(Boyd v. Bigelow, 14 How. 511; but see 4 Abb. 98; 34 How. 163). An order is not final, so as to authorize an appeal, where there is an order of reference outstanding and undetermined (The People v. Haws, 21 How. 178). a. An appeal lies-From an order-allowing an attachment (B'k of Lansingburg v. McKie, 7 How. 364; Conklin v. Dutcher, 1 Code Rep. N. Š. 49); or, for the plaintiff to pay the defendant's costs, in an action where an offer has been made, and the plaintiff has recovered less than the sum mentioned in the offer (McGrath v. Van Wyck, 1 Code Rep. N. S. 157); or, for a reference after judgment by default, in an action to recover personal property, to ascertain the plaintiff's damages occasioned by the taking and detaining (Emerson v. Burney, 1 Code Rep. N. S. 189); or, directing a defendant to pay the amount admitted due by the answer (Merritt v. Thompson, 1 Abb 223); or, striking out portions of a pleading, if the portion stricken out may affect the rights of the party (Whitney v. Waterman, 4 How. 313; Otis v. Ross, 8 ib. 195); or, in supplemental proceedings (Hatch v. Weyburn, 8 How. 163); or, denying a motion to set aside proceedings on the ground that no summons had served (Van Rensselaer v. Chadwick, 7 How. 297); or, denying a motion to enter an exoneratur of bail (Col. Ins. Co. v. Force, 8 How. 358); or, directing a reference, in a case not authorized by law (Whitaker v. Desfosse, 7 Bosw. 678; Kenedy v. Shilton, 1 Hilton, 546); or, opening a judgment against the city of New York, on motion pursuant to the law of 1859 (Joyce v. Mayor of N. Y. 20 How. 439; 12 Abb. 309); or, denying motion to open judgment for default of an answer, defendant swearing to a defense on the merits (Quinn v. Case, 2 Hilton, 467); it is otherwise where the order is made as a mere favor (Foshay v. Drost, 4 Bosw. 664), or, allowing an amendment of the complaint, by the insertion of an additional and inconsistent cause of action (Sheldon v. Adams, 27 How. 179; 41 Barb. 54; Union Bank v Mott, 19 How. 267; 11 Abb. 42; see Salters v. Genin, 10 Abb. 478; 19 How. 233); or, denying a motion to set aside a report of referees (Matthews v. Jones, 1 E. D. Smith, 429); or, denying a motion to enter satisfaction of a judgment, so as to enforce the lien of an attorney (Ward v. Wordsworth, 1 E. D. Smith, 599); or, allowing an action to be entertained in the name of surviving plaintiffs, and admitting others in place of a deceased plaintiff (St. John v. Croel, 10 How. 253); or, denying a motion to set aside a judgment on the ground, amongst others, that the defendant, the moving party, had not been served with notice of trial (Tracy v. N. Y. Steam Faucet Co. 1 E. D. Smith, 357); or, denying a motion to set aside a judgment, on the ground that it was entered after a settlement and satisfaction of the cause of action (Marquat v. Mulvy, 9 How. 460); or, denying a motion for leave to examine an adverse party before the trial (Green v. Wood, 7 Abb. 277); or, granting alimony (Leslie v. Leslie, 6 Abb. N. S. 193; see, however, Griffin v. Griffin, 23 How. 189; Moncrief v. Moncrief, 10 Abb. 315); or, allowing amendments by adding a cause of action or defense (Sheldon v. Adams, 27 How. 179; 18 Abb. 405). And from an order denying a motion to make a pleading definite (Arrietta v. Morrissey, 1 Abb. N. S. 439); or, refusing to postpone a trial (Howard v. Freeman, 7 Rob. 25); or, refusing to set aside execution for costs against executors personally (Slocum v. Barry, 34 How. 320); or, opening an inquest (Leighton v. Wood, 17 Abb. 177; but see 7 Bosw. 678; 17 Abb. 319, note). b. A purchaser at a foreclosure sale may appeal to the general term from an order setting aside the sale (Mortimer v. Ñash, 17 Abb. 299, note). An order refusing an attachment against a witness disobeying a subpœna duces tecum, is appealable (so said in La Farge v. La Farge Fire Ins. Co. 14 How. 29). An order denying a motion to set aside for irregularity and as a favor, a judgment taken by default upon the answer as sham, was held to be appealable (Fassett v. Tallmadge, 15 Abb. 205). c. Waiver of appeal.