Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

Limitation of time; order to stay proceedings.

Stay of proceedings without order.

Upon what

papers appeal to be heard.

Entry of judgment

§ 1351. An appeal, authorized by this title, must be taken, within thirty days after service, upon the attorney for the appellant, of a copy of the judgment or order appealed from, and a written notice of the entry thereof. Security is not required to perfect the appeal; but, except where it is otherwise specially prescribed by law, the appeal does not stay the execution of the judgment or order appealed from; unless the court, in or from which the appeal is taken, or a judge thereof, makes an order, directing such a stay. Such an order may be made, and may, from time to time, be modified, upon such terms, as to security or otherwise, as justice requires. If security is given, either as a condition of granting the order, or as prescribed in the next section, the provisions of title second of this chapter apply thereto, as if the general term was specified in those provisions, in place of the appellate court, and a judge of the same court, in place of a judge of the court below.

See Code Pro., § 332; also id., §§ 348 and 350; Wait's Code, 652; 4 Wait's Pr. 217, 219, 331. See Elias

v. Babcock, 12 Abb. N. S. 288; Porter v. Parmly, 6 J. & Sp. 490; Barnes v. Stoughton, 6 Hun, 254.

§ 1352. Upon an appeal from a final judgment, taken as prescribed in this title, the appellant may give the security, required to perfect an appeal to the court of appeals, from a judgment of the same amount, or to the same effect; and to stay the execution thereof. In that case, the execution of the judgment appealed from is stayed, as upon an appeal to the court of appeals, and subject to the same conditions.

From Code Pro., § 348. See Wait's Code, 681, 682; 4 Wait's Pr. 301.

§ 1353. An appeal from a final judgment, taken as prescribed in this title, must be heard upon a certified copy of the notice of appeal, of the judgment-roll, and of the case or notice of exceptions, if any, filed, as prescribed by law or the general rules of practice, after the entry of the judgment, and either before or after the appeal is taken. An appeal from an interlocutory judgment, or from an order, taken as prescribed in this title, must be heard upon a certified copy of the notice of appeal, and of the papers used before the court or the judge, upon the hearing of the demurrer, application for judg ment, or motion, as the case requires.

New. See N. Y. Sup. Ct. Rule 50; Wait's Code, 847, 848.

§ 1354. Where judgment of affirmance is rendered upon the or order; appeal, the judgment-roll consists of a certified copy of the judg ment, annexed to the papers, upon which the appeal was heard Where subsequent proceedings are taken, at the special term or trial

judgmentroll.

term, before the entry of final judgment, the judgment-roll must also contain the proper papers relating thereto.

New. This section abrogates the rule laid down in Eno v. Clarke, 6 How. 462; 4 Wait's Pr. 316.

etc., in

preme

§ 1355. An appeal taken to the general term of the supreme Hearing, court, as prescribed in this title, must be heard in the department, the su embracing the county, in which the judgment or order appealed court. from is entered; unless an order is made, as prescribed in section 231 of this act, directing that it be heard in another department. The judgment rendered, or the order made, upon the appeal, must be entered, and the judgment-roll, or the papers upon which the appeal was determined, as the case requires, must be filed, in the office of the clerk of the county, where the judgment or order appealed from is entered. If the appeal is determined at a general term, held in another county, the clerk of that county must, at the expense of the successful party, transmit a certified copy of the determination, and the other papers, if any, required to be filed, to the clerk of the county where the judgment or order is to be entered. From Code Pro., §§ 347 and 348, with amendments. See Wait's Code, 680; 4 Wait's Pr. 315, 316.

TITLE V.

Appeal from a determination in a special proceeding.

SEC. 1356. Appeal from order made in the same court.

1357. Id.; when made by another court or judge.

1358. Preceding order may be reviewed.

1359. Limitation of time to appeal.

1360. Stay of proceedings; hearing of appeal; decision thereupon. 1361. This title qualified. Application of provisions relating to actions.

from

made in

court.

