PART III On any appeal security must be given to and dama pay costs ges, not 8250, or de unless waived. On judg ment for money, se stay execu curity to tion. If judg ment be to S334. 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 two hundred and fifty 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. 1 N. Y., 606; 32 B., 357; 8 B., 309; 22 How. P. R., 193; 18 How. P. R., 261; 13 How. P. R., 403; 10 How P. R., 133, 344, 481; 4 How. P. R., 209; 13 Ab., 126, 183; 12 Ab., 113; 11 Ab., 29; 5 Ab., 67; 4 Ab., 224; 3 Ab., 228; 2 Ab., 442; 1 Ab., 275. $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 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. As amended by Laws of 1859, ch. 428; 1862, ch. 460; see post, Laws of 1863, ch. 392. 14 N. Y., 61; 3 N. Y., 336; 19 B., 531; 8 B., 309, 667; 17 How. P. R., 394; 10 How. R., 133, 344, 481; 8 Ab., 235; 5 Ab., 67; 3 Ab., 70, 228; 1 Ab., 120, 274. $336. If the judgment appealed from, direct the assignment deliver or delivery of documents, or personal property, the execution documents, of the judgment shall not be stayed by appeal, unless the be deposit- things required to be assigned or delivered, be brought into they must ed. 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. 19 B., 532; 11 Ab., 414; 1 Ab., 120. $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 CHAP. XI. appellate court. 19 B, 532; 12 Ab., 112; 1 Ab., 120. where to deliver mortgaged $338. If the judgment appealed from, direct the sale or Security, delivery of possession of real property, the execution of the judgment is same shall not be stayed, unless a written undertaking be exe- property or cuted on the part of the appellant, with two sureties, to the for a sale of effect that during the possession of such property by the ap- premises. pellant, 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. 19 B, 532; 18 How. P. R., 261; 13 Ab., 182; 1 Ab., 120. Stay of proceed Ings, upon security given. $339. Whenever an appeal is perfected as provided by sections three hundred and thirty-five, three hundred and thirtysix, three hundred and thirty-seven and three hundred and city thirty-eight, 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 three hundred and thirty-five, three hundred and thirty-six and three hundred and thirty-eight, 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 three hundred and thirty-six, three hundred and thirty-seven, three hundred and thirty-eight, where it would otherwise, according to those sections, exceed that sum. As amended by Laws of 1851, ch. 479. 3 N. Y., 336; 19 B., 532; 12 How. P. R., 467; 13 Ab., 183; 9 Ab., 213; ings may instrument 340. The undertakings prescribed by sections 334, 335, Undertak336, and 338, may be in one instrument or several, at the be in one option of the appellant; and a copy, including the names and or several 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. 8 B., 309, 354: 18 How. P. R., 261; 13 How. P. R., 403; 10 How. P. R., be $341. An undertaking upon an appeal shall be of no effect, Security to unless it be accompanied by the affidavit of the sureties, that ved and to they are each worth double the amount specified therein. Jastify. PART III. Perishable property may be 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 repeal shall be regarded as if no undertaking had been given. The justification shall be upon a notice of not less than five days. 18 N. Y., 492; 2 N. Y., 562; 8 How. P. R., 89; 5 How. P. R., 75; 13 Ab., 423; 5 Ab., 67; 3 Ab., 228; 2 Ab., 442; 3 Bos., 636. $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 ing appeal. in the court below, upon the judgment appealed from, except sold, notwithstand Undertak 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. 19 B., 532; 8 How. P. R., 89; 7 How. P. R., 287; 3 How. P. R., 303; 11 Ab., 29; 1 Ab., 120. S343. The undertaking must be filed with the clerk, with ing must be whom the judgment or order appealed from was entered. 13 Ab., 126; 3 Ab., 228. filed. In what cases. Security must be given, as upon appeal to court of appeals. Appeal, where heard. CHAPTER III. APPEAL TO THE SUPREME COURT FROM AN INFERIOR COURT. SEC. 344. In what cases. 345. Security must be given as upon appeal to the court of appeals. 346. Appeal, where heard. 