that the ends of justice would be thereby promoted (Story v. Bishop, 4 E. D. Smith, 423); nor for newly discovered evidence (Schwartz v. Bendall, 2 E. D. Smith, 123); nor because the defendant neglected to produce evidence, but did not at the trial think it necessary (Bunker v. Latson, 1 E. D. Smith 410; Edwards v. Drew, 2 id. 55).

a. New trial-Power of the court to order, where defendant did not appear, and manifest injustice has been done. This provision only applies to cases where the defendant does not appear on the trial (Bunker v. Ļatson, 1 E. D. Smith, 410; Edwards v. Drew, 2 id. 55; Rawson v. Grow, 4 id. 18; Hunt Westervelt, id. 225). Whether when defendant does appear at the return o the summons, and afterwards at successive adjournments, but finally fails to attend on the trial, he can be said to have "failed to appear before the justice," -query (Beebe v. Roberts, 3 id. 194). He cannot (Williams v. McAuley, id. 120). It has, however, been held that if a defendant honestly believes that an adjournment has been agreed upon between him and the plaintiff, and in consequence of such belief is induced to absent himself from the trial and to make no prepaltation for it, this furnishes a sufficient excuse for his default (Armstrong v. Craig, 18 Barb. 387).

b. The defendant, to entitle himself to relief, must not only satisfactorily excuse his default, but he must go further. He must show that manifest injustice has been done. A bare affidavit of merits is not sufficient. Facts must be stated and not conclusions, to enable the court to see that such injustice exists (Armstrong v. Craig, 18 Barb. 387; Fowler v. Colyer, 2 E. D. Smith, 125). And the appellant's (defendant's) affidavit merely, will not be sufficient when contradicted by the affidavit of the plaintiff, and of a witness who proved the claim on the trial (Gottsberger v. Harned, 2 E. D. Smith, 128). Where a party. seeks to procure a new trial under such circumstances, he should furnish, in addition to his own affidavit, the testimony of a witness to establish his defence (Gottsberger v. Harned, 2 E. D. Smith, 128). And in Van Wyck v. Kelly (id., note b); Gardner v. Wight, (3 id. 334); Silkman v. Boiger, (4 id. 236); Lent v. Jones, (id. 52); it was held distinctly that, where the defendant's affidavit is fully and particularly contradicted by the affidavit of the plaintiff alone, or a disinterested party, the defendant must be corroborated to authorize the court to interfere on the ground of" manifest injustice," except perhaps that where the defendant states facts and circumstances showing that injustice has been in fact done, and that such facts and circumstances are within the knowledge of witnesses who refuse to make their affidavits, but who might be compelled to testify on a new trial; it seems that such affidavit might be deemed sufficient (Lent v. Jones, supra).

c. Whether, when the default is sufficiently excused, and the appellant's affidavits show that manifest injustice has been done, counter-affidavits should be received from the respondents,-? (Camp v. Stewart, 2 E. D. Smith, 88; Lent v. Jones, 4 id. 52).

d. The fact that the defendant mistook the return day of the summons, may form sufficient ground for directing a new trial (Gottsberger v. Ilarned, 2 E. D. Smith, 128; Gardner v. Wight, 3 id. 334). But the mere fact that the defendant "forgot the time of trial "unaccompanied by any circumstances explaining or excusing his forgetfulness is not satisfactorily excusing his default. (Id.; Ball v. Mander, 19 How. 468; Beebe v. Roberts, 3 E. D. Smith, 194).

e. Where it was shown that the defendant had employed an attorney, who set out for the court-room in proper time to reach there at the hour when the summons was returnable; that he was delayed in the street by another client, and arrived fifteen minutes after the hour, finding that the case had been called and a default taken, but that the plaintiff, with his witness and counsel, was still in court, and refused to open the case, it was held, that the default was "satisfactorily excused," and that a new trial should be ordered upon terms (Seymour v. Elmer, 4 E. D. Smith, 199; 1 Abb. 412).

f. Where a defendant handed the summons to his attorney, who promised to appear, but being called from town placed it in charge of another attorney, and the latter having lost the key to his desk wherein the summons was

deposited, proceeded, under a mistaken impression, to another court; held, that the defendant's default was sufficiently excused (Lent v. Jones, 4 E. D. Smith, 52).

