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order. Savage v. Relyea, 3 How. Pr. R., 276, 1 Code Rep., 42. Nicholson v. Dunham. 1 Code Rep., 119.

Nor from an order refusing leave to reply, after the time for replying had past. Thompson v. Starkweather, 2 Code Rep., 41.

Nor from an order refusing to strike out a pleading alleged immaterial, impertinent or scandalous averments, because it cannot involve the merits. Whitney v. Waterman, 4 Pr. R., 315.

Except where it appears that the matter struck out involves the merits. Ib.

Nor from an order refusing to strike out matter as irrelevant and redundant in a pleading. Bedell v. Stickles, 3 Code Rep., 105.

An order of the special term opening a default, or letting in a party to defend, is not appealable, inasmuch as it does not involve the merits. Bolton v. Depeyster, 3 Code Rep., 141.

An order of the special term directing the board of trustees appointed by the late court of chancery to be prosecuted, is not appealable, as it neither involves the merits nor is a provisional remedy. Re White, 3 Code Rep., 141.

An order "involves the merits," means all orders in the progress of a cause, except such as relate merely to matters resting in the discretion of the court, or to mere matters of practice or form of proceeding. An application for the pecessary process to enforce the judgment of the court involves the merits. Cruger v. Douglas, 2 Code Rep., 123.

An order of the special term, granting a new trial and assessment of damages under the act of May 7, 1819, relating to Plank Roads, is not appealable. Re Cooperstown, &-c., Plank Road Co., 3 Code Rep., 148.

Nor an order in the discretion of the court. See, St. John v. West, 3 Code + Rep., 85.

An order deuying a motion " to modify an order referring the cause back to the referee and remove the referee,” is not an appealable order. Perry v. Moore, + Ib. 221.

But an appeal may be taken to the general term from an order made at chambers. Nicholson v. Dunham, 1 Code Rep., 119.

An appeal lies to the general term from a judgment entered upon the report of a referee by the direction of a single judge of the court, although the judge did not pass directly upon the amount to which the party recovering was entitled.

Upon such appeal, the correctness of the report and decision of the referee, the judgment entered thereon, and a prior order made by the judge declaring the answer of the defendants frivolous, and directing judgment for the plaintiff, are properly before the court. Raynor v. Clark, 3 Code Rep., 230.

On appeals from orders no security is required. Beach v. Southworth, 1 Code Rep., 99. Nicholson v. Dunham, ib. 119. Allen v. Johnson, 2 Sand. S. C. R., 629.

Notice of appeal from an order made at special term must be served both on the clerk, and on the adverse party within ten days after written notice of the order, or the appeal will be quashed. Westcott v. Platt, 1 Code Rep., 100.

The code positively precludes the court from enlarging the time for bringing an appeal. Renouil v. Harris, 2 Code Rep., 71.

The decision of a demurrer is not an order but a judgment. Bentley v. Jones, 3 Code Rep., 37, 4 Pr. R., 335. King v. Stafford, 5 Pr. R., 30.

An appeal under this section is the proper mode of reviewing an order for an attachment issued by a county judge. Conklin v. Dutcher, 1 Code Rep., N. S., 49.

The costs of an appeal under this section, are in the discretion of the court. Sarage v. Darrow, 2 Code Rep., 57.

An appeal under this section, is a motion within the definition of a motion in section 401. 16.

If costs are not awarded, on the decision of an appeal, none can be allowed. Ib.

As to reviewing orders in suits, pending when the code took effect, see 1 code Rep., 61.

When then may an order made at special term be said to " involve the merits ?

First, then: What is meant by the word “merits," as here used ? If taken in its ordinary acceptation, it would mean, the abstract justice of the case, without any regard to technical or arbitrary rules of law; but to give that signification to the word here, would in effect deny an appeal in many if not in most cases where a fixed rule, or a well settled principle of law had been violated, and allow it in those

cases where a judge had been called upon to exercise a sound discretion in settling the equities of the parties, in regard to soine interlocutory matter, thus reversiog all the previous theory and practice of our courts. A better legal definition I apprehend, would be, to consider it as meaning the combined questions of law and of fact presented by the pleadings in the case. This, however, although perhaps the best general definition that can be given, is obviously defective, and will hardly do iu the present case, as will hereafter appear. Again: The precise meaning of the word is involve,” in this sentence, presents a difficulty scarcely less embarrassing. If considered as it might be, without doing violence to language, as synonymous with the word effect, then it is apparent that the provision is a very broad one, giving a right of appeal in many cases where it never existed before ; as it could easily be shown that many orders upon a mere matter of practice, or such as rest entirely upon the discretion or favor of the conrt, would have an effect more or less, upon the ultimate disposition or issues in the case; as for instance, an order opening a default regularly taken.

