taking is filed, is in time, although more than ten days have elapsed since service of a copy of the undertaking and notice of appeal, on the respondent (Webster v. Stevens, 3 Abb. 227; 5 Duer, 690). Thus, where the notice of appeal and copy undertaking was served on August 18, but the undertaking was not filed until September 13, and on September 16 the respondent served notice of exception,-held that he was in time (id.)

a. Where sureties on appeal justified on notice to the respondent's attorneys, who refused to attend the justification, because the hour for which notice was given was gone by (the delay being excused),-held, on an affidavit of the respondent that the sureties were irresponsible, that he was entitled to an order of dismissal of the appeal, unless the appellant served a new notice of justification, and the sureties justified anew in pursuance of such notice, or unless new sureties should be substituted who should justify (Hees v. Snell, 8 How. 185).

b. The benefit of an exception, duly taken to sureties on an appeal, is waived by the failure of the respondent to attend the officer before whom the notice of justification is given, although the sureties also fail to attend. The party excepting is the actor in the proceeding, and no step is necessary to be taken except on his requisition (Ballard v. Ballard, 18 N. Y. 491).

c. When the sureties in an undertaking fail to justify the notice of appeal, and all proceedings on the appeal fall through, and the parties are in the same condition as though no appeal had been taken (Kelsey v. Campbell, 38 Barb. 238; 14 Abb. 368; Chamberlain v. Dempsey, 13 Abb. 421; 22 How. 356).

d. Under an order made on the rejection of proposed sureties, granting the appellant ten days' time to file a new undertaking with new sureties, and staying all proceedings on the part of the respondent during said ten days, the appellant must not only file a new undertaking, but procure the justification of his sureties within said ten days. The respondent need not accept to such new sureties. Such new undertaking does not operate as a stay until the sureties justify (Chamberlain v. Dempsey, 13 Abb. 421; 22 How. 356).

§ 342. (Am'd 1849.) Perishable property may be sold, notwithstanding appeal.

In the cases not provided for in sections 335, 336, 337, 338, and 339, the perfecting of an appeal, by giving the undertaking mentioned in section 334, shall stay proceedings in the court below upon the judgment appealed from, except that where it directs the sale of perishable property, the court below may order the property to be sold, and the proceeds thereof to be deposited or invested, to abide the judgment of the appellate court.

e. Where a surrogate's decree is appealed from to the supreme court, and the decision of the supreme court is appealed from to the court of appeals, the surrogate's court is the court below, within the meaning of this section (Anon. 3 Code Rep. 69).

See ante, p. 339, g.

f. On an appeal from a judgment awarding plaintiff a perpetual injunction against certain acts by the defendant, an undertaking pursuant to section 334 operates as a stay of all proceedings upon the judgment (How v. Searing, 6 Bosw. 684).

g. An application to punish the defendant for a violation of said injunction is a proceeding on the judgment, and is stayed by such an appeal (id.); but the injunction is not vacated (id.)

h. On appeal from a judgment directing the delivery of personal property, such as will depreciate by time and use, the court will not order a stay of pro

ceedings or an undertaking to obey the order of the court upon the appeal, but will require the respondent to be indemnified against loss by the depreciation of the property (Read v. Potter, 11 Abb. 413; see note to § 233, ante).

§ 343. (Am'd 1866.) Undertaking to be filed. Appeals from orders.

The undertaking must be filed with the clerk with whom the judgment or order appealed from was entered. The provisions of this chapter as to the security to be given upon appeals, and as to the stay of proceedings, shall apply to appeals taken under subdivision three of section eleven.

CHAPTER III.

Appeal to the Supreme Court from an inferior Court.

SECTION 344. Appeal, in what cases.

345. Security must be given as upon appeal to court of appeals. 346. Appeals, where heard.

347. Judgment on appeal, where entered and docketed.

$344. (Am'd 1849, 1858, 1860.) Appeal, in what cases.

An appeal may be taken to the supreme court, from the judgment rendered by a county court, or by the mayors' courts or the recorders' courts of cities.

