record in the city of New York, may transfer any action of libel, assault, battery or false imprisonment, pending therein, to said marine court for trial. The number of justices of said court is increased to six, the said justices are prohibited from receiving any fees to their own use, or from practising in any court, or acting as referee, and their jurisdiction in summary proceedings to dispossess tenants is taken away.

a. District courts.-In any action commenced in a district court of the city of New York, where the claim or demand exceeds $100, upon the application of the defendant, the justice may make an order removing the same at any time after issue joined and before the trial, into the New York common pleas, upon the defendant executing to the plaintiff an undertaking with one or more sufficient sureties, to be approved by the justice in whose court the action is commenced, to pay to the plaintiff the amount of any judgment that may be awarded against the defendant by the said court of common pleas (Laws 1857, ch. 344); after a defendant has presented an undertaking to remove under the above-mentioned statute, the justice has no power to allow the plaintiff to reduce his claim below $100, so as to prevent a removal (Hogan v. Devlin, 2 Daly, 184).

b. City of Buffalo.-In cases arising in justices' courts in the city of Buffalo, an appeal lies from the county court to the superior court of that city only, and the decision of the latter court is final (Burgart v. Stock, 12 How. 559).

§ 352. (Am'd 1857, 1862, 1863, 1864, 1865.) Review of judgments. New trial.

When a judgment shall have been rendered by the general term of the marine court of the city of New York, or by a justice of a justices' court of that city, the appeal shall be to the court of common pleas for the city and county of New York.

The appeal from the general term of the marine court, prescribed herein, shall be from an actual determination at such general term only, and shall be taken within twenty days after judg ment by such general term. In the city of Buffalo, the appeals from the courts of justices of said city shall be to the superior court of said city. When rendered by any of the other courts enumerated in section three hundred and fifty-one, the appeal shall be to the county court of the county where the judgment was rendered. On such appeal, when the amount of the claim or claims for which judgment was demanded by either party in his pleadings in the court below shall exceed fifty dollars, or when, in an action to recover the possession of personal property, the value of the property as assessed and the damages recovered shall exceed fifty dollars exclusive of costs, a new trial shall be had in the county court in the following appellate cases;

1. When the judgment was rendered upon an issue of law, joined between the parties.

2. When it was rendered upon an issue of fact joined between the parties, whether the defendant was present at the trial or not.

And when the appeal is to the superior court of Buffalo, in the cases in which by the terms of this section, a new trial may be had, such new trial shall be had in the said superior court.

Provided, however, that the appellant may, in cases where the amount for which judgment is demanded by either party in his pleadings exceeds fifty dollars, or where, in an action to recover the possession of personal property, the value of the property as assessed and the damages recovered shall exceed fifty dollars, exclusive of costs, state in the notice of appeal that such appeal is taken upon questions of law only, in which case a new trial shall not be had in the appellate court, but the appeal shall be heard and determined in the same manner as if such amount, or said value and damages, were fifty dollars or under. Provided, however, that in the city and county of New York appeals from the marine and district courts shall be taken and heard, and returns made in the same manner as heretofore.

a. New trial.-The new trial is a matter of right, of which the appellant cannot be deprived, on the ground of any particularity in the statement in his notice of appeal of the ground of appeal (Fowler v. Westervelt, 17 Abb. 59). Where there is an application for a new trial, the county court must hear and decide upon all the questions raised by the appellant, as well those upon which the judgment is alleged to be erroneous, as those on which the appellant seeks a new trial (Cook v. Swift, 10 Abb. 212).

b. The provision for retrial of cases tried in justices' courts does not apply to the city of New York (McIlhenny v. Wasson, 1 Daly, 285).

c. It is the amount claimed in the pleadings, and not the amount of the recovery, which gives the right to a retrial (Ovenshire v. Adee, 27 How. 368). Appeal by infants, see ante, p. 101, e.

§ 353. (Am'd 1851, 1852.) Appeal.

The appellant shall, within twenty days after judgment, serve a notice of appeal, stating the grounds upon which the appeal is founded. If the judgment is rendered upon process not personally served, and the defendant did not appear, he shall have twenty days, after personal notice of the judgment, to serve the notice of appeal provided for in this and the next section.

d. The notice of the judgment in cases where the process is not personally served, must be in writing, and must proceed from the judgment creditor (Pearson v. Lovejoy, 53 Barb 407). The time to appeal, where the process was personally served, is computed from the date of the actual entry of the judgment, and not from the date of the decision upon which the judgment is entered (Fachs v. Pohlman, 2 Daly, 210). Judgment entered 14th of November, notice of appeal served 5th of December,-held too late (Young v. Whitcomb, 46 Barb. 615).

e. A general appearance by the respondent in the appellate court and noticing the appeal for argument, amount to a waiver of the right to have the ap

peal dismissed on the ground that motion of appeal was not served in time (Pearson v. Lovejoy, 53 Barb. 407); and giving an admission of due service of a notice of appeal is a waiver of the objection that it was not served in time (Struver v. Ocean Ins. Co. 9 Abb. 23).