a. Where on the return day the defendant appeared and answered, and the cause was adjourned, and on the adjourned day the plaintiff, in the absence of the defendant, proved his case and had judgment, and it appeared the defendant's absence was occasioned by his attorney mistaking the day to which the cause stood adjourned; the defendant did not swear to having any defence, held, that it not appearing that manifest injustice had been done, the court would not reverse the judgment; and query, whether in any case after the defendant has appeared and answered, the court can relieve him on the ground that he mistook the day to which the cause was adjourned (Mix v. White, 1 id. 614).

b. It is not sufficient excuse, that the defendant relied on the assignor of the claim to stay proceedings (Travis v. Bassett, 3 E. D. Smith, 171). A party may excuse his default by showing that he paid before suit a portion of the demand sued for (attorney and counsel fees), and supposed the action was simply for the balance (Bissel v. Dean, id. 172).

c. The existence of a valid set-off, for which the appellant may still maintain an action, does not show that manifest injustice will be done (Travis v. Bassett, 3 E. D. Smith, 171).

d. Where it appeared by affidavits offered in behalf of the defendant on appeal from a judgment rendered against him in the marine court, that after the summons was served he was called out of town, but prepared his defence with proper instructions, and gave the matter in charge to a young man, especially enjoined to deliver the instructions to his attorney, and request his attendance on the return day,-it was held, that the young man having neglected to inform the attorney and permitted the cause to proceed without an appearance for the defendant, a new trial should be awarded to prevent injustice (Camp v. Stewart, 2 E. D. Smith, 88).

e. The voluntary absence of the defendant or his attorney to attend to other business is not a sufficient excuse (Fowler v. Colyer, 2 E. D. Smith, 125; Mulhern v. Hyde, 3 id. 177).

f. Upon the application to open a default, the applicant must establish that injustice has been done him by the default. It is not enough that his affidavit shows a defence. If the allegations of his affidavit are denied by the plaintiff, the appellant must furnish, in addition to his own affidavit, proof by some other person of the truth of his defence (Forster v. Capewell, 1 Hilton, 47). Whether the failure of the defendant to hear his case when called, although he was in attendance in the court-room at the time, is sufficient excuse for the default. (Id.)

g. The court of common pleas cannot relieve a defendant under this section from a judgment taken by default in a justice's court, if he has once appeared in the action (Wilde v. N. Y. & Harlem R. R. Co., 1 Hilton, 302).

h. The allegation of the defendant that he is ignorant of law proceedings, is not a sufficient excuse for his non-attendance at the time and place mentioned in the copy summons served on him (Mayor of N. Y. v. Green, 1 Hilton, 393). Nor is his mere general denial of the allegations in the complaint sufficient evidence that injustice has been done him. The defendant should point out the mode in which injustice has been done. (Id.)

i. The common pleas will not, upon appeal, set aside a regular judgment entered on default in a district court, although the defendant excuses his default, and swears to a defence, if the ground of appeal, as specified in the notice, is simply for error in the judgment, not for relief upon the merits (Haughey v. Wilson, 1 Hilton, 260).

j. Although a judgment rendered by default, upon the return of a constable that the process was duly served, cannot be impeached collaterally by showing that the return was false, yet, on appeal by a defendant who did not appear, the court will inquire into the service of the process, and if satisfied that

it was not served at all, or so improperly or defectively that the defendant was not duly apprised of its nature or effect, the defendant may be relieved (Carroll v. Goslin, 2 E. D. Smith, 376). See ante, 705, c.

o. Although a party, who has suffered judgment in the court below by default, presents to the appellate court a satisfactory excuse for his non-appearance, the respondent will not be charged with costs for having refused to accept such excuse, or to consent to a new trial on payment of the disbursements and costs of suit (Camp v. Stewart, 2 E. D. Smith, 88).

a. Appeal upon error in fact.-On an appeal founded on error in fact, the appellant should serve before or with the notice of the argument of the appeal, the affidavits of the facts relied on as constituting the error (Hurd v. Beeman, 8 How. 254; approved, Cook v. Swift, 10 How. 215). Where there are conflicting affidavits as to an alleged error in fact, the return of the justice will in certain cases govern (Kelly v. Brower, 1 Hilton, 514).