§ 1356. [Amended, 1877.] An appeal may be taken, to the Appeal general term of the supreme court, or of a superior city court, from order an order, affecting a substantial right, made in a special proceeding, the same at a special term or a trial term of the same court, or, in the supreme court, at a term of a circuit court; or made by a judge of the same court, in a special proceeding instituted before him, pursuant to a special statutory provision; or instituted before another judge, and transferred to, or continued before him.

Laws of 1854, ch. 270, § 1; 4 Edm. Wait's Pr. 324; Matter of Anderson, St. 681; 5 id. 133, amended. See 4 60 N. Y. (15 Sick.) 457.

Id.: when made by another court or

judge.

Preceding
order
may be
reviewed.

Limitation

of time to appeal.

Stay of

proceedings;

hearing of appeal; decision

§ 1357. [Amended, 1877.] An appeal may also be taken to the supreme court, from an order, affecting a substantial right, made by a court of record, possessing original jurisdiction, or a judge thereof, in a special proceeding instituted in that court, or before a judge thereof, pursuant to a special statutory provision; or instituted before another judge, and transferred to, or continued before, the judge who made the final order. But this section does not apply to a case, where an appeal from the order, to a court, other than the supreme court, is expressly given by statute.

Substituted for Code Pro., § 344, last sentence. See Wait's Code, 678; Baker v. Remington, 45 N. Y. (6 Hand)

323; Woodbury v. Morton, 44 How. 56; Hathaway v. Warren, id. 161, 167.

§ 1358. [Amended, 1877.] An appeal, authorized by this title, brings up for review, any preceding order, made in the course of the special proceeding, involving the merits, and necessarily affecting the final order appealed from, which is specified in the notice of appeal.

From Code Pro., § 329; Wait's
Code, 649; Laws of 1854, ch. 270, §
See Hunt v. Chapman, 49 How.
377; S. C., 62 N. Y. (17 Sick.) 383,

2.

Hallahan v. Herbert, 4 Daly, 209, 214; S. C., 11 Abb. N. S. 326; S. C. affirmed, 52 N. Y. (12 Sick.) 409.

§ 1359. An appeal, authorized by this title, must be taken within thirty days after service of a copy of the final order, from which it is taken, with a written notice of the entry thereof, upon the appellant; or, if he appeared, upon the hearing, by an attorney at law or an attorney in fact, upon the person who so appeared for him.

From Code Pro., § 332; Wait's
Code, 652; Laws of 1854, ch. 270, § 2.

See Porter v. Parmly, 6 J. & Sp. 490;
Whitney v. Townsend, 7 Hun, 233.

§ 1360. The provisions of title fourth of this chapter, relating to perfecting an appeal from an order, taken as therein prescribed; to staying the execution of the order appealed from; to hearing the thereupon. appeal; and to the entry and enforcement of the order made upon the appeal, apply, where an appeal is taken, as prescribed in this title, except as otherwise specially prescribed by law.

This title qualified. Application of

relating to

The provisions of this section have 1355, ante. See, also, §§ 1313 and reference to §§ 1351, 1353, 1354 and 1314, ante.

§ 1361. This title does not confer the right to appeal from an order, in a case, where it is specially prescribed by law, that the order provisions cannot be reviewed. The proceedings upon an appeal, taken as actions. prescribed in this title, are governed by the provisions of this act, and of the general rules of practice, relating to an appeal in an action, except as otherwise specially prescribed by law.

New.

CHAPTER XIII.

EXECUTIONS.

TITLE I. FORMS OF EXECUTION; TIME AND MANNER OF ISSUING AN EXECUTION; GENERAL DUTIES AND LIABILITIES

OF OFFICERS.

TITLE II. EXECUTION AGAINST PROPERTY.

TITLE III.- EXECUTION AGAINST THE PERSON.

TITLE I

Forms of execution; time and manner of issuing an execu tion; general duties and liabilities of officers.