An appeal may also be taken to the supreme court from any order affecting a substantial right, made by a county court, or a county judge, in any action or proceeding, and such appeal shall be heard on a copy of the papers on which the order appealed from was made.

a. Power on appeal.-Upon an appeal from an inferior court to the supreme court under this section, the supreme court possesses no other powers than formerly upon writ of error. Accordingly, upon an appeal from a mayor's court to the supreme court, the latter cannot reverse the judgment, because the jury have given excessive damages; such errors are to be corrected in the court below (Thurber v. Townsend, 22 N. Y. 517; and see Lynch v. McBeth, 7 How. 113; Dorr v. Birge, 5 How. 323; 8 Barb. 351). An appeal to the supreme court from a judgment of the county court does not authorize the supreme court to reverse the judgment and grant a new trial upon exceptions taken upon the trial in the county court. A new trial must be moved for in the county court before an appeal can be taken on a case or bill of exceptions in that court to the supreme court (Carter v. Werner, 27 How. 385; contra, see Monroe v. Monroe, id. 208; Dixon v. Buck, 42 Barb. 70; and see Whitney v. Wells, 28 How. 150; Boughton v. Mitchell, 19 Abb. 163; 29 How. 68; Simmons v. Sherman, 30 How. 4).

b. An order of a county court dismissing an appeal taken from a judgment of a justice of the peace in summary proceedings to recover the possession of

lands is appealable to the supreme court (Hammond v. Carpenter, 29 How. 43).

a. Brooklyn city court.-Appeal lies to the supreme court from orders made before judgment in actions in the city court of Brooklyn, when such orders involve the merits and will necessarily affect the judgment to be rendered (Moore v. Wood, 19 How. 405); and from an order denying a motion for a new trial (Suydam v. Grand Street R. R. Co. 17 Abb. 304).

b. On an appeal from the city court of Brooklyn, the supreme court may order a new trial (Von Latham v. Rowan, 17 Abb. 238).

c. New trial.-The granting a new trial in a suit before a justice of the peace, under section 366 of the code, is a matter of discretion, and where the county court has denied a new trial except upon terms, the supreme court cannot review the order (Wavel v. Wiles, 24 How. 635).

d. What can be reviewed. The supreme court can review only judgments actually made after hearing the parties in the county court (Lynch v. McBeth, 7 How. 113); and cannot review a judgment by default (Dorr v. Birdge, 8 Barb. 351; 5 How. 323; nor a judgment entered by stipulation, and to enable the party to appeal, before the disposal of all the issues on the record (Perkins v. Farnham, 10 How. 120).

e. This section authorizes an appeal from an order of a county judge in supplementary proceedings (Crounse v. Whipple, 34 How. 333), but doubtful whether an appeal can be taken to supreme court from an order of a county judge granting a new trial (Taylor v. Scoville, 54 Barb. 34).

§ 345. Security must be given, as upon appeal to court of appeals.

Security must be given upon such appeal, in the same manner, and to the same extent, as upon an appeal to the court of appeals.

f. Unless security be given as required by section 334, the appeal is ineffectual for any purpose (Jones v. Decker, 14 Abb. 391).

§ 346. Appeals, where heard.

Adpeals in the supreme court shall be heard at a general term, either in the district embracing the county where the judgment or order appealed from was entered, or in a county adjoining that county, except that where the judgment or order was entered in the city and county of New York, the appeal shall be heard in - the first district.

g. An appeal from a surrogate's court admitting, or refusing to admit, a will to probate should, in the first instance, be heard at general term (Watts v. Aiken, 4 How. 439),

h. On an appeal from an inferior court to the supreme court, the date of issue is the day of filing the judgment-roll in the appellate court (Anon. 2 Code Rep. 41).

See Laws 1870, ch. 408, s. 10, note to § 18, ante.

§ 347. (Am'd 1849.) Judgment on appeal.

Judgment upon the appeal shall be entered and docketed

with the clerk in whose office the judgment-roll is filed. When the appeal is heard in a county other than that where the judgment-roll is filed, or is not from a judgment of a county court, the judgment upon the appeal shall be certified to the clerk with whom the roll is filed, to be there entered and docketed.

a. This section authorizes the entry of a new judgment on the appeal to the supreme court (Eno v. Crooke, 6 How. 462).

b. In all cases of appeal from the circuit, the judgment on the appeal should be certified by the clerk with whom the roll is filed, to be there entered and docketed (Andrews v. Durant, 6 How. 191). Where the defendants entered judgment as of a nonsuit, and filed the roll in Ulster county, where the venue was laid, and on appeal to the general term at Albany, judgment was affirmed, and the defendant entered judgment, and filed another roll in Albany county, it was held that the latter judgment was irregular (ib.)

