a. An appeal from a judgment entered after a second trial, brings up for review only the judgment appealed from. If the record transmitted to the court of appeals contains, in addition to the case and exceptions made upon the second trial, the case made upon the first trial, on a motion to set aside a nonsuit, the latter proceedings may be, and should be, stricken out on motion (Wilcox v. Hawley, 31 N. Y. 648). The court only reviews the questions of law, presented by the exceptions stated in the case (id.)

b. Power of the court on appeal.—After a notice of appeal is served, and an undertaking perfected, the court of appeals is so far possessed of the case as to be competent to make any necessary order; e. g., to dismiss the appeal, although no return has been filed (Adams v. Fox, 27 N. Y. 640).

c. The court of appeals will not, on an appeal against the plaintiffs in an action, review the judgment below, so far as it affects adverse defendants against whom no appeal was taken from the special to the general term (Cotes v. Smith, 31 How. 146).

d. This court cannot review those parts of a decree of a court below not appealed from (Robertson v. Bullions, 11 N. Y. 243; Kelsey v. Western, 2 N. Y. 500).

e. Where a referee reported that the defendant had received damage to the amount of "from $12 to $15," but which he did not allow to the defendant, although in the judgment of the court he ought to have done so, the court of appeals on appeal from the judgment for the plaintiff, entered on such report, cannot determine the amount of defendant's damage, but is bound to order a new trial (Moffet v. Sackett, 18 N. Y. 522).

f. A defense not insisted upon in the court below cannot be made available on appeal (Hazard v. Spears, 4 Keyes, 469; Forrest v. Forrest, 38 N. Y. 469).

g. An objection that the verdict was against evidence not presented at the circuit or general term, cannot be raised in the court of appeals (Buck v. Remsen, 34 N. Y. 383), nor can an objection that the judgment is erroneous in form (id.)

h. On an appeal from the superior court of Buffalo, where no question as to its jurisdiction was raised, jurisdiction was assumed to have existed (Bidwell v. Astor Mut. Ins. Co. 16 N. Y. 263).

i. Where the only exceptions taken at special term were to the refusal of the court to nonsuit the plaintiff, on appeal, the only question before the court is, whether there was sufficient evidence to send the case to the jury (Magee v. Osborn, 32 N. Y. 669).

j. The court of appeals has no power to review a judgment where the judge, on a trial without a jury, after hearing the evidence on both sides, orders judgment for defendant on the ground that the plaintiff has misconceived his remedy, and is not entitled to the relief claimed, even if his allegations were all true; but there is no finding of facts by the judge (Bridger v. Weeks, 30 N. Y. 328).

k. Where there has been a reference under subd. 3 of section 271, every question depending not on the facts found, but on error in the proceedings on the trial, or in the determination of the facts, must be raised by exception. There can be no review in the court of appeals of the correctness of the determination of the facts (Marshall v. Smith, 20 N. Y. 251).

7. Where there are no exceptions contained in the case as settled, nor any allusion to any as having been taken at any time, there is nothing for the court of appeals to review. Where the only exceptions taken, relate exclusively to the finding of the referee upon matters of fact, no exception being taken to the decision upon the law, they present no question which the court of appeals can review (Weed v. N. Y. & Harlem Railroad, 29 N. Y. 616; and see Enos v. Eigenbrodt, 32 N. Y. 444).

m. Where a judgment, on trial by the court, comes up for review without any finding of facts, nothing can be presumed against the correctness of the judge's decision (Viele v. Troy and Boston R. R. Co. 20 N. Y. 184). The

court never presume any thing against the judgment; but if compelled by the imperfection in the statements of facts to resort to presumptions, will adopt such only as will sustain the judgment (Carman v. Pultz, 21 N. Y. 547; see City Building Co. v. Fatty, 4 Trans. App. 311; Stratton v. Cornfield, 2 Keyes, 55).