—If a party to an action proceeds upon an order made in the cause, or accepts any benefit or advantage under it, he will be precluded from asking its review. Therefore, where an order was granted that the defendant be allowed to answer on payment of costs, and plaintiff accepted the costs and received the answer,—held that the acceptance of the costs, if they were received before the appeal, was a waiver of the right of appeal; and if received after, it was a waiver of the appeal (Radway v. Graham, 4 Abb. 468; and see Lewis v. Irving Ins. Co. 15 Abb. 140, n; Lupton v. Jewett, 1 Rob. 639). a. A moving party cannot appeal from an order denying his motion, where he has availed himself of a provision of the order giving him leave to renew the application (Noble v. Prescott, 4 E. D. Smith, 139). b. Where, after an appeal taken from an order denying a motion, an order is obtained for leave to renew such motion, the court will not hear the appeal while such order giving leave to renew remains in force (Peel v. Elliott, 16 How. 483). c. Order must be entered.-No appeal can be had from an order until it is entered and the moving papers filed with the clerk (Smith v. Dodd, 3 E. D. Smith, 215; McCunn v. Barnett, 2 id. 521; Marshall v. Francisco, 10 How. 147; Plato v. Kelly, 16 Abb. 188; Gallt v. Finch, 24 How. 193). That there is at the foot of the order a written direction of the judge to enter it, makes no difference (Whitaker v. Desfosse, 7 Bosw. 678). But where an appeal has been argued without any objection or suggestion that the order has not been entered, the court will not assume that it has not been entered, but will decide the appeal on its merits (id.) See note to § 350 post. d. Order on demurrer.-The provision allowing an appeal from an order when it sustains or overrules a demurrer, is applicable to all cases where leave to amend is given in connection with a decision on a demurrer, and also to decisions on demurrer to part of a pleading (Bauman v. N. Y. Central R. R. Co. 10 How. 208; Cook v. Pomeroy, ib. 221), and to every case of a decision on a demurrer where the appeal is taken before any judgment is actually entered (Nolton v. The Western R. R. Co. 10 How. 97; Nellis v. DeForest, 6 ib. 413; Lee v. Ainslie, 1 Hilton, 277; Reynolds v. Freeman, 4 Sand. 702; Phipps v. Van Cott, 4 Abb. 90; Ives v. Miller, 19 Barb. 197; Sutherland v. Tyler, 11 How. 251; Mattoon v. Baker, 24 How. 329). e. Merits.-An order "involves the merits" means all orders in the progress of a cause, except such as relate merely to matters resting in the discretion of the court, or to mere matters of practice or form of proceeding. An application for the necessary process to enforce the judgment of the court, involves the merits (Cruger v. Douglas, 2 Code Rep. 123; and see St. John v. West, 4 How. 331; Tallman v. Hinman, 10 id. 90: see Tracy v. New York Steam Faucet Co. 1 E. D. Smith, 357; Burhans v. Tibbitts, 7 How. 78; Seldon v. Delaware Canal Co. 29 N. Y. 634). f. Substantial right.—A party cannot be said to have a right to what a court has a discretion to grant or withhold. The legislature must have intended by a substantial right a fixed, determined right, independent of the discretion of the court, and of some value. Such a right must exist and be injuriously affected by an order, to bring a case within the 3rd sub. of sect. 349 (Tallman v. Hinman, 10 How. 90). An order admitting, or refusing to admit, an action to be continued in the name of a surviving plaintiff, or in the names of the representatives in interest of a deceased plaintiff, affects a substantial right (St. John v. Croel, id. 353). An order denying a party the exclusive right to a large sum of money, affects a substantial right, and is appealable (Artisans' B'k v. Treadwell, 34 Barb. 553). So of an order for an extra allowance (The People v. N. Y. Cent. R. R. Co. 29 N. Y. 418; Wilkinson v. Tiffany, 4 Abb. 98; Union B'k v. Mott, 13 Abb. 247); or for costs not allowed by law (Sluyter v. Smith, 2 Bosw. 673). g. Review of order granting or refusing a new trial.