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appeals and judgment ordered on the verdict, the court below refused to go behind the judgment and inquire into its regularity, or to entertain a question as to the verdict having been taken subject to an adjustment (id) The remedy for irregularity is not by appeal, but by motion to set aside the proceedings (Pitt v. Davison, 37 Barb. 97; and see Ingersoll v. Bostwick, 22 N. Y. 425; Dart v. McAdam, 27 Barb. 187; Bank of Genesee v. Spencer, 15 How. 14); or by habeas corpus (Wiles v. Brown, 3 Barb. 37).

a. Parting with interest.—The objection that a party had parted with his interest in the subject-matter of an action before or pending an appeal brought by him to the court of appeals, will not, except in a palpable case of fraud, authorize the supreme court to set aside the judgment of the appellate court, and afterwards made the judgment of the supreme court, nor to grant a perpetual injunction against the enforcement of such judgment (Munn v. Worrall, 16 Barb. 221).

b. Effect of appeal.-When a right of action has accrued against a sheriff for not returning an execution, such right of action cannot be divested by an appeal taken from the judgment on which such execution issued (Bowman v. Cornell, 39 Barb. 69). An appeal from a judgment suspends the power of a surrogate to entertain a proceeding to enforce its payment (Curtis v. Stilwell, 32 Barb. 354).

c. So long as a judgment is subject to an appeal, the court below may correct or modify it in its discretion (N. Y. Ice Co. v. N. West Ins. Co. 12 Abb. 414; 21 How. 296); and while an appeal is pending in the court of appeals, the court below have still control over the judgment in regard to making amendments, and the judgment is, for all purposes of amendment, regarded as remaining in the court below (Judson v. Gray, 17 How. 289).

d. Second appeal after first dismissed or abandoned.—A voluntary dismissal or abandonment of an appeal, is no bar to a further appeal by the same party, within the time prescribed by the statute (Crafts v. Ives, Court of Appeals, October, 1852); as in the case of an appeal dismissed for want of a proper undertaking (Martinez v. Galardo, 5 Cal. R. 155; Kelsey v. Campbell, 14 Abb. 368; 38 Barb. 238). Where an appeal had been dismissed with costs, and the costs had not been paid, and the appellant entered another appeal, the court on motion of the respondent, stayed the proceedings on the second appeal until the costs of the first were paid (Dresser v. Brooks, 5 How. 75).

§ 324. Orders made out of court, how vacated or modified. An order, made out of court, without notice to the adverse party, may be vacated or modified, without notice, by the judge who made it, or may be vacated or modified on notice, in the manner in which other motions are made.

e. This section was not intended to give an unlimited right to vacate or ders granted ex parte, but only to allow a judge who had improvidently granted an order, to rectify the error if applied to immediately, and before any subsequent step had been taken in the action. After a subsequent step in the action no judge can vacate the order ex parte (Peck v. Yorks, 24 How. 363; 41 Barb. 547). An order of one judge cannot be vacated by another ex parte (Swift v. Wylie, 5 Rob. 641).

f. To get rid of an order improperly made by a judge at chambers, the remedy is by motion to the court to set it aside, not an appeal (B'k of Genesee v. Spencer, 15 How. 14; Culver v. Hollister, 17 Abb. 405).

g. This section does not apply to an order made out of court upon notice (Follett v. Weed, 3 How. 360). But it extends to an order to examine a defendant in proceedings supplementary to an execution (Lindsay v. Sherman, 1

Code Rep. N. S. 25; 5 How. 308; Blake v. Locy, 6 How. 108); an order of arrest (see ante, 301 c); for an injunction (see ante, p. 327, a; and see § 27, ante).

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Any party aggrieved may appeal in the cases prescribed in this title.

a. Party aggrieved.-Only the party who is aggrieved by the judgment can apply to reverse, and the party in whose favor the judgment is given cannot be aggrieved by it, and consequently cannot apply to reverse it (Fairbanks v. Corlies, 1 Abb. 155). And a party who is aggrieved by one part of a judgment only, cannot by appeal call in question another part of the same judgment in which he is not interested (Cuyler v. Moreland, 6 Paige, 273). A stranger to the action cannot appeal (see E. B. v. E. C. B. 8 Abb. 44; Re Bristol, 16 Abb. 397; Martin v. Kanouse, 2 Abb. 390); contra, if he is aggrieved by the judgment (Adams v. Woods, 8 Cal. R. 306). The term party aggrieved" embraces the representatives of a deceased party to a suit (Beach v. Gregory, 2 Abb. 209; Martin v. Kanouse, id, 392). Although a stranger to the action may be allowed to apply for relief against a proceeding in such action, yet if his application is denied, he cannot appeal from the order denying his application (Re Bristol, 16 Abb. 397). A purchaser at a foreclosure sale was allowed to appeal from an order setting aside the sale (Mortimer v. Nash, 17 Abb. 229 n).