On the other hand, if we give to the word " involve " its more exact and literal signification, as synonymous with comprise or embrace, the provision becomes extremely restricted and confined, and would have, if we adhere to the definition of the word “merits" given above, scarcely any practical operation whatever, as in that view it would only reach those few cases in which the order embraced, that is, disposed of, some part of the questions of law or of fact, presented by the pleadings in the cause. To make the provision in question, therefore, accord at all with those notions which loog experience and the practice of courts have heretofore settled as just and proper, it is obvious that some signification must be given to one or the other of the terms referred to, more or less variant from its most common and natural import.

The word merits, as a legal term, having acquired no precise technical meaning, clearly admits of some latitude of interpretation. Let it be understood, therefore, in the sections of the statute under review, as meaning " the strict legal rights of the parties, as contradistinguished from the mere questions of practice which every court regulates for itself, and from all matters which depend upon the discretion or favor of the court," and we have not only a rational but an exact and well defined construction of the provision in question. It would then give an appeal from every order which involved, that is, passed upon and determined any positive legal right of either party, and deny it in all other cases. This is the construction which will inevitably be generally given in practice to this provision ; and by adopting it as the true interpretation of the language, much Auctuation in the decisions of our courts in regard to appeals from this class of orders, may, it is believed, be avoided. Per Selden, J., in St. John v. West, 4 Pr. R., 331.

$ 350. [300.] Orders at chambers, to be entered, before appeal.— 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.

This section is identical with section 300 of the code of 1848. Under that section it was held, that orders granted by a justice at chambers ex parte under section 405, (366,] need not be entered with the clerk. Savage v. Releyea, 3 How. Pr. R , 276. 1 Code Rep., 42. But upon motions made upon notice under section 401, (360,) the affidavits, &c., used on the motion must be filed with the clerk of the county where the venue is laid. 1b.; and Nicholson v. Dunham, 1 Code Rep., 119. Or if the place of trial has been changed, then with the clerk of the county to which the other papers in the cause are transferred. 16. And the order or decision in such cases must be entered with the clerk of the county in which the papers are filed. 16. It is the duty of the respective attorneys to file the pa. pers used by them on such motion, and of the prevailing party to see that the order is entered conformably to the decision. Ib. An order improperly entered will be struck out, on motion. Bedell v. Powell, 3 Code Rep., 61.

CHAPTER V.*

Appeal to the court of common pleas for the city and county of

New-York, or to a county court, from an inferior court.
SECTION 351. Existing laws repealed, and this chapter substituted.

352. By what courts judgments to be reviewed.
353. Appeal when to be taken.
354. Copy affidavit and notice of appeal to be served, and costs paid.
355. Security to stay execution.
356. Form of undertaking,
357. Execution how stayed.
358. In case of death of justice, undertaking to be filed.
359. Counter affidavits allowed, and when and how served.
360. Return when and how made, and compelled.
361. How made if justice be out of office.
362. Further returu may be ordered.
363. Justice dead, insape, or absent from State.
364. Hearing upon return. Dismissing appeal, if not brought on.
365. To be heard on original papers.
366. Judgment how given.
367. Judgment roll.
368. Costs, how awarded.
369. Ordering restitution.
370. Setting off costs and recovery.
371. The costs on appeal.

§ 351. [301.] Existing laws repealed, and this chapter substituted.-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 New-York, 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 judgments shall be an appeal, as prescribed by this chapter.

The appeal given by this chapter is a mere substitute for the certiorari to bring up the judgment for review. Whitney v. Bayard, 2 Sand. S. C. R., 634.

And the only mode of recovering a judgment rendered in a justice's court is that prescribed by the code, and if the provisions of the code are not complied with the appellate court has no jurisdiction. Tullock v. Bradshaw, 1 Code Rep., 53. Thompson v. Hopper, Ib., 103. And see 2 Code Rep., 118. 3 Barb. S. C. R., 609. Ex parte Christie, 4 Cow., 80, and note to section 354.

§ 352. [302.] By, what courts judgments to be reviewed.

* The provisions of this chapter do not repeal section 31 of the Judiciary Act of 1847. (Laws of 1847, p. 638.) And where an appeal is pursuant to this section made to the supreme court, the proceedings throughout are to be the same as if the appeal had remained in the county court. Taylor -v. Seeley, 3 Code Rep., 84. And see note to section 371.

When the judgment shall have been rendered by the marine court of the city of New York, or by a justice's court in that city, the appeal shall be to the court of common pleas for the city and county of New-York ; and when rendered by any of the other courts enumerated in the last section, to the county court of the county where the judgment was rendered.

