tered before the appeal taken, but after the order appealed from was made (Pumpelly v. Village of Owego, 13 Abb. 387; 22 How. 385; see Soverhill v. Post, 22 How. 386); and an appeal lies to the supreme court from an order of the city court of Brooklyn, denying a motion for a new trial (Suydam v. Grand Street & Newtown R. R. 17 Abb. 305; Bennett v. City of Brooklyn, 19 How. 310). Where an appeal is taken from the judgment, and also from the order denying a new trial, the fact that the party had no right to move for a new trial does not prejudice his appeal from the judgment (Jackson v. Fassett, 12 Abb. 281). To present a question of fact upon the evidence, or to obtain a new trial on the ground of surprise, newly discovered evidence, or the like, a motion must be made at special term before judgment (Morrison v. N. Y. & Harlem R. R. Co. 32 Barb. 568; Morange v. Morris, 12 Abb. 164; 32 Barb. 650).

a. An appeal to the court of appeals from an order denying a motion for a new trial, does not, per se, prevent the respondent entering judgment in the court below. Such judgment does not affect the appeal. The court below cannot stay the proceedings on the appeal from the order (Valton v. Nat. Loan Fund Ass. Soc. 19 How. 515; see McMahon v. Allen, 22 How. 193).

b. Security on appeal.-On appeals from orders no security is required (Beach v. Southworth, 6 Barb. 173; Nicholson v. Dunham, 1 Code R. 119; Allen v. Johnson, 2 Sand. 629; Emerson v. Burney, 6 How. 32; Cook v. Pomeroy, 10 ib. 103); unless a stay of proceedings is desired (Bacon v. Reading, 1 Duer, 622); in which case the court may grant a stay (Genin v. Chadsey, 12 Abb. 69; Belmont v. Erie R. R. Co. 6 Abb. Ñ. S. 442; Clark v. Brooks, 2 Daly, 159, and now see § 350, post).

c. Where an undertaking is required as a condition of granting a stay of proceedings, pending an appeal from an order, such undertaking is an available security to the respondent if the order be affirmed (Winterhoff v. Siegert, 13 Abb. 182).

d. An appeal from an order to the general term is not, per se, a stay of proceedings (Story v. Duffy, 8 How. 487; Forbes v. Oaks, 2 Abb. 120; Bacon v. Reading, 1 Duer, 622; Hicks v. Smith, 4 Abb. 285; Johnson v. Scriven, 3 Abb. 208; Valton v. Nat. Loan Fund Asso. 19 How. 515; Christy v. Libby, 3 Abb. N. S. 423).

e. An appeal from an crder which grants a favor to the appellant, "provided he complies with the terms within a certain specified time," does not operate to enlarge the time for complying with such terms (Ferry v. B'k of Cent. N. Y. 9 Abb. 100).

f. Hearing.-Where the necessary papers upon the appeal are not submitted to the court, the appeal will be dismissed. So held where the papers did not show whether the appeal was taken from a judgment upon a demurrer, or from an order striking out a demurrer as frivolous (Sun Mut. Ins. Co. v. Diright, 1 Hilton, 50).

g. Formal and preliminary objections, not involving the merits of a motion, will not be considered upon appeal, unless it affirmatively appears that they were taken and overruled when the motion was brought on for hearing (Merritt v. Thompson, 1 Hilton, 551).

h. Objection to motion papers which might have been remedied at special term by amendment, if the objection had been there made, cannot be urged on the argument of the appeal (Jackson v. Smith, 16 Abb. 201).

i. On an appeal from an order on a motion where no affidavits were read in opposition to those in support of the motion, every intendment is in favor of the statements in those affidavits (Jackson v. Smith, 16 Abb. 201).

j. On an appeal from an order proper to be granted only as a matter of favor, the court at general term in support of the order will presume, till the contrary appears, that it was so granted (Leighton v. Wood, 17 Abb. 177).