347. Judgment on appeal where entered and docketed. S344. 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. 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. As amended by Laws of 1858, ch. 306; 1860, ch. 459. 22 N. Y., 518; 4 N. Y., 311; 24 B., 443; 22 B., 276; 20 B., 342; 8 B., 590; 6 B., 158; 17 How. P. R., 123; 10 How. P. R., 124; 5 How. P. R., 326; 4 How. P. R., 9; 4 S. S. C., 118. $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. 4 Ab., 286. $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. 17 How. P. R., 123; 8 How. P. R., 105. CHAP. XI. where en docketed. $347. Judgment upon the appeal shall be entered and Judgment docketed with the clerk in whose office the judgment roll is on appeal, filed. When the appeal is heard in a county other than that tered and 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. CHAPTER IV. APPEALS IN THE SUPREME COURT, AND THE SUPERIOR COURT AND COURT SEC. 348. Appeals from circuits and special terms to same courts 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. general supreme appeal. $348. In the supreme court, the superior court of the city Appeals to of New York, and the court of common pleas for the city and term of the county of New York, an appeal upon the law may be taken court. 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 pro- Security on ceedings, 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 when acshall be commenced upon any undertaking given or to be commenced given in pursuance of the provisions of this section until ten curity. 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 execution. 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. Amended by Laws of 1851, ch. 479; 1852, ch. 392; 1859, ch. 428; 1862, 13 N. Y., 308; 12 N. Y., 589; 4 N. Y., 311 32 B., 570, 651; 19 B., 165; tion may be on the se $349. An appeal may in like manner and within the same Judges' time be taken from an order made at a special term by a be appealed orders may ᏢᎪᎡᎢ III, from in cer single judge of the same court, or a county or a special tain cases. county judge, or by a recorder, or by any recorder's court of any city, in any stage of the action, including proceeding supplementary to the execution, and may be thereupon reviewed in the following cases: Orders at chambers, to be en tered, be 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 taken; 5. When the order is made upon a summary application in an action after judgment, and affects a substantial right. Amended by Laws of 1851, ch. 479; 1852, ch. 392; 1862, ch. 460. 23 N. Y., 163; 18 N. Y., 230; 28 B., 663; 27 B., 633; 22 B., 164; 19 B., 198; 18 B., 335; 12 B., 387; 10 B., 303; 9 B., 378; 22 How. P. R., 385; 21 How. P. R., 300; 20 How. P. R., 358, 422; 19 How. P. R., 234, 274; 18 How. P. R., 83, 275, 387; 13 How. P. R., 196; 12 How. P. R., 435; 11 How. P. R., 204, 251, 572; 10 How. P. R., 89, 98, 106, 218, 221, 253; 9 How. P. R., 69; How. P. R., 246, 354; 7 How. P. R., 360; 6 How. P. R., 32, 340, 413; 5 How. P. R., 31, 386; 4 How. P. R., 74, 313, 432; 13 Ab., 309, 387; 12 Ab., 69, 166, 419; 11 Ab., 8, 16, 47; 10 Ab., 315, 479, 480; 9 Ab., 91; 4 Ab., 91, 100, 285; 3 Ab., 79, 387; 2 Ab., 120, 288; 2 E. D. S., 32, 53, 223; 2 S. S. C., 401. $350. The last section shall include an order made out of court upon notice; but in such case the order must be first fore appeal. 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. 19 B., 603; 20 How. P. R., 422; 17 How. P. R., 84; 10 How. P. R., 148; 5 How. P. R., 308. CHAPTER V. APPEAL TO THE COURT OF COMMON PLEAS FOR THE CITY AND COUNTY OF SEC. 351. Existing laws repealed, and this chapter substituted. 352. By what courts judgments to be reviewed. 353. Time to appeal. 354. Manner of appealing. 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. In that case, notice now served. 360. Return, when and how made, and compelled. 361. How made if justice be out of office. 362. Further return may be ordered. 363. If justice be dead, insane or absent from state, witnesses to be examined. If in another county, return may be compelled. 364. Hearing, upon return Dismissing appeal, if not brought on. 365. To be heard on original papers. 366. Judgment, how given. 367. Judgment roll on appeal. 368. Costs, how awarded. 369. Ordering restitution. |