§ 353. [303.] (Amended.)- Appeal when to be taken.—The appellant shall, within twenty days after the judgment, make, or cause to be made, an affidavit, stating the substance of the testimony and proceeding before the court below, and the grounds upon which the appeal is founded. If the judgment is rendered upon process not personally served, and the defendant did not appear, he shall have twenty days, after personal notice of the judgment, to make and serve the affidavit and notice of appeal provided for in this and the next section.

The amendment is in italic.

This section, before amendment, was identical with section 303 of the code of 1848, and upon that section, in a case where the appellant's affidavit stated the proceedings and testimony in the court below, but did not specify any particular ground of appeal, the court dismissed the appeal, and said, " the appellant must put his finger on the point relied upon, or distinctly in form his adversary on what ground he alleges there is error in the judgment." Williams v. Cunningham, 2 Sand. S. C. R., 632. And see, Thompson v. Hopper, 1 Code Rep., 103.

And where the appellant's affidavit set forth various objections, as having been taken at the trial and overruled, but did not state the grounds on which the party appealed, the court dismissed the appeal because of this omission. Sullivan v. Mc. Donald, 2 Sand. S. C. R., 632, in note.

Where an appeal was on the ground that judgment had been entered for the plaintiff for an amount greater than the sum demanded by the summons, the court said, “ An objection to the entire appeal is taken, on the ground that the affidavit on which the appeal is founded omits to set forth the substance of the testimony in the court below. This objection should have been taken by a motion to dismiss the appeal and not upon the argument. We think, also, the objection uufounded. Where the appellant relies upon any point arising on the testimony, he must undoubtedly set forth its substance. But where his whole reliance is upon an error which does not grow out of the testimony, and which no possible state of the evidence could remedy, it cannot be necessary for him, in addition to such point, to set forth the evidence. The statute, in its true construction, requires the appellant to state the substance of the proceedings, where the alleged error consists in them, and the testimony, where the latter bears on the question sought to be presented to the appellate court. It does not require both, when the error is founded solely upon the one or the other. Par. tridge v. Thayer, 2 Sand. S. C. R., 227.

And it was held, in one case decided under the code of 1848, that the ornitting to aver, in an affidavit on appeal, that the affidavit contains a statement of the substance of the testimony and proceedings before the justice, is not fatal to the appeal. The respondent, if dissatisfied, should serve a counter affidavit, and that, unless he do so, he cannot object that there is any misstatement or omission in the appellant's affidavit. Ib. Mulford v. Decker, 1 Code Rep., 71.

But the affidavit must state the judgment appealed from. Davis v. Lounsbury, 1 Code Rep., 71.

354. [304.] (Amended.)-Copy of affidavit and notice of ap

peal to be served and costs paid. The affidavil and a notice of appeal must, within the same time, be served on the justice and a notice of the appeal on the respondent, personally or by leaving it at his residence, with some person of suitable age and discretion, or in case the respondent is not a resident of the county, in the same manner on the attorney or agent,

if

any, who is a resident of such city or county, who appeared for him on the trial ; and the appellant must, at the time of the service of the notice of appeal on the justice, pay to him the costs of the action included in the judgment, together with two dollars costs of the return, which shall be restored to him in case the judgment is reversed and be included in the judgment, for costs on reversal.

This section, prior to amendment, was us follows:

A copy of the affidavit, and a notice of appeal, shall, within the same time, be served on the justice and on the respondent, if he be a resident of the city or county, personally, or by leaving it at his residence with some person of suitable age and discretion, or if he be not a resident, on the attorney or agent, if any, who is a resident of such city or county, who appeared for him on the trial.

This section, before amendment, was identical, so far as it goes, with section 304 of the code of 1848, and under that code, where the notice of appeal was served on the respondent's attorney, on motion to dismiss the appeal, on the ground that the notice, &c., was not served on the respondent, it appeared by the appellant's affidavit that "he used great diligence to make the service on the respondent, that he called at the residence of the respondent, in the city of New York, and could not find her there, was referred to another house, where, it was said, she was gone to service, and on calling there, was told they did not know where she was, and finally, that she could not be found," the court held this insufficient to show that the respondent was not a resident of the city of New York, and dismissed the appeal. Duffy v. Morgan, 2 Sand. S. C. R., 631.

And where, under the same code, within twenty days after judgment for the plaintiff, in a justice's court, the defendant served an affidavit and bond, pursuant to the requirements of the revised statutes, and the plaintiff disregarded the defendant's proceeding, and issued execution, the court, on the defendant's motion to set aside the execution, held, that no appeal was pending, and as more than twenty days had elapsed since the rendition of the judgment, the defendant could have no relief. Purdy v. Harrison, 1 Code Rep., 54.

$ 355. [305.] Security to stay execution. If the appellant desire a stay of execution of the judgment, he shall give security as provided in the next section.

$ 356. [306.] 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.

$ 357. [307.] Execution, how stayed. The delivery of the

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