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a. After a remittitur filed in the court below, a motion in such a case for an amendment of the judgment, should be made in the court below (Frazer v. Western, 3 How. 235; Martin v. Wilson, 1 N. Y. 240); but the court does not lose jurisdiction until the remittitur is actually filed, as, until that be done, the court can order the remittitur to be sent back so as to restore jurisdiction (Burkle v. Luce, 3 How. 236; see also Dresser v. Brooks, 4 How. 207).

b. If the judgment of the court of appeals fails to determine any part of the subject of the appeal, the defect cannot be supplied by the court below (McGregor v. Buell, 1 Keyes, 153; 33 How. 450). And where the order entered on the decision of a cause in the court of appeals does not correctly state the judgment pronounced by the court, it will be amended on motion, notwithstanding the remittitur may have been sent to the court below and filed there (Palmer v. Lawrence, 5 N. Y. 455). After the action has been remitted to the court below, and the remittutur filed, the court below will not, and cannot, entertain a motion to re-remit the remittitur to the appellate court, in order that a motion may be there made to amend alleged errors of that court (Selden v. Vermilyea, 3 Sand. 683; 6 How. 41). Although where an appeal is regularly dismissed, and the remittitur sent down, the appellate court loses all control over the cause; yet, where an order dismissing an appeal is irregularly obtained, or entered upon a false or garbled affidavit, the appellate court will doubtless grant relief by vacating the order of dismissal; but, so long as the order of the appellate court dismissing the appeal stands, the court below is bound by it, and has no power to make an order impairing its force (Newton v. Harris, 8 Barb. 306).

c. Proceedings after decision of the court of appeals.—[After an appeal to the court of appeals has been dismisssed, or the judgment affirmed or reversed, the party in whose favor the decision is, obtains the remittitur from the clerk, and his next step is to obtain an order of the court from which the appeal was taken, and the decision or judgment of the court of appeals shall be and become the decision, or judgment, of the court below. This order is usually obtained ex parte, the remittitur filed, a copy of the order or judgment of the court of appeals served on the opposite party, with a copy of the costs and notice of adjustment; see 6 Rob. 497.]

d. The judgment of the court of appeals is to be remitted to the court below to be enforced according to law. It must therefore be brought formally to the notice of the court below, and be made one of its judgments. There is no other means of enforcing the judgment of the court of appeals, and, until the court below orders the judgment of the appellate court to become a judgment of the court below, no proceedings can be taken to enforce the judgment. Filing the remittitur with the clerk, and his adjustment of costs thereupon, will not suffice (Seacord v. Morgan, 17 How. 394; id. 398). But where the court of appeals had reversed the judgment below, and ordered a new trial, and the party who had obtained the reversal, and to whom the remittitur had been delivered, brought the cause to trial without filing the remittitur,--held that he could not insist that the court below had no jurisdiction to try, by reason of the remittitur not having been filed (Judson v. Gray, 17 How. 289; see 4 Abb. N. S. 257).

e. After an appeal has been determined in the court of appeals, the court below will not order a stay of filing the remittitur, to enable the applicant to move for a re-argument of the appeal (Jarvis v. Shaw, 16 Abb. 415). But such a stay will be ordered, after an order has been obtained from a judge of the court of appeals, for the opposite party to show cause why a re-argument should not be had (id.)

f. The costs of an appeal to the court of appeals should be adjusted by the clerk of the court below, and inserted in the entry of judgment in that court (Union India Rubber Co. v. Babcock, 1 Abb. 262).

g. Where an appeal is dismissed with costs, general costs follow, whether the appeal be from an order or a judgment (White v. Anthony, 23 N Y. 164). The court below cannot make any direction as to the costs in the court of appeals (Whitbeck v. Patterson, 22 Barb. 86).

a. As to entering judgment on remittitur, and for form of judgment, see Union India Rubber Co. v. Babcock, 1 Abb. 262.

b. Upon a remittitur from the court of appeals being filed in the court below, the latter court has no power to render any other judgment than one simply adopting that of the court of appeals as its own (Macgregor v. Buel, 17 Abb. 31).

c. The order making the judgment of the court of appeals the judgment of the court below, is an order of course, and the omission to enter it is a formal irregularity, which the court below may amend, and which will not be noticed in the court of appeals (Chautauque Co. B'k v. White, 23 N. Y. 347). The better practice is to move, on notice in the court below, on filing the remittitur, to make the judgment of the court of appeals that of the court below (id.; Young v. Brush, 18 Abb. 171).

d. Restitution.-Where the court of appeals directs a new trial, restitution will not be directed unless the remittitur contain an order to that effect, or the reversal is upon grounds which necessarily preclude the plaintiff from succeeding on a new trial (Young v. Brush, 18 Abb. 171).

334. (Am'd 1865.) Security or deposit on appeal, unless waived.