See note to § 354.

§ 354. (Am'd 1849, 1851, 1852, 1857, 1858.) Notice of appeal to be served and costs paid. Appeals in New York city. Security. The notice of appeal must, within the same time, be served on the justice personally, if living and within the county, or on his clerk, if there be one, and on the respondent personally, or by leaving it at his residence, with some person of suitable age and discretion; or in case the respondent is not a resident of such county, or cannot, after due diligence, be found therein, in the same manner on the attorney or agent, if any, who is a resident of such county, who appeared for the respondent on the trial; and if neither the respondent nor such agent or attorney can be found in the county, the notice may be served on the respondent by leaving it with the clerk of the appellate court, and the appellant must, at the time of the service of the notice of appeal on the justice, or on his clerk, as herein provided (except in cases of appeals from the district courts in the city of New York, and the general term of the marine court of the city of New York), pay to such justice or clerk the costs of the action, included in the judgment, together with two dollars, costs of the return, which shall be included in the judgment for costs on reversal. In all cases of appeal from the general term of the marine court of the city of New York, and from the district courts of the city of New York, to the court of common pleas for the city and county of New York, the appellant shall, at the time of the service of the notice of appeal, pay to the clerk of the marine court, or to the justice or clerk of the district court, two dollars, as costs of the return to such court of common pleas, which costs, so paid, shall be included in the judgment for costs, in case the judgment of the court below shall be reversed; and the appellant shall also execute, on the appeal, a written uudertaking on his part, with one or more sufficient sureties, to the effect that the appellant will pay all costs, disbursements, and extra costs, awarded against him in the court below, if such judgment shall be affirmed by the appellate court, on such appeal, together with all costs and damages which may be awarded against him thereon; such sureties to justify, in double the amount specified in the undertaking; such

undertaking, and the sufficiency of the sureties, to be approved by the justice of the court below, or one of the judges of the court of common pleas; or, the appellant may deposit with the clerk of the court of common pleas the costs, disbursements, and extra costs, included in the judgment in the court below, and the sum of fifteen dollars to meet any costs that may be awarded against him in such appeal; and such appeal from the general term of the marine court and the district court shall be ineffectual, unless, within the time specified for bringing the appeal, the appellant execute such undertaking or make such deposit; the undertaking, when executed and approved, to be filed with the clerk of the court of common pleas; the amount so deposited shall be repaid by said clerk to the appellant, if he succeed on the appeal; and, in case the judgment be affirmed, the said clerk shall, after execution is issued, pay over the amount so deposited to the respondent, which shall be credited on the execution, issued on the judgment of affirmance, to the extent thereof, and the balance, if any, on the execution issued on the judgment appealed from.

a. Appeal from judgments in the marine and district courts in the city of New York, in actions against the mayor, &c., of said city.—On appeals by the mayor, &c., of New York, from judgments in the marine and district courts of said city against said mayor, &c., the service of the notice of appeal, without more and without any security, stays the proceedings on the judgment; and the said mayor, &c., is not required, in order to appeal, either to pay the costs of judgment or the fee for the return (Laws 1858, ch. 334).

6. Municipal Corporations.-Appeals by, see note to § 323, ante. e. The People.-Appeals by, see note to § 323, ante.

d. Who may appeal.-Both parties may appeal from one and the same judgment (Glassner v. Wheaton, 2 E. D. Smith, 352; Robbins v. Codman, 4 E. D. Smith, 316). A party may appeal from a judgment in his favor (Bissell v. Marshall, 6 Johns. 100; Slaman v. Buckley, 29 Barb. 290).

e. What judgments are appealable.—The remedy by appeal, applies as well to jurisdictional defects as to irregularities (Pitch v. Devlin, 15 Barb. 47). There can be no appeal to the New York common pleas, from a judgment of a single judge of the marine court (The People v. Marine Court, 3 Abb. 57; 22 Barb. 502; The People v. Marine Court, 3 Abb. 5; The People v. Marine Court, 2 Abb. 126). Nor from a judgment at the general term of the marine court, reversing a judgment of a single justice without ordering a new trial, or a final judgment, or otherwise determining the rights of the parties (Hone v. Julien, 9 Abb. 193; Howe v. Julien, 2 Hilton, 453). An order of the general term of the marine court, dismissing an appeal thereto for want of prosecution, is not appealable to the common pleas (Harper v. Hall, 1 Daly, 498). An order at general term of the marine court reversing a judgment and ordering a new trial, is appealable to the common pleas (Williams v. Tradesman's Fire Ins. Co. 1 Daly, 437). There can be no appeal to the county court from the verdict of a jury, given upon the laying out a private road (The People v. Robinson, 17 How. 534; 29 Barb. 77). Where a justice dismisses an action before him without awarded costs against plaintiff, it is not a case in which an appeal can be brought; there is no judgment capa