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b. All the defendants may join in an appeal from a judgment against them on their joint answer as frivolous (B'k of Cooperstown v. Corlies, 1 Abb. N. S. 413).

c. Any one of several parties conceiving himself aggrieved by the judgment may appeal, whether his coplaintiffs or his codefendants join in the appeal or not (Mattison v. Jones, 9 How. 152).

d. Where a party to an appeal dies after the return is filed in the court of appeals, that court having thereby obtained jurisdiction, has the power to allow the legal representatives of such deceased party to be substituted in his place (Hastings v. McKinley, 8 How. 175).

§ 326. Parties, how designated on appeal.

The party appealing shall be known as the appellant, and the adverse party as the respondent. But the title of the action shall not be changed in consequence of the appeal.

e. In all proceedings on appeal in the court of appeals, the papers must be entitled in that court, and not in the court from the decision of which the appeal is brought (Clickman v. Clickman, 1 N. Y. 611).

§ 327. (Am'd 1849.) Appeal, how made.

(1.) An appeal must be made by the service of a notice in writing on the adverse party, and on the clerk with whom the judgment or order appealed from is entered, stating the appeal from the same or some specified part thereof. (2.) When a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit, through mistake, to do any other act neces

sary to perfect the appeal or to stay proceedings, the court may permit an amendment on such terms as may be just.

a. Notice—what sufficient.—A notice of appeal stating that the defendant appealed "from the judgment entered in this action to the general term," was held sufficient. It is enough if the notice specify what part of the judgment it is intended to review upon the appeal" (Wilson v. Allen, 3 How. 372). A notice of appeal from a judgment at special term, in a special proceeding, which stated that the appeal is taken to the " supreme court," instead of the "general term of the supreme court,"-held sufficient (The People v. Boylston, 17 How. 120). Serving exceptions or a case has been held to amount to notice of appeal (Sherman v. Wells, 14 How. 525; Jackson v. Fassett, 12 Abb. 281; 33 Barb. 645).

b. Service of_notice.-The appeal is not made until notice is served on both the clerk and the adverse party; therefore, the notice of appeal must be served as well on the clerk as on the respondent, within the times respectively prescribed by sections 331, 332 (Westcott v. Platt, 1 Code Rep. 100), or the appeal is a nullity (Morris v. Morange, 17 Abb. 86; 26 How. 247). The deposit of a notice of appeal in the post-office on the last day for bringing the appeal, and when such notice is not received by the party to whom sent, until after the time to appeal has expired, is in time; but a like service on the clerk is not in time and is irregular (id.) The omission of serving the notice of appeal on the clerk, within the time limited therefor, cannot be rectified (id.; Elsworth v. Fulton, 24 How. 20; Tripp v. De Bow, 5 How. 114; The People v. Eldridge, 7 How. 108).

c. Notice of appeal should be served on the attorney of record in the court below, not on the party (Trip v. De Bow, 5 How. 114; Crittenden v. Adams, 5 How. 110; see Rule 4, Court of Appeals, post). The service of such notice being a jurisdictional question, the party can take advantage of error in it any time, if he has not appeared so as to give jurisdiction in the case (b.) Where service was made upon the party only who had not appeared so as to give the court jurisdiction,-held that the appeal was a nullity (Tripp v. De Bow, 5 How. 114). In an action by executors for the construction of a will and judgment in favor of some of the defendants, on an appeal by the defendants as to whom the decision was adverse, notice of appeal must be served on the defendants who succeeded (Cotes v. Carroll, 28 How. 436).

d. Amendment.-Where there is a failure to give, in good faith, notice of appeal, there can be no amendment allowed (The People v. Eldridge 7 How. 108; Cotes v. Carroll, 28 How. 436). An oral notice is not a notice that can be amended (The People v. Eldridge, supra). A notice of appeal, if in good faith, may be amended in defects which do not destroy its substantial character (Fry v. Bennett, 16 How. 385; and see Irvin v. Moore, 13 id. 410; Wood v. Kelly, 2 Hilton, 335). But a notice cannot be amended so as to include an order, or judgment, not in the original notice (Fry v. Bennett, 16 How. 385; Bryant v. Bryant, 4 Abb. N. S. 128; 7 Rob. 49; and see 27 How. 378).

e. If notice of appeal has been regularly served, an error in the undertaking, or in failing to give an undertaking, may be corrected by amendment (Mills v. Thursby, 11 How. 129; Sternhaus v. Schmidt, 5 Abb. 66).

$328. (Am'd 1858, 1863.)

court.

Transmitting papers to appellate

If the appellant shall not, within twenty days after his appeal is perfected, cause a certified copy of the notice of appeal and of the judgment-roll, or, if the appeal be from an order, or any part thereof, a certified copy of such order and the papers upon which

the order was granted, to be transmitted to the appellate court, by the clerk with whom the notice of appeal is filed, the respondent may cause such certified copy to be transmitted by such clerk to the appellate court, and recover the expenses thereof, as a disbursement on such appeal, in case the judgment or order appealed from shall be in whole or in part affirmed, and this provision shall apply to all appeals heretofore taken, where the appeal has not been dismissed in the manner provided by the rules of the appellate court.

a. Where the certified copy of the notice of appeal and judgment-roll omitted the word "copy," and the name of the clerk, and was objected to on that ground, the court permitted an amendment (Lansing v. Russell, 4 How. 213).

