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).

62.

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

$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 ið. 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).

f. 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).

g. 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 Agreda v. Mantel, 1 Abb. 130; see Beach v. Gregory, 2 Abb. 203).

a. Restitution.-This provision as to restitution is not imperative, but the court is to exercise its discretion (Coster v. Peters, 7 Rob. 386; Estus v. Baldwin, 9 How. 80). An order or judgment for restitution cannot be had ex parte (Sheridan v. Mann, 5 How. 201). An appeal to the court of appeals, and reversed there, the court below may order restitution (Whitbeck v. Patterson, 22 Barb. 87; Safford v. Stevens, 2 Wend. 164; see Britton v. Phillips, 24 How. 111; and ante, p. 360, and post, § 369). Where restitution is directed by the court of appeals, it is irregular to enter judgment of restitution ex parte (Young v. Brush, 18 Abb. 171). In general, restitution will not be directed unless the remittitur contain such direction (id).

§ 331. (Am'd 1857, 1858.) Time for appealing.

The appeal to the court of appeals, under subdivision two, of section eleven, of this code, must be taken within sixty days after written notice of the order shall have been given to the party appealing; every other appeal allowed by the second and third chapters of this title (§§ 333 to 347), must be taken within two years after the judgment shall be perfected by filing the judg ment-roll.

See § 11, ante, as to time for appealing in cases arising in justice's courts.

b. When appeal may be taken.-An appeal cannot be taken until after entry of the judgment appealed from (Bradley v. Van Zandt, 3 Code Rep. 217; McMahon v. Harrison, 5 How. 360). But it may be taken at any time, on the same day that the judgment is entered; and in that case the court will not inquire which was the first, the entry of the judgment, or the taking the appeal (Blydenburg v. Cotheal, 5 How. 200; and see Jones v. Porter, 6 How. 286). A stay of proceedings on the judgment does not extend the time to appeal (Renouil v. Harris, 2 Code Rep. 71).

c. The time to appeal to court of appeals from an order at general term, affirming an order denying a motion to set aside a judicial sale, is two years (King v. Platt, 3 Abb N. S. 174; 34 How. 26).

d. Compelling entry of judgment.—If the party in whose favor judgment is rendered omit to perfect his judgment, the other party may compel him to do so, in order that an appeal may be brought (B'k of Geneva v. Hotchkiss, 5 How. 478; Lentilhon v. Mayor of New York, 1 Code Rep. N. S. 111; Purdy v. Peters, 15 Abb. 160; and see Peet v. Cowenhoven, 14 Abb. 56). See note to § 332, infra.

§ 332. (Am'd 1849.) Other appeals within thirty days.

The appeal allowed by the fourth chapter of this title must be taken within thirty days after written notice of the judgment or order shall have been given to the party appealing.

e. Time to appeal.-From an order entered on May 27, a notice of appeal served on June 27 is in time (Gallt v. Finch, 24 How. 193). Semble, where the notice of the judgment is served by mail, the opposite party has double time to appeal (Dorlon v. Lewis, 7 How. 132).

f. Stay of proceedings.-A stay of plaintiff's proceedings, except entry of judgment, prevents his giving notice of the judgment so as to limit the time to appeal therefrom (White v Klinken, 16 Abb. 109).

g. Waiver of objection.—Giving an admission of due service of a notice of appeal, is a waiver of the objection that it was not served within

the time to appeal (Struver v. Ocean Ins. Co. 9 Abb. 23). Semble, a motion to dismiss an appeal, as not brought in time, may be waived by laches in moving (Stevenson v. McNitt, 27 How. 335).

a. Extending time.-The code prescribes the time within which an appeal may be taken from the special to the general term; and it is not in the power of the court to extend that period, or to allow an appeal where the time has been suffered to expire (Code, §§ 332, 405; Wait v. Van Allen, 22 N. Y. 319).

b. It is improper for the court to attempt to effect the same thing, indirectly, by ordering a new date to the judgment (Humphrey v. Chamberlain, 11 N. Y. 274). And the supreme court will not set aside a judgment for the mere purpose of relieving a party from the loss of the remedy by appeal, although from no fault or neglect on his part (Marston v. Johnston, 13 How. 93; and see Fry v. Bennett, 16 id. 385; 7 Abb. 352).

c. Party appealing.—The term "party appealing means the party in whom is the right to appeal (Beach v. Gregory, 2 Abb. 209).

