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to this section, on the judgment being affirmed, the stay ceases, and the respondent may proceed to collect his judgment (Onderdonk v. Emmons, 2 Hilton, 504).

a. Where the county court reversed the judgment of the justice, and the supreme court reversed the judgment of the county court and affirmed that of the justice with costs,-held that the sureties in an undertaking given pursuant to that section, were liable, not merely for the amount of the judgment in the county court, but for the amount recovered in the supreme court (Smith v. Crouse, 24 Barb. 433).

b. The liability of sureties, on an undertaking under this section, does not arise until the judgment is affirmed, and execution therein returned unsatisfied (Onderdonk v. Emmons, 2 Hilton, 504).

c. An action will not lie against a judge, for an error in judgment, in approving an invalid undertaking (Chickering v. Robinson, 3 Cushing, 543).

§ 357. (Am'd 1849.) Stay of execution.

The delivery of the undertaking to the court below shall stay the issuing of execution; or, if it have been issued, the service of a copy of the undertaking, certified by the court below, upon the officer holding the execution, shall stay further proceedings thereon.

d. On appeal from the judgment of the marine, or one of the justice's courts of the city of New York, if an execution has been issued from that court, and the officer has levied upon the defendant's goods, the giving of an undertaking on appeal, pursuant to § 357 of the code, and the service of a certified copy on the officer, arrest the proceedings in the condition in which they are at the time of such service. But the levy is not thereby discharged, nor can the appellant require the goods levied upon to be returned to him, before the appeal is disposed of (Smith v. Allen, 2 E. D. Smith, 259). But where an execution was handed to a constable on the 4th, and on the 5th the defendant perfected an appeal and served a copy of the undertaking on the plaintiff in the forenoon of the same day, and the plaintiff, on the same day, and before the constable was served with a copy of the undertaking, directed him to levy on a horse of the defendant, the court refused to sanction such a proceeding, and set aside the levy (Jones v. Mc Carl, 7 Abb. 418).

§ 358. (Am'd 1849.) Death of justice.

Where, by reason of the death of a justice of the peace, or his removal from the county, or any other cause, the undertaking on the appeal cannot be delivered to him, it shall be filed with the clerk of the appellate court, and notice thereof given to the respondent, or his attorney, or agent, as provided in section three hundred and fifty-four; it shall, thereupon, have the same effect as if delivered to the justice.

§359. (Am'd 1849, 1852.) Substituted service of notice of appeal. When, by reason of the death of a justice of the peace, or his a bsence from the county, or any other cause, the notice of appeal

cannot be served as provided by section three hundred and fiftythree, it may be served by leaving the same with the clerk of the county.

$ 360. (Am'd 1852, 1862, 1865, 1866.) Return.

The court below shall thereupon, after ten days, and within thirty days after service of the notice of appeal, make a return to the appellate court of the testimony, proceedings and judgment, and file the same in the appellate court. The return may be compelled by attachment. But no justice of the peace shall be bound to make a return, unless the fees, prescribed by the last section of this chapter, be paid on the service of the notice of appeal; provided, however, that in cases where the amount for which judg ment is demanded, by either party in his pleadings in the court below, exceeds fifty dollars, or where the value of the property recovered, as appears from the verdict or judgment, shall exceed fifty dollars, the testimony need not be returned; but in such case the court below shall return the process by which the action was commenced, with the proof of service thereof, and the pleadings or copies thereof, the proceedings and judgment, together with a brief statement of the amount and nature of the claim or claims litigated by the respective parties, and in all cases the notice of appeal shall be annexed to the return; but in cases where the appellant shall, in accordance with the provisions of section three hundred and fifty-two of this act, state in the notice of appeal that such appeal is taken upon questions of law only, the court below shall return to the appellate court the testimony, proceedings and judgment.