k. Where on a motion to set aside proceedings for irregularity, the irregularity is not stated in the notice of motion, and the motion is denied, the court at general term, on an appeal from the order denying such motion, may

presume the denial was for the defect in the notice (Lewes v. Graham, 16 Abb. 126; and see 14 Abb 449).

a. On an appeal from an order, the objection that the order does not conform in its terms to the decision actually made cannot be considered (Ehle v. Haller, 6 Bosw. 661).

b. The principle that the finding of fact of an inferior tribunal is not to be reversed by the appellate court, merely because it is against the weight of evidence, has no application to appeals to the general term from orders made in the progress of the action, upon affidavits (Brodsky v. Ihms, 16 Abb. 251; 25 How. 474).

c. When an appeal is taken from a judgment, and there has been an appeal also from an order denying a motion for a new trial on the judge's minutes, the better course is to hear both appeals on the argument of the appeal from the judgment (Lane v. Bailey, 45 Barb. 119; 30 How. 76; 1 Abb, Ñ. S. 407).

Chamber order to be entered before ap

$ 350. (Am'd 1870.) peal. Stay of proceedings.

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.

And proceedings under an order appealed from may be stayed by an order of the court, or a judge thereof, on such terms as may be just.

d. Orders granted by a justice at chambers, ex parte, under § 405, need not be entered with the clerk (Savage v. Relyea, 3 How. 276. But upon motions made upon notice under § 401, the affidavits, &c., used on the motion must be filed with the clerk of the county where the venue is laid (id.; 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. And the order or decision in such cases must be entered with the clerk of the county in which such papers are filed (id.) An order improperly entered may be struck out on motion (Bedell v. Powell, 3 Code Rep. 61; see ante, p. 558, c, and Kelly v. Thayer, 34 How. 163).

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. New trial. 353. Appeal, when to be taken.

354. Notice of appeal to be served on justice, and costs of return to be paid. Appeals in New York city. Security.

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.

363. Justice dead, insane, or absent.

364. Hearing upon return. Dismissing appeal, if not brought on. 365. Appeal to be heard on the original papers.

366. Judgment on appeal. New trial.

367. Judgment-roll.

368. Costs, how awarded.

369. Restitution.

370. Setting off costs and recovery.

371. The costs on appeal.

§ 351. (Am'd 1849.) Existing laws repealed.

All statutes now in force, providing for the review of judgments in civil cases, rendered by courts of justices of the peace, by the marine court of the city of New York, by the justices' courts in the city of New York, by the municipal 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 judgment shall be an appeal, as prescribed by this chapter.

a. Marine court.-Proceedings in the marine court cannot be reviewed in the New York common pleas by motion. After a transcript filed with the county clerk, a motion to set aside a judgment of the marine court must be made in that court, but, after entry of an order in that court, setting aside the judgment, a motion may be made in the common pleas to set aside the execution on such judgment (Mc Cunn v. Barnett, 2 E .D. Smith, 521).

b. The New York common pleas has no power on motion to reverse or vacate a judgment of the marine or district court (Martin v. Mayor of N. Y. 20 How. 87). It may, however, where a transcript has been filed, perpetually enjoin the enforcement of such a judgment (id.)

c. Laws of 1870, ch. 582, extend the jurisdiction of the marine court to claims not exceeding one thousand dollars, and provide that any court of

record in the city of New York, may transfer any action of libel, assault, battery or false imprisonment, pending therein, to said marine court for trial. The number of justices of said court is increased to six, the said justices are prohibited from receiving any fees to their own use, or from practising in any court, or acting as referee, and their jurisdiction in summary proceedings to dispossess tenants is taken away.

