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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.
$ 342. 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.
$ 343. 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 three of section eleven
§ 344. An appeal may be taken to the supreme court, from the judgment rendered by a county court or by the mayor's courts, or the recorder's courts of cities.
An appeal may also be taken to the supreme court from any order affecting 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.
$ 345. 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.
§ 346. 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.
$ 347. Judgment upon the appeal shall be entered and docketed with the clerk in whose office the judg. ment roll is filed. When the appeal is heard in a county other than that where the judgment roll is filed, or is not from a judgment of a county court, the judgment upon the appeal shall be certified to the clerk with whom the roll is filed, to be there entered and docketed.
$ 348. In the supreme court, the superior court of the city of New York, and the court of common pleas for the city and county of New York, an appeal upon the law may be taken to the general term from a judgment entered upon the report of referees or the direction of a single judge of the same court in all cases, and upon the fact when the trial is by the court or referees. Such an appeal, however, does not stay the proceedings, unless security be given as upon an appeal to the court of appeals, and such security be renewed
as in cases required by section 335, on motion to the court at special term, or unless the court or a judge thereof, so order, which order may be made upon such terms, as to security or otherwise, as may be just, such security not to exceed the amount required on an appeal to the court of appeals. In the supreme court the appeal must be heard in the same manner as if it were an appeal from an inferior court.
No action shall be commenced upon any undertaking given or to be given in pursuance of the provisions of this section until ten days after the service of notice on the adverse party of the entry of the order or judgment affirming the judgment appealed from. And in case an appeal has been or shall be taken to the court of appeals from such order or judgment of affirmance, and security given according to law, so as to stay the issuing of executions; no action shall be commenced or recovery had upon any undertaking given or to be given in pursuance of the provisions of this section until after the final determination of such appeal.
§ 349. An appeal may in like manner, and within the same time, be taken from an order made at a special term by a single judge of the same court, or county, or a special county judge, “or by a recorder, or by any recorder's court of any city,” in any stage of the action, including proceedings supplementary to the execution, and may be thereupon reviewed in the following cases:
1. When the order grants or refuses, continues or modifies a provisional remedy ;
2. When it grants or refuses a new trial, or when it sustains or overrules a demurrer;
3. When it involves the merits of the action, or some part thereof, or affects a substantial right;
4. When the order in effect determines the action and prevents a judgment from which an appeal may be
5. When the order is made upon a summary application in an action after judgment and affects a substantial right.
$ 350. 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.
$ 351. 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 NewYork, 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 judgmeris shall be an appeal, as prescribed by this chapter.
$ 352. 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 justices' 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 herein shall be from an actual determination at such general term only, and shall be taken within twenty days after judgment by such general
In the city of Buffalo, the appeals from the
courts of justices of said city shall be to the superior court of said city. When rendered by any of the other courts enumerated in section three hundred and fiftyone, the appeal shall be to the county court of the county where the judgment was rendered. On such appeal when the amount of the claim or claims for which judgment was demanded by either party in his pleadings in the court below shall exceed fifty dollars, or when in an action to recover the possession of personal property, the value of the property as assessed and the damages recovered shall exceed fifty dollars, exclusive of costs, a new trial shall be had in the county court in the following appellate cases :
1. When the judgment was rendered upon an issue of law joined between the parties;
2. When it was rendered upon an issue of fact joined between the parties whether the defendant was present at the trial or not.
And when the appeal is to the superior court of Buffalo, in the cases in which, by the terms of this section, a new trial may be had, such new trial shall be had in the said superior court.
Provided, however, that the appellant may, in cases where the amount for which judgment is demanded by either party in his pleadings exceeds fifty dollars, or where, in an action to recover the possession of personal property, the value of the property as assessed, and the damages recovered shall exceed fifty dollars exclusive of costs, state in the notice of appeal that such appeal is taken upon questions of law only, in which case a new trial shall not be had in the appellate court, but the appeal shall be heard and determined in the same manner as if such amount or said value and damages were fifty dollars or ur der. Provided, however, that