ble of being affirmed or reversed (Haulenbeck v. Gillies, 7 Abb. 421; 2 Hilton, 239; see, however, Gregory v. Trainor, 4 E. D. Smith, 58, where such an appeal was allowed). A judgment in a proceeding to foreclose a mechanic's lien is appealable (The People v. Rensselaer Co. Judge, 13 How. 398). An order of a county court, dismissing an appeal from a justice's judgment as too late, is a judgment, and is appealable (Pearson v. Lovejoy, 53 Barb. 407).

a. Dismissing appeal.—The appellate court, may, at special term, dismiss an appeal for irregularity, but every other question as to the appeal must be decided at general term (Williams v. Tradesman's Fire Ins. Co. 1 Daly, 322; and see Irwin v. Muir, 13 How. 409; 4 Abb. 133; Griswold v. Van Deusen, 2 E. D. Smith, 178).

b. Notice of appeal.—The notice of appeal must be in writing-a verbal notice is not sufficient (The People v. Eldridge, 7 How. 108). It should point out clearly the error complained of (Gray v. Hannah, 1 Abb. N. S. 43; 30 How. 155; Saunders v. Keough, 27 How. 477; and see § 371), whether in the process, the pleading, the proceedings at the trial, or in the giving of judgment, so that the adverse party, as well as the justice, may be fairly apprised of the ground on which a reversal of the judgment is sought (Lee v. Schmidt, 6 Abb. 183; Kelty v. Jenkins, 1 Hilton, 73; Irwin v. Muir, 13 How. 409; 4 Abb. 133; Williams v. Cunningham, 2 Sand. 632; Thompson v. Hooper, 1 Code R. 103). This is necessary to enable the justice to make a proper return (Webster v. Hopkins, 11 How. 140), and to enable the respondent to prepare for argument, or procure an amended return, if the original return is defective as to any ground of appeal (Morton v. Clark, 11 How. 498). Where the grounds stated were, "that the judgment is excessive and should not have exceeded $10 in any event" (Hotchkiss v. Banks, 36 How. 61), or "that material testimony offered on the trial was excluded;" that " material testimony was admitted which ought to have been excluded;" that "the evidence was insufficient on the question of damages; and that the judgment was against the law of the case,"-held too vague, and presented no points for review (Deuchars v. Wheaton, 16 How. 471). A statement that "the judgment is clearly against the law and the evidence of the case," is not sufficient (Derby v. Hannin, 2 Abb. 150; 15 How. 32). And a general statement "that the judgment is unsustained by, and contrary to law and evidence," is insufficient (Kelty v. Jenkins, 1 Hilton, 73). The notice must itself specify the grounds of objection to the judgment. A reference to the proceedings on the trial, as the place where the grounds of appeal will be found, is not sufficient (Mayor of New York v. Green, 1 Hilton, 393).

c. Effect of notice not stating the grounds of appeal.—A notice of appeal not stating any grounds of appeal would probably be a nullity (Christman v. Paul, 16 How. 17; Bush v. Dennison, 14 How. 307). Where the errors are not distinctly pointed out in the notice, or where the notice states generally, as a ground of appeal, that the judgment is against law and evidence, specific objections will not be heard on the argument, but the judgment will be summarily affirmed (Lee v. Schmidt, 1 Hilton, 537; Davis v. Erie R. R. Co. 1 Hilton, 543). For only the defects set out in the notice can be considered on the appeal (Lee v. Schmidt, 6 Abb. 183; Duffy v. Thompson, 4 E. D. Smith, 178; Bush v. Dennison, 14 How. 307; Damb v. Hoffman, 3 E. D. Smith, 361; Derby v. Hannin, 5 Abb. 150; Stern v. Drinker, 2 E. D. Smith, 402; Heim v. Wolf, 1 id. 72; Moore v. Somerindyke, 1 Hilton, 199). A statement in the notice that the judgment is against the weight of evidence, is not sufficient to justify a review of the judgment as being contrary to evidence, or against evidence, each being a distinct ground of error, and, if relied on, must be stated (Lee v. Schmidt, 1 Hilton, 537). But as upon an appeal to the county court, where the amount litigated exceeds fifty dollars, the appellant is entitled to a new trial as a matter of right; there is no reason [except § 371 of the code] for requiring particularity in the statement of the grounds of appeal in the notice of appeal; hence, in such a case, a notice that