a. The return.-The justice, in making his return, acts ministerially (McDowell v. Buffum, 31 How. 154), and is responsible to the party injured for any errors therein (Houghton v. Swarthout, 1 Denio, 509). Unless in the excepted cases, the return should contain all the evidence used on the trial, documentary and oral (Ogden v. Sanderson, 3 E. D. Smith, 167; Orcutt v. Cahill, 24 N. Y. 578), and the pleadings; a statement of the testimony and judgment is not sufficient. It should also state when the process was returnable, the day issue was joined, the adjournments, if any, the date of the trial, and the day whereon judgment was rendered (Peters v. Diossy, 3 E. D. Smith, 115: Roulston v. McClelland, 2 id. 60); all the proceedings (Belshaw v. Colie, 3 Code R. 184; see Dennison v. Carnahan, 1 E. D. Smith, 144, 147, note; MeCafferty v. Kelly, 2 Sand. 637); and the notice of appeal (Bush v. Dennison, 14 How. 307). If the notice of appeal is not returned, the appellate court will dismiss the appeal (id.; Cabre v. Sturgis, 1 Hilton, 160). Where the return fails to show what judgment, if any, has been rendered, the court will on that ground alone dismiss an appeal with costs (Woodside v. Pender, 2 E. D. Smith, 390; contra, see Klenck v. De Forest, 3 Code Rep. 185). Where the return does

not state that it contains all the evidence, the court will not presume there was evidence, not in the return, sufficient to warrant the judgment (Calligan v. Mix, 12 How. 495; see 13 How. 96; see, however, Prosser v. Secor, 5 Barb. 607). This section by providing, that in certain cases the justice need not return the evidence, does not mean that in such cases the appellate court is to determine an issue of law on parol testimony of what took place in the court below (Balja v. Radley, 37 How. 120). Where the amount claimed exceeds $50, the justice cannot be compelled to make a return of the testimony (Hobbs v. Wetherwax, 38 How. 385).

a. If the return is defective, an amendment should be procured by application to the appellate court, for an order upon the court below to make a further or full return in relation to the matters alleged to be omitted or defectively set forth therein (Rawson v. Grow, 4 E. D. Smith, 18; Fairbanks v. Corlies, 3 id. 583; Smith v. Johnston, 30 How. 374). The motion may be on affidavit, or other proof (Capewell v. Waterman, 2 E. D. Smith, 180; Lynsky v. Pendegrast, id. 43). Parties should not bring on the appeal for argument until the return is complete (McAllister v. Sexton, 4 id. 41); for on the argument the return is conclusive as to what transpired in the court below, and affidavits cannot be read to contradict or add to it (Rawson v. Grow, id. 18; Trust v. Delaplaine, 3 id. 216; Spencer v. Beck, 1 Hilton,276; Kelly v. Brower, id. 514; Mitchell v. Menkle, id. 142; Kilpatrick v. Carr, 3 Abb. 117); and this applies to the charge of the justice to the jury (Garrison v. Pearce, 3 E. D. Smith, 255). Whether an allegation, that the amount of recovery as certified in the return is erroneous by reason of a clerical error of the justice, will be inquired into and determined upon affidavits produced on the appeal, without any preliminary movement to obtain a further or amended return, query? (Althause v. Rice, 4 id. 347; Capewell v. Ormsby, 2 id. 180; Kilpatrick v. Carr, 3 Abb. 117; Lynsky v. Pendegrast, 2 E. D. Smith, 43; Francois v. Oecks, id.)

b. The return must be submitted on the argument (Smith v. Van Brunt, 2 E. D. Smith, 534; see section 362, and note).

c. Where judgment is rendered in a justice's court without proof, and on default, upon a constable's return of the personal service of a summons and complaint, the statute must be strictly complied with. The justice's return in such a case should show that a copy of the complaint was served, verified by the party pleading, or his agent or attorney, as the case may be. A return which stated "that the summons was, by the return duly made thereon by R. G., one of the constables of the city and county of New York, certified to have been served with the complaint verified, on the defendant in person in the city of New York, on," &c., that on the return-day plaintiff appeared, but defendant did not, whereupon judgment was rendered for plaintiff for the amount specified in the summons, was held to be insufficient, although a verified complaint was annexed to the return. The return did "not show that the complaint upon which the judgment was rendered was served with the summons, or upon what complaint the judgment was given;" and the judgment was reversed (Spring v. Baker, 1 Hilton, 526).

d. An original summons in a district court, made returnable at 9 A. M. and having been returned, personally served, a judgment rendered thereon by default, is regular, and cannot be impeached upon appeal to the court of common pleas by affidavits showing the copy summons, served upon the defendant, to have been made returnable at 10 A. M. If the constable did not serve a copy of the summons upon him (the defendant) he must seek his remedy by an action for a false return. The return cannot be impeached on an appeal from the judgment (Haughey v. Wilson, 1 Hilton, 259).

§ 361. Justice out of office.

When a justice of the peace, by whom a judgment appealed from was rendered, shall have gone out of office before a return

is ordered, he shall nevertheless, make a return in the same manner, and with the like effect, as if he were still in office.

