the plaintiff might discontinue, and in case he elected to do so within twenty days, and served notice of his election on the defendants, the defendants were required to stipulate to answer in a new action. The plaintiff, instead of serving notice of his election to discontinue, appealed to the general term, where, more than twenty days after the order at special term, the order was affirmed,―held, (1) that plaintiff was not required, in order to discontinue the action, to enter an order for that purpose, but service of a notice of his elec tion to discontinue would have effected a discontinuance; and (2) that it was too late, notwithstanding the appeal, to serve such notice after the twenty days limited by the order had expired (Ferry v. Bank of Cent'l N. York, 9 Abb. 100). a. Setting aside discontinuance.-The court, after a lapse of eigh teeen years, refused to set aside a discontinuance entered by consent (State of Indiana v. Woram, 15 Abb. 264). A discontinuance entered on the consent of the clerk of the attorney set aside (Irvine v. Spring, 7 Rob. 293; 35 How. 479). TITLE XI. Of Appeals in Civil Actions. CHAPTER I. APPEALS IN GENERAL. II. APPEALS TO THE COURT OF APPEALS. III. APPEALS TO THE SUPREME COURT FROM AN INFERIOR COURT. INFERIOR COURT. CHAPTER I. Appeals in General. SECTION 323. Writs of error abolished, and appeals substituted. 324. Orders made out of court, how vacated or modified. 325. Who may appeal. 326. Parties, how designated on appeal. 327. Appeal, how made. 328. Clerk to transmit papers to appellate court. 329. Intermediate orders affecting the judgment may be reviewed on the appeal from the judgment. 330. Judgment on appeal. 331. Time for appealing. 332. The like. § 323. Appeals substituted for writs of error. Writs of error in civil actions, as they have heretofore existed, are abolished; and the only mode of reviewing a judgment, or order, in a civil action, shall be that prescribed by this title. a. Writ of error, when proper.—A judgment upon an award must be reviewed by writ of error (Isaacs v. The Beth Hamed rash Society, 19 N Y. 584), and so must a determination of the supreme court in prohibition (Becker v. The People, 18 N. Y. 487); or mandamus prior to 8 April, 1859; (id.; The People v. Church, 20 N Y. 529; and see Laws 1859, ch. 174, and note to § 333, post); and as to writ of error in criminal cases under act of 1852, see People v. Barry, 10 Abb. 225); Summary proceedings to dispossess tenants (Freeman v. Odgen, 40 N. Y. 105). 6. Pauper appeal.—A party cannot appeal in forma pauperis (Ostrander v. Harper, 14 How. 16; and see 3 Paige, 273; and in note to § 471, post). c. Appeal by the people may be without any undertaking or security whatever, and such appeal shall operate as a stay of proceedings on the judgment appealed from (Laws 1858, ch. 37, § 2). d. Appeals by the people, State officers, &c., may be without security, and such appeal shall operate as a stay of proceedings on the judgment or order appealed from (Laws 1861, ch. 288). e. Appeals by municipal corporations shall be valid to stay proceedings without security or undertaking being given, unless the court shall otherwise direct; and in such case an undertaking executed in their official capacity, by either the mayor, comptroller, or counsel to the corporation, in the name and on behalf of said corporation, shall be valid for the purpose of such appeal (Laws 1859, ch. 262, § 1; and see in note to § 354, post). ƒ. Waiver of right to appeal.-The right to appeal is waived by acceptance of any benefit, under the judgment or order, as costs (Lewis v. Irving Ins. Co. 14 Abb. 140, n; see Noble v. Prescott, 4 E. D. Smith, 139; Radway v. Graham, 4 Abb. 468; Kelley v. Bloom, 17 Abb. 229; Lupton v. Jewett, 19 Abb. 220; 1 Rob. 639); but a plaintiff does not waive his right to appeal from a judgment by accepting the amount thereof (Bennett v. Van Sickel, 18 N. Y. 481; Benkard v. Babcock, 27 How. 391; 17 Abb. 421; 2 Rob. 175; see, however, Kelly v. Bloom, 17 Abb. 229; Brown v. Richardson, 7 Rob. 57). The prosecution to judgment and execution, of a limit bond, and collecting a portion of the judgment, does not prevent an appeal from the judgment rendered against the sheriff for the escape from the limits for which such bond was given (Lawrence v. Campbell, 32 N. Y. 455). The payment of a judgment, not being a compromise, does not prevent the party paying from appealing (Wells v. Danforth, 1 Code Rep. N. S. 415; and see in note to § 368, post). g. The court of appeals has the power to enforce a mutual stipulation, made between the parties in the court below, by which they agreed that the decision in such case in the court below should be final, and that no appeal should be taken. The duty of hearing appeals involves the jurisdiction, to determine whether a particular case is properly before the court on appeal, and to dismiss it if brought in violation of the agreement of the parties (Townsend v. The Masterson Stone Dressing Co. 15 N. Y. 587). h Relief on motion, instead of appeal.-Where facts have arisen, since a judgment was entered of such a nature that it is clear the judgment ought not to be executed, relief against the judgment may be given upon a motion to vacate same, provided the facts are undisputed (Wetmore v Law, 34 Barb. 515; and see The People v. The Mayor, 11 Abb. 66; ante, p. 274, a). An error that the judgment was entered for more than the verdict and interest and costs, should be corrected by motion in the court below, before an appeal to the court of appeals; it cannot be corrected after the decision of the case in the court of appeals (Griswold v. Haven, 26 How. 170; 16 Abb. 413). Thus where after judgment for plaintiff, defendant obtained an order for a new trial, which order was reversed in the court of 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 Ń. 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 orders 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). Any party aggrieved may appeal in the cases prescribed in this title. a. Party aggrieved.-Only the party who is aggrieved by the judg ment 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). 66 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 |