— The decision on a motion for a new trial, can be reviewed only on an appeal from the order denying the new trial (Morange v. Morris, 12 Abb. 164; 32 Barb. 650; Morrison v. N. Y. & Harlem R. R. Co. 32 Barb. 568). An appeal may be taken from an order denying a motion for a new trial, although judgment has been entered (Lane v. Bailey, 1 Abb. N. S. 407); where it was en tered before the appeal taken, but after the order appealed from was made (Pumpelly v. Village of Owego, 13 Abb. 387; 22 How. 385; see Soverhill v. Post, 22 How. 386); and an appeal lies to the supreme court from an order of the city court of Brooklyn, denying a motion for a new trial (Suydam v. Grand Street & Newtown R. R. 17 Abb. 305; Bennett v. City of Brooklyn, 19 How. 310). Where an appeal is taken from the judgment, and also from the order denying a new trial, the fact that the party had no right to move for a new trial does not prejudice his appeal from the judgment (Jackson v. Fassett, 12 Abb. 281). To present a question of fact upon the evidence, or to obtain a new trial on the ground of surprise, newly discovered evidence, or the like, a motion must be made at special term before judgment (Morrison v. N. Y. & Harlem R. R. Co. 32 Barb. 568; Morange v. Morris, 12 Abb. 164; 32 Barb. 650). a. An appeal to the court of appeals from an order denying a motion for a new trial, does not, per se, prevent the respondent entering judgment in the court below. Such judgment does not affect the appeal. The court below cannot stay the proceedings on the appeal from the order (Valton v. Nat. Loan Fund Ass. Soc. 19 How. 515; see McMahon v. Allen, 22 How. 193). b. Security on appeal.-On appeals from orders no security is required (Beach v. Southworth, 6 Barb. 173; Nicholson v. Dunham, 1 Code R. 119; Allen v. Johnson, 2 Sand. 629; Emerson v. Burney, 6 How. 32; Cook v. Pomeroy, 10 ib. 103); unless a stay of proceedings is desired (Bacon v. Reading, 1 Duer, 622); in which case the court may grant a stay (Genin v. Chadsey, 12 Abb. 69; Belmont v. Erie R. R. Co. 6 Abb. N. S. 442; Clark v. Brooks, 2 Daly, 159, and now see § 350, post). c. Where an undertaking is required as a condition of granting a stay of proceedings, pending an appeal from an order, such undertaking is an available security to the respondent if the order be affirmed (Winterhoff v. Siegert, 13 Abb. 182). d. An appeal from an order to the general term is not, per se, a stay of proceedings (Story v. Duffy, 8 How. 487; Forbes v. Oaks, 2 Abb. 120; Bacon v. Reading, 1 Duer, 622; Hicks v. Smith, 4 Abb. 285; Johnson v. Scriven, 3 Abb. 208; Valton v. Nat. Loan Fund Asso. 19 How. 515; Christy v. Libby, 3 Abb. N. S. 423). e. An appeal from an crder which grants a favor to the appellant, "provided he complies with the terms within a certain specified time," does not operate to enlarge the time for complying with such terms (Ferry v. B'k of Cent. N. Y. 9 Abb. 100). ƒ. Hearing.—Where the necessary papers upon the appeal are not submitted to the court, the appeal will be dismissed. So held where the papers did not show whether the appeal was taken from a judgment upon a demurrer, or from an order striking out a demurrer as frivolous (Sun Mut. Ins. Co. v. Dwight, 1 Hilton, 50). g. Formal and preliminary objections, not involving the merits of a motion, will not be considered upon appeal, unless it affirmatively appears that they were taken and overruled when the motion was brought on for hearing (Merritt v. Thompson, 1 Hilton, 551). h. Objection to motion papers which might have been remedied at special term by amendment, if the objection had been there made, cannot be urged on the argument of the appeal (Jackson v. Smith, 16 Abb. 201). i. On an appeal from an order on a motion where no affidavits were read in opposition to those in support of the motion, every intendment is in favor of the statements in those affidavits (Jackson v. Smith, 16 Abb. 201). j. On an appeal from an order proper to be granted only as a matter of favor, the court at general term in support of the order will presume, till the contrary appears, that it was so granted (Leighton v. Wood, 17 Abb. 177). k. Where on a motion to set aside proceedings for irregularity, the irregularity is not stated in the notice of motion, and the motion is denied, the court at general term, on an appeal from the order denying such motion, may presume the denial was for the defect in the notice (Lewes v. Graham, 16 Abb. 126; and see 14 Abb 449). a. On an appeal from