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 five hundred 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.

e. An appeal without an undertaking is a nullity. It makes no change in the proceedings (Kelsey v. Campbell, 38 Barb. 238; 14 Abb. 368).

f. After an appeal which is a nullity, the party may, if the time to appeal has not expired, disregard such appeal, and prosecute another (Kelsey v. Campbell, 38 Barb. 238; 14 Abb. 368; and see ante, p. 524, d).

g. A purchaser at a judicial sale, who appeals to the court of appeals from an order requiring him to complete his purchase, cannot be required to file any other security than that prescribed by this section. Such security is also sufficient, in such a case, to stay the proceedings (Griswold v. Fowler, 15 Abb. 368, note).

h. The objection that an undertaking to stay proceedings on appeal is insufficient, may be waived (Halsey v. Flint, 15 Abb. 368).

i. The affirmance mentioned in an undertaking on an appeal, means an affirmance by any tribunal having cognizance of the cause. So that on an undertaking, upon an appeal from the special to the general term, if the judgment is reversed at the general term, but subsequently the decision at general term is reversed, and the judgment at the special term affirmed, the sureties on the undertaking on the appeal to the general term are liable (Gardner v. Barney, 24 How. 467; Robinson v. Plimpton, 25 N. Y. 484).

j. Where in an action against several defendants who defended separately, the judgment of the court below was that one defendant (Lynes) recover against the plaintiff $2,008.98, and that the other defendants recover against the plaintiff $412.93. There was but one judgment record. The plaintiff appealed to the court of appeals, and gave one undertaking to cover the two sums adjudged to the defendants, and another undertaking to pay all costs

and damages on the appeal. On motion to dismiss the appeal on the ground that there should have been two undertakings in the sum of $500 each, one to Lynes, and one to the other defendants, the court denied the motion, and held, that as there was but one judgment, though it was for two sums, and as the appellant had given security for both those sums, and an undertaking for costs, &c., there had been a full compliance with the statute (Smith v. Lynes, 2 N. Y. 569; and see note to section 338).

a. On an appeal from two orders, an undertaking in the sum of $500 is not sufficient; but the undertaking may be amended (Schermerhorn v. Anderson, 1 N. Y. 430).

b. Where an appellant from a judgment, directing the payment of money, gave an undertaking to pay the amount of the judgment and "all damages awarded against the appellant upon the appeal," but made no mention of "costs," it was held, on motion to dismiss the appeal, that the undertaking did not comply with the requirement of this section (334), and that the appeal was not effectual for any purpose (Langley v. Warner, 1 N. Y. 606; Wilson v. Allen, 3 How. 369).

c. If the undertaking substantially complies with the statute, and secures to the respondent all that the law designed for him, it is sufficient (Colman v. Rowe, 4 Sme. & M. 747; Smith v. Norval, 2 Code Rep. 14; see 31 N. Y. 350, 446). It is no objection to the undertaking that it is for a larger sum than is necessary (Re Esterbrook, 5 Cow. 27). The undertaking should state the amount of the judgment (Harris v. Bennett, 2 Code Rep. 23), and the residences of the sureties (Blood v. Wilder, 6 How. 446). Where the undertaking is pursuant to the statute, it need not express any consideration on its face (Thompson v. Blanchard, 3 N. Y. 335; Seacord v. Morgan, 17 How. 394). The undertaking is binding whether the judgment be affirmed in whole or in part, and the obligors are liable to pay a judgment of affirmance as to one of several parties, although there is a reversal as to the others (id.; Gardner v. Barney, 24 How. 467; Seacord v. Morgan, 4 Trans. App. 319; 35 How. 487). The undertaking may be good for the purpose of sustaining the appeal, although it is wholly insufficient to stay the proceedings (Coithe v. Crane, 1 Barb. Ch. R. 21).

d. An affidavit of justification made by the sureties upon an appeal to the court of appeals, will be sufficient to render the appeal effectual, if it states that the sureties are each worth double the amount of the judgment; but in order to stay the proceedings upon the judgment, the sureties must also justify in double the amount ($500), required to be inserted in the undertaking to cover the costs of the appeal (Newton v. Harris, 8 Barb. 306; Hoppock v. Cottrell, 13 How. 461).

e. The undertaking only extends to the case of an affirmance of the judgment, and the sureties are not liable on the dismissal of the appeal (Drummond v. Husson, 14 N. Y. 60; see Poppenhusen v. Seeley, 3 Keyes, 150).

f. "Perfecting an appeal from a judgment at special term to the general term, or from a judgment of affirmance by the general term to the court of appeals, by giving such an undertaking as stays all further proceedings in the court below upon the judgment appealed from, neither divests the lien of either of the judgments appealed from, nor discharges the sureties on the appeal first taken from the special to the general term" (Parsons v. Travis, 2 Duer, 662). Therefore, where, on an appeal from a judgment at special term to the general term, a sum of money was deposited in lieu of an undertaking to stay proceedings on the judgment, the judgment was affirmed at the general term, and an appeal was taken to the court of appeals, and perfected by giving an undertaking to stay proceedings on the judgment, the appellant will not be allowed to withdraw the sum deposited on the appeal to the general term (b.) And where, pending the appeal, the money deposited is lost without any act of the respondent, the loss as between the respondent and appellant falls on the latter (Parsons v. Travis, 5 Duer, 650).