a. District courts.-In any action commenced in a district court of the city of New York, where the claim or demand exceeds $100, upon the application of the defendant, the justice may make an order removing the same at any time after issue joined and before the trial, into the New York common pleas, upon the defendant executing to the plaintiff an undertaking with one or more sufficient sureties, to be approved by the justice in whose court the action is commenced, to pay to the plaintiff the amount of any judgment that may be awarded against the defendant by the said court of common pleas (Laws 1857, ch. 344); after a defendant has presented an undertaking to remove under the above-mentioned statute, the justice has no power to allow the plaintiff to reduce his claim below $100, so as to prevent a removal (Hogan v. Devlin, 2 Daly, 184).

b. City of Buffalo.-In cases arising in justices' courts in the city of Buffalo, an appeal lies from the county court to the superior court of that city only, and the decision of the latter court is final (Burgart v. Stock, 12 How. 559).

§ 352. (Am'd 1857, 1862, 1863, 1864, 1865.) Review of judgments. New trial.

When a judgment shall have been rendered by the general term of the marine court of the city of New York, or by a justice of a justices' court of that city, the appeal shall be to the court of common pleas for the city and county of New York.

The appeal from the general term of the marine court, prescribed herein, shall be from an actual determination at such general term only, and shall be taken within twenty days after judg ment by such general term. In the city of Buffalo, the appeals from the courts of justices of said city shall be to the superior court of said city. When rendered by any of the other courts enumerated in section three hundred and fifty-one, the appeal shall be to the county court of the county where the judgment was rendered. On such appeal, when the amount of the claim or claims for which judgment was demanded by either party in his pleadings in the court below shall exceed fifty dollars, or when, in an action to recover the possession of personal property, the value of the property as assessed and the damages recovered shall exceed fifty dollars exclusive of costs, a new trial shall be had in the county court in the following appellate cases:

1. When the judgment was rendered upon an issue of law, joined between the parties.

2. When it was rendered upon an issue of fact joined between the parties, whether the defendant was present at the trial or not.

And when the appeal is to the superior court of Buffalo, in the cases in which by the terms of this section, a new trial may be had, such new trial shall be had in the said superior court.

Provided, however, that the appellant may, in cases where the amount for which judgment is demanded by either party in his pleadings exceeds fifty dollars, or where, in an action to recover the possession of personal property, the value of the property as assessed and the damages recovered shall exceed fifty dollars, exclusive of costs, state in the notice of appeal that such appeal is taken upon questions of law only, in which case a new trial shall not be had in the appellate court, but the appeal shall be heard and determined in the same manner as if such amount, or said value and damages, were fifty dollars or under. Provided, however, that in the city and county of New York appeals from the marine and district courts shall be taken and heard, and returns made in the same manner as heretofore.

a. New trial.—The new trial is a matter of right, of which the appellant cannot be deprived, on the ground of any particularity in the statement in his notice of appeal of the ground of appeal (Fowler v. Westervelt, 17 Abb. 59). Where there is an application for a new trial, the county court must hear and decide upon all the questions raised by the appellant, as well those upon which the judgment is alleged to be erroneous, as those on which the appellant seeks a new trial (Cook v. Swift, 10 Abb. 212).

b. The provision for retrial of cases tried in justices' courts does not apply to the city of New York (Mcllhenny v. Wasson, 1 Daly, 285).

c. It is the amount claimed in the pleadings, and not the amount of the recovery, which gives the right to a retrial (Ovenshire v. Adee, 27 How. 368). Appeal by infants, see ante, p. 101, e.

§ 353. (Am'd 1851, 1852.) Appeal.

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.

d. The notice of the judgment in cases where the process is not personally served, must be in writing, and must proceed from the judgment creditor (Pearson v. Lovejoy, 53 Barb 407). The time to appeal, where the process was personally served, is computed from the date of the actual entry of the judgment, and not from the date of the decision upon which the judgment is entered (Fachs v. Pohlman, 2 Daly, 210). Judgment entered 14th of November, notice of appeal served 5th of December,-held too late (Young v. Whitcomb, 46 Barb. 615).

e. A general appearance by the respondent in the appellate court and noticing the appeal for argument, amount to a waiver of the right to have the ap