The question that arises now is this. Is the decision at special term, overruling a demurrer, an order, appealable as such, or a judgment, requiring final judgment to be entered before the appeal can be brought? It was held, that under this section an appeal may be brought upon the order, without entering final judgment. Nellis v. De Forrest, 6 Pr. R., 413. From an order sustaining or overruling a demurrer, an appeal may, since the amendment of 1851, be taken to the general term without security. Reynolds v. Freeman, 4 Sand. S. C. R., 702. Such an appeal is an enumerated motion, the cause must be placed on the calendar, and the requisite papers be printed and furnished as in other calendar causes. 16. If a judgment have been entered on the order, the appeal must be from the judgment and not from the order. Ib. Where the decision on the demurrer is final in the cause, giving no leave to amend, or to plead over, it should be appealed from as a judgment. Ib. If an order for the examination of a judgment debtor is erroneous, the remedy of the defendant is to apply to the county judge to vacate or modify it. And if such application is denied, it seems the defendant may appeal under s. 349. Conway v. Hitchins, 9 Barb. S. C. R., 378. An order imposing terms as a condition of relief from a default, is not appealable in respect of such terms,-e. g., on giving a plaintiff leave to stipulate, when through his default the defendant is entitled to judgment, as in case of nonsuit. Gale v. Vernon, 4 Sand. S. C. R., 709. A plaintiff, in such case, should give the required stipulation, and if by reason of facts beyond his control, he cannot comply with it, should then set up such facts in answer to defendant's motion founded on his omission to comply. Ib. An order denying a motion to enter on the docket of a judgment from which an appeal has been brought, the words "secured by appeal," pursuant to section 282 of the code, is not appealable. Fitch v. Livingston, 4 Sand. S. C. R., 712. 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 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, unless a stay of proceedings is sought for. 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. Savage v. Darrow, 2 Code Rep., 57. An appeal under this section, is a motion within the definition of a motion in section 401. Ib. 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. Seeley v. Chittenden, 10 Barb. S. C. R., 303, and section 9 of supplement to code. When, then, may an order made at special term be said to "involve the merits"? 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 necessary process to enforce the judgment of the court involves the merits. Cruger v. Douglas, 2 Code Rep., 123. 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 some interlocutory matter, thus reversing 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 in the present case, as will hereafter appear. Again: The precise meaning of the word "involve," in this sentence, presents a difficulty scarcely less embarrassing. If considered, as might be without doing violence to language, as synonymous with the word affect, 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 court, 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 long experience and the practice of courts have heretofore settled 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. ав 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 fluctuation 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. Appeals fronı orders on points of practice in the New York common pleas, see rules of New York common pleas in appendix. § 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 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. Ib.; 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. Ib. And the order or decision in such cases must be entered with the clerk of the county in which the papers are filed. Ib. It is the duty of the respective attorneys to file the papers 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. A party cannot appeal from an ex parte order, made by a judge at chambers, to the general term. Lindsay v. Sherman, 1 Code Rep. N. S., 26, referring to Savage v. Releyea, 3 Pr. R., 276. The usual practice formerly, was to apply to the judge who granted the order, to vacate it, and, on his refusal, to appeal to the court. 1 Burr. Pr., 350. 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. Filing in lieu of service of notice of appeal. 360. Return, when and how made, and compelled. 361. How made if justice be out of office. 362. Further return may be ordered. 363. Justice dead, insane, 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.] (Amended 1849.) Existing Suits. Existing laws repealed, and this chapter substituted. ---All statutes, now in force, providing for the review of judgments in civil cases, * 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. rendered by courts of justices of the peace, by the marine court of the city of New York, by the justices' courts of the city of New York, by the muncipal 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 reviewing 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, I 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.] (Amended 1849.) Existing suits. By what courts judgments to be reviewed.--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 1851-1852.) Existing suits. Appeal when to be taken. -The appellant shall, within twenty days after judgment, serve a notice of appeal, stating 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 serve the notice of appeal provided for in this and the next section. Before the amendment of 1852 this section was as follows, the amendment of 1851 being in italic : "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 judg. ment 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." This section, before the amendment of 1851, 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 inform 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 18 Wend., 550. 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. McDonald, 2 Sand. S. C. R., 632, in note. The cases of Partridge v. Thayer, 2 Sand. S. C. R., 227; Mulford v. Decker, 1 Code Rep., 71; Davis v. Lounsbury, ib., 71, were decisions on this section, but have no application to the present wording of the section. § 354. [304.] (Amended 1849-1851-1852.) Existing suits. Copy of affidavit and notice of appeal to be served and costs paid. The notice of appeal must, within the same time, be served on the justice personally, if living and within the county, or on his clerk, if there be one, and 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. 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., were 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, 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 rad elapsed since the rendition of the judgment, the defendant could have no relief Purdy v. Harrison, 1 Code Rep., 54. Where, on an appeal from a justice's judgment, the fee for the return was not paid at the time of the service of the notice of appeal, but was afterwards tendered and refused, and the justice refused to make any return, the appeal was dismissed; and Harris, J., said, "If the fee for the return is not paid on the service of the notice of appeal, the justice is not bound to make a return; nor is it in the power of the appellate court, either to compel a return, or to hear the appeal in the absence of any return. Van Heusen v. Kirkpatrick, 1 Code Rep. N. S., 74. An appeal from a justice's court is perfected by the service of notice of appeal on the justice, and on the respondent, or his attorney, if the respondent is a non-resident; and when notice of appeal had been served on the justice, and no notice had been served on the respondent, it was held, that no appeal had been perfected, and that the plaintiff should treat the service made as a nullity and issue execution on the judgment; and a motion to set aside the appeal was dismissed. Schermerhorn v. Golief, 1 Code Rep. N. S., 290. |