an order, the objection that the order does not conform in its terms to the decision actually made cannot be considered (Ehle v. Haller, 6 Bosw. 661). b. The principle that the finding of fact of an inferior tribunal is not to be reversed by the appellate court, merely because it is against the weight of evidence, has no application to appeals to the general term from orders made in the progress of the action, upon affidavits (Brodsky v. Ihms, 16 Abb. 251; 25 How. 474). c. When an appeal is taken from a judgment, and there has been an appeal also from an order denying a motion for a new trial on the judge's minutes, the better course is to hear both appeals on the argument of the appeal from the judgment (Lane v. Bailey, 45 Barb. 119; 30 How. 76; 1 Abb. N. S. 407). Chamber order to be entered before ap § 350. (Am'd 1870.) peal. Stay of proceedings. The last section shall include an order made out of court, upon notice; but in such case, the order must be first entered with the clerk. And for the purpose of an appeal, any party affected by such order may require it to be entered with the clerk, and it shall be entered accordingly. And proceedings under an order appealed from may be stayed by an order of the court, or a judge thereof, on such terms as may be just. d. Orders granted by a justice at chambers, ex parte, under § 405, need not be entered with the clerk (Savage v. Relyea, 3 How. 276. But upon motions made upon notice under § 401, the affidavits, &c., used on the motion must be filed with the clerk of the county where the venue is laid (id.; and Nicholson v. Dunham, 1 Code Rep. 119); or if the place of trial has been changed, then with the clerk of the county to which the other papers in the cause are transferred. And the order or decision in such cases must be entered with the clerk of the county in which such papers are filed (id.) An order improperly entered may be struck out on motion (Bedell v. Powell, 3 Code Rep. 61; see ante, p. 558, c, and Kelly v. Thayer, 34 How. 163). CHAPTER V. Appeal to the Court of Common Pleas for the city and county of SECTION 351. Existing laws repealed, and this chapter substituted. 354. Notice of appeal to be served on justice, and costs of return 355. Security to stay execution. 356. Form of undertaking. 357. Execution, how stayed. 358. In case of death of justice, undertaking to be filed. 359. Filing in lieu of service of notice of appeal. 360. Return, when and how made and compelled. 361. How made if justice be out of office. 362. Further return. 363. Justice dead, insane, or absent. 364. Hearing upon return. Dismissing appeal, if not brought on. 365. Appeal to be heard on the original papers. 366. Judgment on appeal. New trial. 367. Judgment-roll. 368. Costs, how awarded. 369. Restitution. 370. Setting off costs and recovery. 371. The costs on appeal. 351. (Am'd 1849.) Existing laws repealed. All statutes now in force, providing for the review of judgments in civil cases, rendered by courts of justices of the peace, by the marine court of the city of New York, by the justices' courts in the city of New York, by the municipal court of the city of Brooklyn, and by the justices' courts of cities, and regulating the practice in relation to such review, are repealed; and, hereafter, the only mode of reviewing such judgment shall be an appeal, as prescribed by this chapter. a. Marine court.-Proceedings in the marine court cannot be reviewed in the New York common pleas by motion. After a transcript filed with the county clerk, a motion to set aside a judgment of the marine court must be made in that court, but, after entry of an order in that court, setting aside the judgment, a motion may be made in the common pleas to set aside the execution on such judgment (Mc Cunn v. Barnett, 2 E .D. Smith, 521). b. The New York common pleas has no power on motion to reverse or vacate a judgment of the marine or district court (Martin v. Mayor of N. Y. 20 How. 87). It may, however, where a transcript has been filed, perpetually enjoin the enforcement of such a judgment (id.) c. Laws of 1870, ch. 582, extend the jurisdiction of the marine court to claims not exceeding one thousand dollars, and provide that any court of |