See Court of Appeals' Rules, Rule 2.

$329. Review of intermediate orders.

Upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment.

b. A general term may on appeal "modify the judgment according to the justice of the case, without regard to technical errors, and the court of appeals has the same power (Brownell v. Winnie, 29 N. Y. 400; and see The People v. Super. of Richmond, 28 N. Y. 112; Beach v. Cook, 28 N. Y. 509).

c. On an appeal from the judgment to the general term, the court may review an order striking out a pleading (Cowles v. Cowles, 9 How. 361). On an appeal from a judgment to the court of appeals, that court will not review an order denying a motion to stay the proceedings (James v. Chalmers, 6 N. Y. 209). On an appeal from a judgment, the court will not review an order made at chambers or special term, and from which no appeal has been taken to the general term of the court below (Kanouse v. Martin, 6 How. 240; Grace v. Pierson, 1 N. Y. 228).

d. As to an order affecting the merits, see note to § 349; and see 53 Barb. 62.

§ 330. (Am'd 1849.) Judgment on appeal. Restitution.

Upon an appeal from a judgment or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. When the judgment is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment.

e. Extent of review.-On an appeal, only such parts of the judgment as are appealed from can be reviewed (Kelsey v. Western, 2 N. Y. 500).

f. Where a judgment is reversed, the court may send the cause back to be

properly disposed of at special term (Dutch Ref'd Ch. of Canajoharie v. Wood, 8 Barb. 421).

a. On an appeal from a judgment only, in an action tried by a jury, the court will not review the case upon the evidence, with a view to determine whether the verdict is against evidence. Such an appeal presents for the consideration of the court questions of law only (Bedell v. Com. Mut, Ins. Co. 3 Bosw. 148).

b. "Where the only error in a judgment is an excess in amount, and such excess consists of a distinct item, or can be definitely ascertained by mere computation, the appellate court may make the reversal of the judgment depend upon the election of the party to relinquish the ascertained excess, and in case of his so electing, may affirm the judgment" (Chouteau v. Suydam, 21 N. Y. 185; Boyd v. Foot, 5 Bosw. 111).

c. New trial.-On appeal to the general term on a case, if the judgment is reversed on a question of law, a new trial must be ordered (Halsey v. Flint, 15 Abb. 368). The court may reverse or affirm the judgment on a question of fact (Griffin v. Marquardt, 17 N. Y. 28; Edmonston v. McLoud, 16 id. 543; and see ante, p. 394, k); and it may, where a several judgment would have been proper in the court below, reverse a judgment as to one defendant, and affirm it as to another (Girard v. Beach, 4 E. D. Smith, 27; 10 How. 369). Ard where a judgment against two defendants is reversed wholly as to one and affirmed as against the other, and no special circumstances render a different disposition proper, the reversal is with costs to the appellant (Montgomery Co. B'k v. Albany City B'k, 7 N. Y. 459).

d. Judgment on dismissal.-On an appeal from the special to the general term, if the appeal be dismissed, the judgment should be: "It is ordered and adjudged that the appeal be dismissed, and judgment affirmed with costs, and that the respondent have execution for such costs when adjusted and inserted in the entry of the judgment" (De Agreda v. Mantel, 1 Abb. 130).

e. Reversal as to one defendant.-Upon appeal to the general term, the judgment may be reversed as to one defendant who appeals, without affecting the judgment as to another defendant who does not appeal, in cases where a several judgment below would be proper (Geraud v. Stagg, 10 How. 396; 4 E. D. Smith, 27; see Farrel v. Calkins, 10 Barb. 348, in note to § 347, post).

ƒ. Affirmance in part.—A judgment cannot be affirmed as to a part of the amount recovered and reversed as to the residue, where a new trial is ordered as to the part which is reversed (Story v. New York and Harlem R. R. Co. 6 N. Y. 86).

9. Judgment on affirmance.-Where a judgment entered at special term is appealed to the general term, and is there affirmed, a new judgment should not be entered (Eno v. Crooke, 6 How. 460; De Agreda v. Muntel, 1 Abb. 130). The simple judgment of affirmance, with the award of costs (it any), should be attached to the original roll (ib.) It is improper to enter up two judgments in the same court for the same demand (id.; Beers v. Hendrickson, 6 Rob. 53). The judgment of affirmance should not embrace any sum secured by the judgment appealed from (Halsey v. Flint, 15 Abb. 368).

h. Judgment, nunc pro tunc.-Where a party dies after the argument of an appeal, and before the decision thereon, the judgment may be entered nunc pro tunc as of a day before his death (Beach v. Gregory, 2 Abb. 203; and see De Agreda v. Mantel, 1 Abb. 130). The judgment, if against the decedent, may be enforced against his representatives (Beach v. Gregory, 2 Abb. 203).

i. Judgment on an appeal to the general term cannot be rendered as of a day subsequent to the death of a party appellant or respondent; but it may be rendered as of a day prior to such decease, and on which the court was in session and could have heard the appeal (De Ágreda v. Mantel, 1 Abb. 130; see Beach v. Gregory, 2 Abb. 203).

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