CHAPTER IV.

Appeals in the Supreme Court, and the Superior Court and Court of Common Pleas of the city of New York, from a single judge to the general term.

SECTION 348. Appeals from circuit and special term to same court in general term. Security on appeals. Action on undertaking.

349.

Appeals from orders at special term.

350.

Appeals from orders at chambers.

$348. (Am'd 1849, 1851, 1852, 1859, 1862.) Appeals from circuit and special term to same court in general term. Security on appeal. Action on undertaking.

In the supreme court, the superior court of the city of New York, and the court of common pleas for the city and county of New York, an appeal upon the law may be taken to the general term from a judgment entered upon the report of referees or the direction of a single judge of the same court, in all cases, and upon the fact when the trial is by the court or referees. Such an appeal, however, does not stay the proceedings, unless security be given as upon an appeal to the court of appeals, and such security be renewed as in cases required by section 335, on motion to the court at special term, or unless the court, or a judge thereof, so order, which order may be made upon such terias, as to security, or otherwise, as may be just, such security not to exceed the

amount required on an appeal to the court of appeals. In the supreme court the appeal must be heard in the same manner as if it were an appeal from an inferior court.

No action shall be commenced upon any undertaking given or to be given in pursuance of the provisions of this section, until ten days after the service of notice on the adverse party of the entry of the order or judgment affirming the judgment appealed from. And in case an appeal has been or shall be taken to the court of appeals from such order or judgment of affirmance, and security given according to law so as to stay the issuing of execution, no action shall be commenced or recovery had upon any undertaking given, or to be given, in pursuance of the provisions of this section, until after the final determination of such appeal.

a. Appeal from judgment on frivolous demurrer.—When a judgment is ordered for the plaintiff on a frivolous demurrer to the complaint, and such order is affirmed at general term, and then the plaintiff enters his judgment, such judgment may be appealed from to the general term, and it must be in order to have a review in the court of appeals (Hollister B’k v. Vail, 15 N. Y. 593; see ante, p. 365, g).

b. Stay of proceedings.—Security.--On an appeal to the general term, from a judgment entered on the report of a referee, or at special term, no security is required unless the appellant desires a stay of proceedings (Parsons v. Suydam, 4 Abb. 134; Niles v. Battershall, 26 How. 93; 18 Abb. 161; Genter v. Fields, 1 Keyes, 483; Halsey v. Flint, 15 Abb. 367; Kitching v. Diehl, 40 Barb. 433; Ten Brouck v. Hudson R. R. R. 7 How. 137). If he would have proceedings stayed upon the judgment, he must either give with his notice of appeal the security required on an appeal to the court of appeals, or obtain an order for a stay of proceedings from the court or a judge (Niles v. Battershall, 26 How. 93; Smith v. Heermance, 18 How. 261; Staring v. Jones, 13 How. 423; Armoux v. Homans, 32 How. 382); a stay may be ordered, although no undertaking has been filed (Mills v. Thursby, 11 How. 129; and see Wright v. Delafield, 11 How. 465; Staring v. Jones, 13 How. 423; Polhamus v. Moser, 7 Rob. 443). The court refused a stay of proceedings on appeal without security, where appellant had consented to accept respondent's bond to return the amount collected on the judgment, if the judgment should be reversed (Mills v. Thursby, 11 How. 124).

c. If an appellant has given security on appeal to the general term, and the sureties becoming insolvent, he is ordered to give new sureties, his failing to comply with such order is not ground for dismissing his appeal (Genter v. Fields, 1 Keyes, 483).

d. Amount of security to stay proceedings.—On an appeal under this section, the undertaking, in order to stay proceedings, in the absence of any order on the subject, must provide for the payment of all the costs, as well as the damages which may be awarded against the appellant on the appeal, not exceeding $500: if the undertaking omit to provide for the damages on the appeal, it is good so far as it goes, but does not stay the proceedings (Chemung Canal Bank v. Judson, 10 How. 133; Halsey v. Flint, 15 Abb. 367).

e. What judgments are appealable.—The judgment from which an appeal may be taken to the general term means the same thing as a judgment from which an appeal may be taken to the court of appeals--a final judgment (Lawrence v. Farmers' Loan and Trust Co. 15 How. 57; D'Ivernois v.