$362. (Am'd 1857.) Further return.

If the return be defective, the appellate court may direct a further or amended return as often as may be necessary, and may compel a compliance with its order, by attachment. And the court shall always be deemed open for these purposes.

a. Where an order for an amended return from a justice's court is granted at the first term of the county court after the filing of the original, it is improper to place the appeal upon the calendar of the county court until the return of the justice's court has been perfected by the filing of the amended return. Where the county court, before the filing of the amended return, dismisses the appeal under § 364 of the code, it acts ministerially, and the dismissal is a nullity, and a mandamus may issue in like manner as if the appeal had not been dismissed, requiring the county court to proceed to judgment (The People v. Clinton County Judge, 13 How. 277).

b. Exceptions and rulings of the court below, not appearing in the return, cannot be brought to the notice of the appellate court, except by compelling a further or amended return (Hyland v. Sherman, 2 E. D. Smith, 235).

c. Where the return of a justice on appeal failed to show in what manner he had disposed of a material question touching the admissibility of evidence, the case was ordered to stand over for a further return, upon the coming in of which a final decision was rendered (Matthews v. Fiestel, 2 E. D. Smith, 91).

See note to § 361, and rule 53.

8363. Justice dead, insane, or absent.

If a justice of the peace, whose judgment is appealed from, shall die, become insane, or remove from the State, the appellate court may examine witnesses on oath, to the facts and circumstances of the trial or judgment, and determine the appeal, as if the facts had been returned by the justice. If he shall have removed to another county within the State, the appellate court may compel him to make the return, as if he were still within the the county where the judgment was rendered.

d. A return to a certiorari made by a judge who was out of office before the service of the certiorari upon him,—held valid (Conover v. Derlin, 15 How. 470; The People v. Conover, 6 Abb. 228; Harris v. Whitney, 6 How. 175).

§ 364. (Am'd 1852, 1863.) Noticing appeal for hearing. Dismissing appeal if not brought on. New trial.

If a return be made, and the appeal is from a judgment where a new trial may not be had as provided by this chapter, it may be brought to a hearing at a general term of the appellate court, upon notice by either party of not less than eight days. It shall

be placed upon the calendar, and continues thereon without further notice until finally disposed of. But if neither party bring it to a hearing before the end of the second term, the court shall dismiss the appeal, unless it continue the same by special order for cause shown. If the appeal is from a judgment where a new trial may be had, it may be brought to a hearing or trial at any term of the county court at which a petit jury shall be summoned to attend, upon the same notice as provided for actions in the supreme court; at least eight days before the court, the party desiring to bring on the appeal shall serve a note of issue on the clerk, and the clerk shall thereupon enter the cause on the calendar according to the date of the return. And the provisions of this chapter for a new trial shall apply as well to appeals heretofore taken and now pending, as those hereafter to be brought.

a. Proceeding on hearing of appeal.-On appeal from a justice's court, under sections 353 and 366, the appellate court must hear at the same time and pass upon all the questions, both those of error in law and of error in fact, and of a motion for a new trial (Cook v. Swift, 10 Abb. 212; 18 How. 454). Where the county court refused to hear argument upon the whole case, at the same time requiring the appellant to argue his motion for a new trial before proceeding with the case, or lose the benefit of it, the supreme court reversed the judgment, and left the cause pending upon the appeal, in the county court, to be proceeded with anew (id.)

b. The judgment appealed from will be reversed by default, if the respondent does not appear to argue the appeal (Whitney v. Bayard, 2 Sand. 634).

c. Where notice of hearing has been given by the appellant, the respondent may move for an affirmance of the judgment, ex parte, although he has given no notice of argument (Constant v. Ward, 1 Cal. R. 333; Townshend v. Keenan, per Hilton, J., 16 March, 1859).

§ 365. (Am'd 1849, 1869.) Papers on appeal.

The appeal shall be heard on the original papers, or certified copy, and no copies thereof need be furnished for the use of the court.

§ 366. (Am'd 1849, 1851, 1862, 1865.) ment on appeal. Error in fact. trial.

Hearing on appeal. Judg Judgment by default. New

Upon the hearing of the appeal, the appellate court shall give judgment according to the justice of the case, without regard to technical errors and defects which do not affect the merits.

In giving judgment, the court may affirm or reverse the judg ment of the court below, in whole or in part, and as to any or all the parties, and for errors of law or fact.

If the appeal is founded on an error in fact in the proceedings,

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