SEC. 1362. To whom execution directed; provision where sheriff is a party. 1363. Time of receipt to be indorsed on execution.

1364. The different kinds of execution.

1365. To what counties executions may issue.

1366. General requisites of executions.

1367. Id.; when issued on filing transcript from justice's court, etc.

1368. Requisites of execution for the collection of money.

1369. Id.; against property.

1370. Id.; where a warrant of attachment has been levied by sheriff.

1371. Id.; against executor, etc.

1372. Id.; against the person.

1373. Id.: for delivery of property. How money, recovered by same judg

ment, may be collected.

1374. Separate executions, where separate sums awarded.

1375. Execution of course, within five years.

1376. Execution, after death of judgment creditor.

1377. When execution may be issued after five years.

1378. Id.; leave, how obtained.

1379. No execution against decedent, except, etc.

1380. Leave required to issue execution against decedent's property.

1381. Leave, how obtained.

1382. Time of stay by order, etc., not reckoned under this title.

1383. Execution against surviving judgment debtors.

1384. Sale on execution, etc.; when and how conducted.

1385. Penalty for taking down or defacing notice of sale.

1386. Validity of sale, when not affected by sheriff's default, etc. 1387. Purchases on such sales, by certain officers, prohibited. 1388. When execution to be enforced by under-sheriff.

To whom execution directed; provision where sheriff is

a party.

Time of receipt to be indorsed

on execution.

The different kinds of execution.

§ 1362. An execution must be directed to the sheriff, unless he is a party or interested; in which case it must be directed as prescribed in section 173 of this act. But the court may, in its discretion, order an execution, issued upon a judgment rendered against a sheriff, either alone or with another, to be directed to a person, designated in the order, instead of to the coroners, or a particular coroner; in which case it must be so directed. The person so designated must be of full age, a resident of the State, and not a party to the action, or interested therein. Where the execution is issued upon a judgment for a sum of money, or directing the payment of a sum of money, the order does not take effect, until the person so designated executes, and files in the clerk's office, a bond to the people, with at least two sureties, approved by a judge of the court, or a county judge, in a penal sum, fixed by the order, not less than twice the sum to be collected by virtue of the execution; conditioned for the faithful performance of his duties under the execution. A certified copy of the order, and, where it requires a bond to be given, the clerk's certificate that a bond has been filed, as required by the order, must be attached to the execution. The person so designated is deemed an officer; and, with respect to that execution, he is subject to the obligations and liabilities, and has the power and authority of a coroner, and is entitled to fees accordingly.

The first sentence has been taken from Code Pro., § 289. The remainder has been taken from 2 R. S. 377, §§ 11 and 12, except that the third, fourth and fifth sentences have been added, and the provisions authorizing "any judge thereof, in vacation," to make the special appointment provided for, has been omitted. Wait's Code, 538540; 4 Wait's Pr. 14-18.

Although an execution is directed

on the inside "to the sheriff of the county of county," yet if the name of the proper county is indorsed on the outside, in connection with the direction to levy, and it is delivered to the sheriff of that county, its direction to such sheriff sufficiently appears. White v. Coulter, 1 Hun, 357; S. C., 3 N. Y. Sup. Ct. (T. & C.) 608; reversed in part, 59 N. Y. (14 Sick.) 629; 2 Hun, 1; 4 N. Y. Sup. Ct. (T. & C.) 111.

§ 1363. The sheriff, to whom an execution is directed and delivered, must, upon the receipt thereof, indorse thereupon a memorandum of the day, hour, and minute, when he received it.

2 R. S. 377, § 10; 4 Wait's Pr. 17.

§ 1364. There are four kinds of execution, as follows:
1. Against property.

2. Against the person.

3. For the delivery of the possession of real property, with or without damages for withholding the same.

4. For the delivery of the possession of a chattel, with or without damages for the taking or detention thereof.

An execution is the process of the court, from which it is issued.

« ΠροηγούμενηΣυνέχεια »