a. The court of appeals cannot look beyond the findings of fact contained in the case, in order to draw any inference of fact bearing on the appeal (Stewart v. Smith, 14 Abb. 75).

b. The review in the court of appeals must be upon the same case as that upon which the cause was decided below, and therefore, except under peculiar circumstances, there cannot be a resettlement of the case for the purposes of the appeal to the court of appeals (see Catlin v. Cole, 10 Abb. 387).

c. The finding of a referee upon a question of fact cannot be reviewed (Henry v. Wilkes, 5 Trans. App. 205; and see Macy v. Wheeler, 30 N. Y. 231; Young v. Davis, id. 134; Sandford v. Eighth Ave. R. R. Co. 23 N. Y. 343; Hoyt v. Thompson, 19 N. Y 207; Oldfield v. Harlem R. R. Co. 14 N. Y. 310; Newton v. Bronson, 13 N. Y. 587; Barker v. White, 3 Keyes, 495; Reed v. B'd of Education, 33 How. 237; Marco v. Liverpool Ins. Co. 35 N. Y. 664; Thompson v. Kessel, 30 N. Y. 383; Macy v. Wheeler, id. 231). A finding of a material fact, wholly without evidence to sustain it, is an error of law which may be reviewed (Mason v. Lord, 40 N. Y. 477). Thus a finding of fact of an indorsement being an accommodation indorsement, based on possession of the notes by the maker, and his delivery of them for his own benefit, was held to be a conclusion of law reviewable in court of appeals (Fielden v. Lahens, 6 Abb. N. S. 341).

d. A judgment affirming a judgment of a referee on a question of fact cannot be reviewed (Wiltsie v. Eaddie, 4 Abb. N. S. 393). But where the judgment of the referee is reversed at general term, on a question of fact, the whole case is presented to the court of appeals for review, as well upon the facts as the law (Peterson v. Rawson, 34 N. Y. 370).

e. If the facts found support the judgment, the court do not look further (Cady v. Allen, 18 N. Y. 574; Colwell v. Foulkes, 36 How. 306; Bergen v. Wemple, 30 N. Y. 319). The court may refer to the evidence in the case, for the purpose of giving a construction to a finding of fact, which will support the judgment (Spencer v. Bullou, 18 N. Y. 327).

f. Errors in the finding of a jury cannot be corrected in the court of appeals (Godfrey v. Johnston, 1 Keyes, 556; Parker v. Jervis, 3 id. 271).

g. A judgment will not be reversed for a defect in the pleadings which did not mislead, or affect, substantial rights (Johnson v. Hathorn, 4 Keyes, 477), or which might have been rectified on the trial (Lounsberry v. Purdy, 18 N. Y. 515; McCormick v. Pickering, 4 N. Y. 276; Lake Ontario R. R. Co. v. Marvine, 18 N. Y. 585). If the judgment is substantially correct, subject to such modification as the court can make, the modification will be made, and the judgment affirmed (Casler v. Shipman, 35 N. Y. 533). Thus where the only error is excessive damages, the court may affirm the judgment on the condition that the plaintiff remit the excess (Sears v. Conover, 3 Keyes, 113). A judgment for the plaintiff on demurrer was modified on appeal (Farnham v. Mallory, 3 Keyes, 527).

h. Remittitur.—After a return has been filed, and an order made which finally disposes of the appeal, whether upon the merits or not, it is proper to remit the proceedings to the court below (4 How. 184). After a cause has been regularly remitted to the court below, the court of appeals has no jurisdiction to grant relief against any irregularity (Burcle v. Luce, 1 N. Y. 239). The only remedy is a new appeal (Newton v. Harris, 8 Barb. 306). Where too much costs are charged on the dismissal of an appeal, the remedy is by motion to the court below (Dresser v. Brooks, 4 How. 207).

i. A remittitur cannot be made on the dismissal of an appeal, under rule 2 of the court of appeals, for the reason that no return has been filed; for if no return be filed, there is nothing to remit (4 How. 211).

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).

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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