which might be awarded.

against him on the appeal, not exceeding $250. On motion to dismiss the appeal on the ground that there should have been two undertakings in the sum of $250 each, one to Lynes and one to the other defendants, the court denied the motion, and held, That as there was but one judgment, though it was for two sums, and as the appellant had given security for both those sums, and an undertaking for all costs, &c., not exceeding $250, there had been a full compliance with the statute. Smith V. Lynes, 4 Pr. R., 209, and see note to section 33 -.

On an appeal from two orders, an undertaking in the sum of $250 is not sufficient, but undertaking may be amended. Schermerhorn v. Anderson, 2 Code Rep., 2.

Where an appellant, from a judgment directing the payment of money, gave an undertaking to pay the amount of the judgment and "all damages awarded against the appellant upon the appeal," but made no mention of "costs," it was held on motion to dismiss the appeal, that the undertaking did not comply with the requirement of this section, (334,) and that the appeal was not effectual for any purpose. Langley v. Warner, 1 Code Rep., 111. 3 Pr. R., 363, 364. Wilson v. Allen, 3 Pr. R., 369. Can the court allow a new undertaking to be filed nunc pro tunc ? Ib. Such a power was in effect, although not in express terms exercised by the supreme court in Harris v. Bennett, 3 Code Rep., where, on motion to dismiss an appeal for defect in the undertaking, the court, Edmonds, J., ordered a new undertaking to be filed. See section 339.

$335. [284.] On judgment for money; security to stay execution. If the appeal be from a judgment directing the payment of money, it shall not stay the execution of the judgment, unless a written undertaking be executed on the part of the appellant by at least two sureties, to the effect, that if the judgment appealed from, or any part thereof, be affirmed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant, upon the appeal.

The undertaking should state the amount of the judgment appealed from. Harris v. Bennett, 3 Code Rep., 23. See section 339.

§ 336. [285.] If judgment be to deliver documents, they must be deposited. If the judgment appealed from direct the assignment or delivery of documents, or personal property, the execution of the judgment shall not be stayed by appeal, unless the things required to be assigned or delivered, be brought into court, or placed in the custody of such officer or receiver as the court shall appoint, or unless an undertaking be entered into on the part of the appellant, by at least two sureties, and in such amount as the court, or a judge thereof, or county judge shall direct, to the effect that the appellant will obey the order of the appellate court, upon the appeal.

$337. [286.] If to execute conveyance, it must be executed and deposited.—If the judgment appealed from, direct the execution of a conveyance or other instrument, the execution of