b. Argument of appeal.-Appeals to the New York common pleas are heard orally at the general term appointed for the submission thereof. The court requires both parties to be ready when the appeal is called. Engagement of counsel elsewhere is not a sufficient ground for a postponement (Tryon v. Jennings, 12 Abb. 33; 22 How. 421). The parties will be confined on the argument to a brief statement of the facts and points involved and authorities relied on, unless the court shall otherwise direct. (Rule Oct. 1857). The return must be submitted (Smith v. Van Brunt, 2 E. D. Smith, 178), and suitable points should be furnished by counsel on the submission of an appeal, and the appellate court be referred to such authorities and statutory enactments as are relied on by the respondent to sustain the judgment (De Agreda v. Faulberg, 3 E. D. Smith, 178). And where no notice of appeal or other papers specifying the grounds of appeal is submitted, and no points or arguments are presented on behalf of the appellant, calling the attention of the court to any grounds for sustaining the appeal, the court, if it sees that justice has apparently been done, will not be ingenious to discover errors in the proceedings below, but will rather assume that if the appellant or his counsel cannot discover and point out errors, none exist (Suydam v. Munson, 2 id. 198).

c. When the appeal will be dismissed on the argument.-Where the objection stated in the notice of appeal, states no sufficient ground of error, the appeal will be dismissed on the argument (Derby v. Hannin, 15 How. 32; 5 Abb. 150).

d. Judgment of affirmance.-On affirmance of a judgment, judgment is to be entered of affirmance and for the costs of the appeal, nothing more. These costs may be collected by execution (Onderdonk v. Emmons, 2 Hilton, 504).

6. Opening judgment of affirmance by default.-On an application to open a judgment of affirmance taken by default, the court requires the appellant to show a meritorious ground of appeal, and this ascertained by the statement of the case without argument, or by inspection of the return (Tryon v. Jennings, 12 Abb. 33; 22 How. 421).

f. Reversal in part.-The appellate court may reverse a justice's judgment as to one defendant and affirm it as to another (Fields v. Moul, 15 Abb. 6).

g. Conditions on reversal.-The appellate court cannot engraft on a judg ment of reversal, any provision for preserving the testimony of a witness taken on the trial, although such witness has left the State, and his testimony cannot be procured on a new trial (Norris v. Bleakley, 3 Abb. 107: 1 Hilton. 90). 0. Effect of reversal.—Where a judgment for the plaintiff is reversed without an award of judgment for the defendant upon the merits, such reversal is not conclusive of the rights of the parties (Ellert v. Kelly, 4 E. D. Smith, 12; 10 How. 392). A judgment reversed on technical grounds is not a bar to a subsequent action (Onderdonk v. Ranlett, 3 Hill, 328), nor is a judgment in a case in which the justice had no jurisdiction (Blin v. Campbell, 14 Johns. 432; Kintz v. McNeal, 1 Denio, 436). After reversal of a judgment of non-suit, plaintiff's course is to proceed de novo (Anon, 9 Wend. 503).

a. Amending judgment.-The New York court of common pleas has power to allow an amendment of the entry of judgment of affirmance, ordered on appeal from the inferior courts, where erroneously entered through mistake and the power will be exercised when no injustice is caused thereby (Bagley v. Brown, 3 E. D. Smith, 66; and see Fields v. Moul, 15 Abb. 7).

b. Re-hearing of appeal.-A rehearing of appeal will not be granted where no advantage could result from it, as where the court are satisfied that a rehearing would lead to the same result as had been already arrived at (Teaz v. Chrystie, 2 Abb. 259; 2 Hilton, 135).

c. New trial.-The granting a new trial under section 866 is a matter of mere discretion not reviewable in the court of appeals (Wavel v. Wiles, 24 N. Y. 635).

* § 367. [318.] (Am'd 1852.) Existing suits. Judgment

roll.

To every judgment upon an appeal there shall be annexed the return on which it was heard, which shall be filed with the clerk of the court, and shall constitute the judgment-roll.

§ 368. [321.] (Am'd 1849.) Existing suits. Costs, how awarded.

