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They distinguish their decision from that in the superior court, the application to discontinue, in that case, not having been made until after the time to reply had es. pired, and when by not replying the plaintiff had admitted of record the counterclaim. Seaboard and Roanoke Co. v. Ward, 1 Abbott, 47; 18 Barb, 595.

a. Semble, The court will not permit a suit for the dissolution of a partnership and the settlement of the partnership debts, to be discontinued by act or consent of the parties. There must be a special a; plication to the court and notice to the partnership creditors. Rutter v. Tallis, 5 Sand., 612.

b. Where the pendency of a former action is pleaded, the plaintiff may afterwards discontinue, and such discontinuance defeats the answer. Averill v. Patterson, 10 Pr. R., 85.

c. One who sues en autre droit, in good faith, though without proper ground, may discontinue without costs. See Reeder v. Seeley, 4 Cow., 548; and Phænir v. Hill, 3 Johns, 249; cited and approved, St. John v. Denison, 9 Pr. R., 3.14.


Of appeals in civil actions. *

CHAPTER 1. Appeals in general.

II. Appeals to the court of appeals.
IIL Appeals to the supreme court from an inferior court.
IV. Appeals in the supreme court, and the superior court, and the court

of common pleas of the city of New York, froin a single judge to

the general term. V. Appeal to the court of common pleas for the city and county of New

York, or to a county court, from an inferior court.


Appeals in general.

SECTION 323. Writs of error abolished, and appoals substituted.

324. Orders made out of court, how vacated or modified.
325. Who may appeal.
326. Parties how designated on appeal.
327. Appeal how made.
328. Clerk to transmit papers to appellate court.
329. Intermediate orders affecting the judgment, may be reviewed on the

330. Judgment on appeal.
331. Certain appeals to be within two years.
332. Other appeals within thirty days.

$ 323. [271.] Existing suits. Writs of error abolished and appeals substituted.

Writs of error in civil actions, as they have heretofore

6. * In all suits commenced before the code, and determined afterwards, the parties must govern themselves on appeal as far as may be practicable, by the new machinery; but where that will not answer the purpose, the parties are at liberty to Tesort to the former practice, unless that course has been plainly forbidden by the legislatore. Per Brovson, Ch. J., in Farmer's Loan and Trust Co. v. Carroll, 5 Pr. R., 211.

b. In all suits commenced before the 1st of July, 1848, and then pending, a party intending to move to set aside a non-suit or verdict, must still make and serve a

existed, are abolished; and the only mode of reviewing a judgment, or order, in a civil action, shall be that prescribed by this title.

a. An appeal is a substitute for a writ of error, and brings under examination the same class of questions as were subjected to the consideration of the appellate court on that writ. Morgan v. Bruce, i Code Rep. N. S., 364.

b. An appeal from a judgment brings before the appellate court only the determination of the court below upon the facts and its interlocutory decisions upon the questions of law upon which the final determination depends. Ib.

c. The presumption is always in favor of the action of the court below; and he who objects must point out the error in the proceedings. Balfour v. Mitchell, 12 Sme. & M., 626.

d. On an appeal from a judgment of a court of First Instance, where the record contained none of the proceedings of the court below, except the pleadings and judg. ment, and these were sufficient, no portion of the evidence being returned; beld that the appellate court would presume, nothing appearing in any way to the contrary, that the proceedings were regular, and sufficient evidence was adduced at the trial to warrant the judginent. Gonzales v. Huntley, I California R., 32.

$ 324. [272.] Existing suits. Orders made out of court, how vacated or modified.

An order, made out of court, without notice to the adverse party, may be vacated or modified, without notice, by the judge who made it, or may be vacated or modified on notice, in the manner in which other motions are made.

e. This section is identical with section 272 of the code of 1848 ; and while that code was in force it was held not to apply to injunction orders which could only be vacated or modified pursuant to section 198 of the same code, identical with section 225 of this code. Mills v. Thursby, 1 Code Rep., 121.

f. Subsequently it was decided that this section applies as well to injunction orders as to other orders. The special provision made by section 225 was in addition to the powers conferred by section 324 and not intended as a substitute for them. Therefore it is competent for a judge to vacate and modify an injunction order, without notice, but it is not the better practice, and should never be done except when, from the 'urgency of the case, it becomes necessary to guard against serious less which sometimes might be occasioned by the delay incident to serving notice. Bruce v. Delaware and Hudson Canal Co., 8 Pr. R., 440.

case or bill of exceptions according to the old practice, and found his action thereon. · An appeal in such cases to the general term according to the provisions of the code,

cannot be taken. Thompson v. Blanchard, 4 Pr. R., 260. See, also, Scott v. Beeker, 3 Pr. R., 373; Doty v. Brown, ib., 375.

g. Where an appeal had been dismissed with costs, and the costs had not been paid, and the appellant entered another appeal, the respondent moved to stay the proceedings on the second appeal until the costs of the first were paid, the court granted the motion, And per Bronson, Ch. J., two successive appeals in the same case, like two actions for the same cause, tend to vexation. Dresser v. Brooks, 5 Pr. R., 75.

h. A voluntary dismissal or abandonment of an appeal, is no bar to a further appeal by the same party, within the time prescribed by the statute. Crafts v. Ives, Court of Appeals, October, 1852.

a. This section does not apply to an order made out of court upon notice ; such an order must be regarded as an order at special term. Follett v. Weed, 3 Pr. R., 360.