d. Notice of judgment.-This must mean of a judgment so perfected in form that on the very day on which notice is given of its entry, the appellant has on the record a knowledge of all the matters necessary to the perfection of an appeal, and of a stay upon it. One of these matters is the amount of the judgment, and that depends on the amount of the costs. So that while the amount of the costs is kept open [and is uncertain], no notice of the entry of the judgment can be given, which will limit the time for an appeal (Sherman v. Wells, 14 How. 527). Thus, where a party adjusted his costs, and entered judgment, and served notice of the judgment on the 20th February, and afterwards stipulated to resubmit the costs for adjustment, and that any deduction made should be deducted from the judgment,-held that such stipulation was in effect a revocation of the notice of the judgment, and that to limit the time to appeal, a new notice of the judgment should have been given after the readjustment of the costs (id.; Leavy v. Roberts, 8 Abb. 310; and see Bowman v. Earle, 3 Duer, 691), unless after the order is made, or judgment is rendered and entered, or filed and constructively entered, so as to become a part of the record, or minutes of the court, the party has some written notification thereof, by act of the prevailing party or his attorney, his time to appeal continues without limitation. The adverse party may acquire knowledge of the order or judgment; he may examine it on the files of the court, or on its records, and procure a copy of it; but the knowledge so acquired is inoperative to limit his time for appealing (Fry v. Bennett, 16 How. 402; 7 Abb. 352; see Leavy v. Roberts, 8 Abb. 310; The People v. Spaulding, 9 Paige, 607; Gay v. Gay, 10 id. 370; Sherman v. Postley, 45 Barb. 348; Champion v. Plymouth Cong. Soc. 42 Barb. 441).

e. The time to appeal from an order does not commence to run until written notice of the order, after it has been duly entered. A notice of the order before it has been entered will not limit the time to appeal (Gallt v. Finch, 24 How. 193; Staring v. Jones, 13 How. 423). And where an issue of fact is tried by the court without a jury, and a decision rendered thereupon, notice of the decision given by the prevailing party, before the actual entry of the judgment, is not such a notice of the judgment as will limit the time to appeal (Leary v. Roberts, 8 Abb. 310).

f. A party who undertakes to limit the time for appeal must be held to strict practice. A notice of judgment, not signed by the party, or his attorney, and without any place of business indorsed or mentioned, is a nullity, and will not limit the time to appeal (Yorks v. Peck, 17 How. 192); so a notice of judgment is defective where it omits to state the clerk's office in which the judgment is entered, and such a notice does not limit the time to appeal (Valton v. Nat. Loan Fund Ass. Soc. 19 How. 515).

g. In order to limit the right of appeal, a service of a written notice on the party is necessary, even where the appeal is from a judgment or order entered by the appellant himself (Rankin v. Pine, 4 Abb. 309-general term, second district). Thus, where the cause was referred, and a report made in

favor of the plaintiff, for a sum smaller than that claimed, on July 19, 1856, the plaintiff entered judgment for the amount found due him. On the 19th of November following, the plaintiff served notice of appeal. On motion to dismiss said appeal, on the ground, amongst others, that it was too late, it not appearing that the defendant had ever served the plaintiff with written notice of the judgment, the motion was denied.

CHAPTER II.

Appeals to the Court of Appeals.

SECTION 333. Appeal, in what cases. Judgment on verdict, subject to the opinion of the court.

334. On appeal, security must be given, or deposit made, unless

waived.

335. On judgment for money; security to stay execution. New undertaking on sureties in the first becoming insolvent. Deposit in lieu of undertaking.

336. If judgment be to deliver document or personal property, it must be deposited or security be given.

337. If judgment be to execute conveyance, it must be executed and deposited.

338. Security where judgment is to deliver real property, or for a sale of mortgaged premises.

339. Stay of proceedings upon security being given.

340. Undertakings may be in one instrument or several.
341. Security to be approved and sureties to justify.

342. Perishable property may be sold, notwithstanding appeal.
343. Undertaking must be filed.

§ 333. (Am'd 1857.) Appeal, in what cases. Judgment on verdict, subject to the opinion of the court.

(1.) An appeal may be taken to the court of appeals, in the cases mentioned in section eleven.

(2.) When any of the courts mentioned therein shall, at general term, render judgment upon a verdict taken subject to the opinion of the court, the question or conclusions of law, together with a concise statement of the facts upon which they arose, shall be prepared, by and under the direction of the court, and shall be filed with the judgment-roll, and be deemed a part thereof, for the purposes of a review in the court of appeals.

The provisions of the last preceding [this] section shall apply to any judgment therein mentioned, that has been heretofore rendered, and upon which an appeal has been brought, and is now pending, or upon which an appeal shall hereafter be brought.