If the judgment be affirmed, costs shall be awarded to the respondent. If it be reversed, costs shall be awarded to the appellant. If it be affirmed in part, the costs or such part as to the court shall seem just, may be awarded to either party.

d. Costs on partial affirmance.-Where a judgment was affirmed in part and reversed in part, the respondent was allowed his costs in the court below, but was required to pay the costs of the appeal (Cole v. Swanston, 1 Cal. 51).

e. When the court must award costs.-In affirming a judgment, the appellate court is compelled by statute to award costs to the respondent, and has no power to relieve from the payment of those costs (Logue v. Gillick, 1 E. D. Smith, 398); and on reversing a judgment the court has no discretion as to costs. The reversal must be with costs (Hahn v. Van Doren, id. 411; Main v. Eagle, ib. 621; Chapin v. Churchill, 12 How. 367; Snyder v. Goodrich, 2 E. D. Smith, 85; see now however, § 371, post). But if a reversal without costs is ordered, the clerk with whom the judgment is docketed has no power to enter a judgment of reversal with costs (Chapin v. Churchill, supra).

f. Costs of court below.-Where a judgment for plaintiff is reversed without an award of judgment for the defendant, the defendant's cost in the court below cannot be allowed to him and included in the judgment of reversal (Ellert v. Kelly, 4 E. D. Smith, 12). Whether such costs should be allowed to the appellant, where the appellate court not only reverses the judgment below, but also orders judgment final for the appellant upon the merits,-query? (Id.'; see Lewis v. Fox, 19 How. 561, 281; 20 How. 96, note; 11 Abb. 134).

g. A respondent who succeeds on an appeal is entitled to the judgment of the appellate court in affirmance of his judgment. Whether the whole judgment with the costs of appeal, can be collected by execution issued out of the appellate court, when the transcript of the original judgment has not been filed with the county clerk, query? It seems that the respondent on affirmance is not required to issue execution out of this court to collect the amount of the original judgment; and that there is no difference between the marine and justices' * Amended-See Appendix.

courts and any other in respect to the effect of an appeal upon the power of the court below to enforce its own judgment (Smith v. Allen, 2 E. D. Smith, 259; see Onderdonk v. Emmons, 2 Hilton, 504).

a. Payment of judgment pending the appeal.-Pending an appeal from a judgment obtained in a justice's court in favor of the plaintiff, the defendant paid the judgment without costs of appeal, to a son of the plaintiff, who was not shown to have had any authority to receive the payment. The judgment was afterwards affirmed by default-the defendant not appearing; and the plaintiff issued execution directing a levy simply for the cost of appeal. Held that an order at special term setting aside the judgment and execution was irregular and improper. If a party who was appealed from a judgment relies upon a payment thereof as a reason for a stay of proceedings, he should appear and apply for an order accordingly, before judgment of affirmance is entered. Whether an order for judgment on appeal at the general term can in any case be set aside by an order of a single judge at special term, query? (Adams v. Kearney, 2 E. D. Smith, 42).

§ 369. [322.] (Am'd 1849, 1857). Existing suits. Resti

tution.

If the judgment below, or any part thereof, be paid or collected, and the judgment be afterwards reversed, the appellate court shall order the amount paid or collected to be restored with interest from the time of such payment or collection. The order may be obtained on proof of the facts made at or after the hearing, upon a previous notice of six days; and if the order shall be made before the judgment is entered, the amount may be included in the judgment.

b. When restitution will be ordered.—Where, upon a reversal, it appears by a transcript from the docket, that the judgment has been satisfied, restitution will be ordered (Hunt v. Westervelt, 4 E. D. Smith, 225).

c. Where a judgment of the court below has been paid before writ of error brought, but not satisfied of record, on reversal thereof the plaintiff in error cannot enter a suggestion and award of restitution of payment in his record of reversal, without leave of the court. It is otherwise where the judgment below is satisfied of record. There the evidence of payment comes up with the record, and restitution is a matter of course (Sheridan v. Mann, 5 How. 201; 3 Code Rep. 213).

d. The proper course where a party appealing is entitled to a restoration, is a motion in the appellate court for restoration; and on that motion being granted, it becomes a part of the judgment in the appellate court, and the amount can be collected by execution with the costs (Kennedy v O'Brien, 2 E. D. Smith, 41).

See ante, p. 447,g.

§ 370. [323.] Existing suits. Setting off costs and recovery. If, upon an appeal, a recovery be had by one party, and costs be awarded to the other, the appellate court shall set off the one against the other, and render judgment for the balance.

*

§ 371. [324.] (Am'd 1849, 1851, 1862, 1863, 1864.) Exist* Amended-See Appendix.