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thirty-seven, and three hundred and thirty-eight, where it would otherwise, according to those sections, exceed that sum.
The amendment is the addition of the part in italic.
In using the word " perfected" the second rule of the court of appeals follows this section of the code, and although there is room for doubt, we think an appeal is “perfected” within the meaning of the code when the proper undertaking, with an affidavit of the sureties, has been executed, and notice of the appeal has been served on the adverse party, and on the clerk with whom the judgment or order is entered; and the 20 days under rule 2, and the 40 days under rule 7 commence running from that time. Thompson v. Blanchard, 4 Pr. R., 210.
$ 340. [289.] Undertakings may be in one instrument or several.—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 deposit is made as provided in section 334, and notice thereof given.
The court will impose costs for any disregard of this section. Beech v. South. worth, 1 Code Rep., 99.
$ 341. [290.] Security to be approved and to justify.-An undertaking upon an appeal shall be of no effect, unless it be accompanied by the affidavit of the 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 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.
This section is substituted for section 290 in the code of 1848. The code of 1848, instead of requiring the undertaking to be accompanied by an affidavit of the sureties, required it to be approved by a judge, and it was held in one reported case that it was not essential to the validity of an undertaking, that it be proved or acknowledged; all that the code required was that it should be approved by a justice of the court, or county judge. Nor was it necessary, in the first instance, that the sureties should justify. Wilson v. Allen, 3 Pr. R., 363. But in another case under the code of 1848, it was held that the undertaking must be acknowledged. Beech v. Southworth, 1 Code Rep., 99. And the supreme court in the first judicial district, made a rule never to receive or allow to be filed any undertaking under the code, unless the same was duly proved or acknowledged in the manner prescribed by law for the proof or acknowledgment of deeds of real estate, 1 Code Rep., 79, and the same is now provided for by the 76th rule of the rules of the supreme court of 1849.
Where the notice of justifying is served by mail, it must be double time, or ten days. Dresser v. Brooks, 5 Pr. R., 75, 76.–Thus where the respondent on the 7th of June served by mail a notice of exception, which was received by the appellant on the 10th of June, the appellant on the same day (the 10th) gave notice by mail that the sureties would justify on the 17th, and the sureties did justify on that day. The court on motion, held, that the respondent was irregular, but on ground being shown therefor, extended the time for the sureties to justify.
The sureties need only justify to double the amount of the judgment. Rich v. Beekman, 2 Code Rep., 63. The affidavit may be filed nunc pro tunc. Ib. The exception should be to the "sureties," not to the undertaking. Young v. Colby, ib., 68.
$ 342. [291.] Perishable property may be sold, notwithstanding appeal.-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.
Where a surrogate decree is appealed from to the supreme court, and the decision of the supreme court is appealed from to the court of appeals, the surrogate's court is the court below, within the meaning of this section. Anon, 3 Code Rep., 69.
§ 343. [292.] Undertaking must be filed.—The undertaking must be filed with the clerk, with whom the judgment or order appealed from was entered.
Appeal to the Supreme Court from an inferior Court.
345. Security must be given as upon appeal to the court of appeals.
347. Judgment on appeal where entered and docketed. § 344. [293.] In what cases.—An appeal may be taken to the supreme court, from the judgment rendered by a county court, or by the mayors' courts, or the recorders' courts of cities. But no appeal shall be allowed from a judgment of a county court in a case arising in a justice's court, unless the party desiring to appeal, shall, within thirty days after notice of the judgment, present to a judge of the supreme court the return of the justice, or a copy thereof, with the decision of the county court, and obtain from such judge a certificate that he has examined the case, and in his opinion an appeal to the supreme court should be allowed.
The provision respecting appeals in cases arising in justices' courts resembles very closely a provision in laws of 1836, cap. 526, p. 794, and under that statute it
was held (22 Wend., 627) that if the certificato was not obtained within thirty daysafter notice of the judgment, the right of appeal was irrevocably lost. There is no express power given by the code to enlarge the time for giving the certificate.
Does any such power exist ?
The notice of the judgment must be in writing (Code, s. 408). A verbal notice would not be sufficient. It is said to have been decided by Mr. Justice Harris in an unreported case, that even if the party were present when the judgment was entered, he will not be deemed to have notice within the meaning of this section until a writ. ten notice be served on him.
It seems the appeal would be a nullity if this certificate were given after the expiration of the thirty days, and that the defect would not be cured by the respondent moving to dismiss the appeal. Seymour v. Judd, 2 Coms., 464.
In respect to causes originating in a justice's court, the supreme court has merely an appellate jurisdiction. It can only review and correct the decisions of the county court actually made, after a hearing of both parties.
It has no power to review a judgment rendered in the county court by default. Dorr v. Birge, 5 Pr. R., 323.
