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after his appeal is perfected, cause a certified copy of the notice of appeal and of the judgment roll, or, if the appeal be from an order or any part thereof, a certified copy of such order and the papers upon which the order was granted, to be transmitted to the appellate court by the clerk with whom the notice of appeal is filed, the respondent may cause such certified copy to be transmitted by such clerk to the appellate court and recover the expenses thereof, as a disbursement on such appeal in case the judgment or order appealed from shall be in whole or in part affirmed, and this provision shall apply to all appeals heretofore taken where the appeal has not been dismissed in the manner provided by the rules of the appellate court.
$ 329. Upon an appeal from a judgment, the court may review any intermediate order, involving the merits, and necessarily affecting the judgment.
$ 330. 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, f 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.
$ 331. The appeal to the court of appeals under subdivision 2, of section 11 of this code, must be taken within sixty days after written notice of the order shall have been given to the party appealing: every other appeal allowed by the second and third chapters of this
title, must be taken within two years after the judgment shall be perfected, by filing the judgment roll.
$ 332. 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.
$ 333. [$ 19 Laws 1857.) An appeal may be taken to the court of appeals in the cases mentioned in section 11. When any of the courts mentioned therein shall, at general term, render judgment upon a verdict taken subject to the opinion of the court, the questions or conclusions of law, together with a concise statement of the facts upon which they arose, shall be prepared by and under the direction of the court, and shall be filed with the judgment-roll, and be deemed a part thereof, foi the purposes of a review in the court of appeals. [$ 20.] The provisions of the last preceding section shall apply to any judgment therein mentioned that has been heretofore rendered, and upon which an appeal has been brought and is now pending, or upon which an appeal shall hereafter be brought. When the return has already been filed with the clerk of the court of appeals, such statement shall be filed with him, and be deemed a part of such return.
$ 334. 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 five hundred 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.
$ 335. 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, or the appeal be dismissed, 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. Whenever it shall be made satisfactorily to appear to the court that since the execution of the undertaking the sureties have become insolvent, the court may, by rule or order, require the appellant to execute, file and serve a new undertaking as above; and in case of neglect to execute such undertaking within twenty days after the service of a copy of the rule or order requiring such new undertaking, the appeal may, on motion to the court, be dismissed with costs. Whenever it shall be necessary for a party to any action or proceeding to give a bond or an under. taking, with surety or sureties, he may in lieu thereof deposit with the officer or into court, as the case may require, money, to the amount for which such bond or undertaking is to be given. The court in which such action or proceeding is pending may direct what disposition shall be made of such money, pending the action or proceeding. In any case where, by this section, the money is to be deposited with an officer, a judge of the court, at special term or at chambers, upon the applica:
tion of either party, may, before such deposit is made, order it to be deposited in court instead of with such officer; and a deposit made pursuant to such order, shall be of the same effect as if made with such officer.
$ 336. If the judgment appealed from, direct the assignment or delivery of ducuments, 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. If the judgment appealed from, direct the execution of a conveyance or other instrument, the execution of the judgment shall not be stayed by the appeal, until the instrument shall have been executed and deposited with the clerk with whom the judgment is entered, to abide the judgment of the appellate court.
$ 338. If the judgment appealed from, direct the sale or delivery of possession of real property, the execution of the same shall not be stayed, unless a 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.
$ 339. 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 judgment 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.
$ 340. 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 deposite is made as provided in section 334 and notice thereof given.
$ 341. An undertaking upon an appeal shall be of no effect, unless it be accompanied by the affidavit of the