g. A defendant appealed to the court of appeals from a decision of the

general term, affirming an order denying his motion to vacate a judgment against him. He filed an undertaking in the sum of $500 for costs and damages,-held that the appeal was not, per se, a stay of proceedings, but that it was in the discretion of the court below to grant a stay in such a case (Tiers v. Carnahan, 3 Abb. 69; Ford v. David, 3 Abb. 385).

§ 335. (Am'd 1859, 1862, 1863.) On judgment for money; security to stay execution. Sureties becoming insolvent. Deposit in lieu of undertaking.

If the appeal be from a judgment directing a 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 the appeal be dismissed, the appellant will pay the amount directed to be paid by the judg ment, 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 of the court, be dismissed with costs. Whenever it shall be necessary for a party to any action or proceeding, to give a bond or an undertaking, with surety or sureties, he may in lieu thereof deposit with the officer, or into court, as the case may require, money, to the amount for which such bond or undertaking is to be given. The court, in which such action or proceeding is pending, may direct what disposition shall be made of such money, pending the action or proceeding. In any case, where, by this section, the money is to be deposited with an officer, a judge of the court at special term or at chambers, upon the application of either party, may, before such deposit is made, order it to be deposited in court instead of with such officer; and a deposit made pursuant to such order, shall be of the same effect as if made with such officer.

a. Stay of proceedings.-The undertaking required by this section must be filed and served with the notice of appeal and not afterwards. An undertaking pursuant to this section filed after the appeal has been perfected, will not operate as a stay of proceedings (N. Y. Cent. Ins. Co. v. Safford, 10 How. 344). See § 340, and note. Where the undertaking to stay proceedings

is irregular, but not void, the respondent cannot disregard the stay, but should move to set aside the undertaking (Parfitt v. Warner, 13 Abb. 471).

a. An appellant who has given an undertaking intending to stay the proceedings, but insufficient for that purpose, may, under § 327, be allowed time to file a further undertaking (Sternhaus v. Schmidt, 5 Abb. 66).

6. On an appeal to the court of appeals from an order of the general term granting a new trial, an undertaking, under § 334, does not stay proceedings in the order in the court below. To obtain a stay a motion must be made in the court below (McMahon v. Allen, 22 How. 193; Valton v. Nat. Loan Fund, 19 id. 515; Tiers v. Carnahan, 2 Abb. 69).

c. All proceedings on a judgment ordering a new trial and awarding restitution are stayed by an appeal, and the giving an undertaking as prescribed by §§ 334, 335, for an amount sufficient to cover the amount adjudged to be restored, and costs (Britton v. Phillips, 17 Abb. 33); but where the restitution is ordered by order apart from and subsequent to the judgment, then an appeal from the judgment would not stay proceedings on such order (id.)

d. A judgment directing the payment of money out of a fund in court, is not a judgment directing the payment of money within this section (Curtiss v. Leavitt, 1 Abb. 274; 10 How. 481). The liability of the sureties extends to any penalty awarded for delay (Horner v. Lyman, 4 Keyes, 237).

e. The undertaking should state the amount of the judgment appealed from (Harris v. Bennett, 2 Code Rep. 23). See section 339.

f. Sureties becoming insolvent.-The provision as to sureties becoming insolvent does not apply to the case of sureties in an undertaking given to secure a judgment as a condition of opening a default (Eiseman v. Swan, 11 Abb. 112). Before the power was conferred by this section the court could not order a new undertaking because the sureties in the first had become insolvent (Willett v. Stringer, 15 How. 310).

g. Action on undertaking.-On affirmance of a judgment the sureties on the appeal become liable, and no leave of the court is necessary before suing on the undertaking (N. Y. Cent. Ins. Co. v. Nat. Pro. Ins. Co. 10 How. 344); nor is it necessary to take the undertaking off the file of the court (id). h. An order to execute a new undertaking not complied with does not exonerate the sureties in the undertaking already executed (Jewett v. Crane, 13 Abb. 97).

i. Letting in sureties to defend.-Sureties may be let in to defend on the merits in the place of their principal, even after a judgment against him (Jewett v. Crane, 13 Abb. 97).

§ 336. (Am'd 1849.) If judgment be to deliver documents, &c., they must be deposited.

If the judgment appealed from direct the assignment or delivery of documents, or personal property, the execution of the judgment shall not be stayed by appeal, unless the things required to be assigned or delivered be brought into 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.

j. In an action of claim and delivery, where judgment is rendered for

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