No appeal can be taken to the supreme court from the order of the county court reversing the judgment of a justice of the peace, where the county court has ordered a new trial, for the reason that the county court does not give any final judgment, and there is no provision for the entry of a judgment in such a case in the county court. Bennett v. Harkness, 2 Code Rep., 100. And see supreme court rule 32.
§ 345. [294.] Security must be giren, as upon appeal to court of appeals.-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. [295.] Appeals, where heard.— 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.
An appeal from a surrogale's court, admitting, or refusing to admit, a will to probate, should, in the first instance, be heard at general term. Watts v. Aikin, 4 Pr. R., 439.
§ 347. [296.] Judgment on appeal, where entered and docketed.-Judgment upon the appeal shall be entered and docketed with the clerk in whose office the judgment 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.
Appeals in the supreme court, and the superior court and court
of common pleas of the city of New-York, from a single judge,
to the general term. Section 348. Appeals from circuits and special terms to same court in general
term. Security on appeal. 349. Orders by a single judge, may be appealed from in certain cases.
350. Orders at chambers to be entered before appeal. $ 348. [297.] (Amended.)— Appeals from circuit and special term to same court in general term.-Security on appeal.In the supreme court, the superior court of the city of NewYork, and the court of common pleas for the city and county of New-York, an appeal may be taken to the general term from a judgment entered upon the report of the referees or the direction of a single judge of the same court, in all cases. Such an appeal, however, does not stay the proceedings, 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.
The section, before amendment, was as follows:
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 direction of a single judge of the same court. Security must be given upon such appeal, in the same manner as upon an appeal to the court of appeals. In the supreme court, the appeal shall be heard in the same manner as if it were an appeal froin an in. ferior court.
See Supreme Court Rule, 30.
This section, before amendment, was limited to appeals upon matters of law. Droz v. Oakley, 2 C. R., 83.
An appeal would not, under code of 1849, lie, in the first instance to the general term, on a case containing questions of fact alone. Application had to be made, in the first instance, at the special term. Collins v. Alb. f Sch. R. R. Co. 5 Pr. R., 435; Hastings v. McKinley, 3 Code Rep., 10.
In Jones v. Kip, 1 Code Rep., 119, the New York common pleas held, that there could be no appeal from a judgment entered for want of an answer ; but in Raynor v. Clark, 3 Code Rep., 230, the supreme court held, that an appeal might be taken from such a judgment, on the ground that the complaint did not state facts sufficient to constitute a cause of action.
$ 349.  (Amended.)--Orders by a single judge may be appealed from in certain cases.-An appeal may in like manner, and within the same time, be taken from an order made at a special term, or by a single judge of the same court, or a county or special county judge, 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 a provisional remedy ; or grants, refuses, or dissolves an injunction ;
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;
4. When the order in effect determines the action, and prevents a judgment from which an appeal may be taken ;
5. When the order is made, upon a summary application in an action after judgment, and affects a substantial right.
This section, before amendment was as follows:
An appeal may, in like manner, and within the same time, be taken from an order made by a single judge of the same court, and may be thereupon reviewed, in the following cases :
1. When the order grants or refuses a provisional remedy.
3. When the order decides a question of practice which in effect determines the action without a trial, or precludes an appeal.
4. When the order is made, upon a summary application in an action after judgment, and affects a substantial right.
The justices of the second judicial district, took into consideration the question as to what cases are appealable under this section, with a view to settle the practice in that district, and stated as their conclusions :
“In the first place we are of opinion, that this section relates only to appeals from orders and judgments in civil actions.' This is apparent, as well from the language of the section, as the language of section 323, which is the first section of the title, and declares that the only inode of reviewing a judgment or order, in a civil action, shall be that prescribed by this title ;' and section 8, which assigns the second part of the code 'to civil actions commenced in the courts of this State,' &c.
" It follows from this view, that appeals in special proceedings are not regulated by section 349, but depend upon the pre-existing laws and practice.
"Consequently, where the proceeding is of an equitable nature, such as, under the former practice, would have come within the cognizance of a vice-chancellor, and was subject to appeal to the chancellor, in such cases an appeal now lies from a decision of a single justice to this court at a general terin. This of course includes the applications in regard to the removal of trustees, or the disposition of trust estates which have been before us.
But where the special proceeding is of such a nature as not to fall within the jurisdiction of the former court of chancery, then, as a general rule, no appeal lies to the general term from the decision of the special term. The exceptions are where such appeal may be expressly given by statute, or existed according to the former practice of the supreme court. This rule is analogous to the rule formerly prevailing in the court of chancery and the supreme court, the powers of which are transferred to this court by the constitution and judiciary act of 1847.
The New-York common pleas have made rules having reference to the review of decisions of motions by a single judge. See, rules in appendix.
No appeal lies from the decision of a judge in granting or refusing an ex parte