6. This section extends to an order to examine a defendant in proceedings supplementary to an execution. Lindsay v. Sherman, 1 Code Rep. N. S., 25.

C. A motion to vacate an order made by a justice of the supreme court, out of court, for a defendant 10 submit to examination, &c., pursuant to sections 292, 298, may be made to the justice who granted the order, or any other justice of the same court. Blake v. Locy, 6 Pr. R., 108.

$ 325. [273.] Ecisting suits. Who may appeal.

Any party aggrieved may appeal in the cases prescribed in this title.

d. The code changes the mode of reviewing judgments, but not the principles by which such review shall be governed, and it was and is a general rule that only the party who is aggrieved by the judgment can apply to reverse, and the party in whose favor the judgment is given cannot be aggrieved by it, and consequently cannot apply to reverse it. Fairbanks v. Corlies, 1 Abbott, 155.

e. The foriner practice under the revised statutes as to writs of error, does not apply in cases of appeal under the code. Under ss. 325 and 366 of the code, any one of several parties conceiving hinself aggrieved by the judgment may appeal, whether bis co.plaintiffs or co-defendants join in the appeal or not. Mattison v. Jones, 9 Pr. R., 152.

f. A writ of error (an appeal) is a statutory remedy, and must be strictly pursued ; and a party seeking the benefit of the writ must bring himself and his case within the statute. Overseers of Clayton v. Beedle, 1 Barb., 11.

g. A writ of error (an appeal) cannot be ught upon a judgment in a personal action by any person other than the party against whom the judgment was recovered, or, in case of his death, by his personal representatives. 16.

h There is no privity between overseers of the poor who have brought a suit in their official character, and their successors in office, which will enable the latter to bring a writ of error (an appeal) upon the judgment recovered in that suit. 16.

i. Nor can such successors be substituted as parties in a writ of error (an appeal] pending at the time of their election, or afterwards brought in the names of the previous overseers. Ib.

j. Can an appeal be brought by one of several plaintiffs or defendants ? Formerly when all the plaintiffs or defendants to a suit did not wish to prosecute an appeal or a writ of error, or would not unite in doing so, any one of them might take an appeal or sue out a writ of error in the names of all, and if the others resused to come in and join with him in the assigument of errors, there might be a judgment of severance as to them, after which he might proceed in his own name alone. 6 Bac. Abr., Sum. mons and Severance, E.; 1 Arch. Pr., 232; Kain v. Graydon, 6 Blackf., 138. And in the case of a judgment ata law against these defendants, a writ of error sued out by one of them in his own name only, was dismissed on the ground that the writ should bave been issued in the names of all the defendants. Williams v. Bank of U. S., 11 Wheat., 414; and in the case of a decree in chancery against six defendants, an appeal in the name of two of them only was dismissed on the same ground. Owings v. Kincannon, 7 Peters, 399. But where judgment was given against several defendants, and one or more of them died, the writ of error might be brought by the survivors. And in trespass against several, if one was acquitted and there was judgment against the others, those against whom judgment was rendered might bring a writ of error without joining the defendant who was acquitted, for he could not say the judgment was to his damage. 2 Wm. Saund. 101 e. note ; 2 Tidd,Pr., 1082

k. Where a party to an appeal dies after the return is filed in the court of appeals, that court having thereby obtained jurisdiction, has the power to allow the legal representatives of such deceased party to be substituted in his place. Hastingsv. McKinley, 8 Pr. R., 175. In that case, after the return was filed in the court of appeals, the respondent died, and his executrix applied to be substituted in his stead; it was objected that the motion for substitution should have been to the court below; but per Curiam, “This court having jurisdiction to review the judgment below, and having obtained possession of the cause, must in the nature of things possess all such powers as are necessary to render the jurisdiction effectual. Among other powers thus necessary, is that of determining what parties ought to be before the court, and, in case of any defect arising after jurisdiction is acquired, or remedying that defect. Section 121 of the code seems not to have been intended to apply in terms to this court; for it is difficult to see how in any case a supplemental complaint could be an appropriate method of bringing in new parties here. Section 469 of the code continues in force the practice of the courts, where that practice was not inconsistent with ihe provisions of the code. Under this provision, I think the former practice of the court for the correction of errors must govern, where neither the rules of the court nor the provisions of the code are inconsistent there with. Rogers v. Patterson, (4 Paige 413), shows that in that court, where an abatement occurred after that court became possessed of the cause, the representatives of the deceased party might apply by petition for an order that the appeal should stand revived in their names; and that inode of procedure is most convenient, and most in harmony with the practice pointed oui in the code for the revival of suits in the court of original jurisdiction. We might, perhaps, proceed to hear the cause, and render judgment as of a tine prior to the death of the respondent, leaving the revivor to iake place in the court below, after our judgment shall be remitted; but we are satisfied that the course before pointed out is most convenient, and will best insure the protection of the rights of all the parties in interest.”

$ 326. [274.] Ecisting suits. Parties, how designatel on appeal. .

The party appealing shall be known as the appellant, and the adverse party as the respondent. But the title of the action shall not be changed in consequence of the appeal.

a. This section is said to apply only to the names of the parties, and not to the name or style of the court, and therefore in all proceedings on appeal in the court of appeals, the papers must be entitled in that court, and not in the court from the decision of which the appeal is brought. Clickman v. Clickman, 1 Code Rep., 93.

$ 327. [275.] (Amended 1849.) Existing suits. Appeal, how made.

An appeal must be made by the service of a notice in writing on the adverse party, and on the clerk with whom the judgment or order appealed from is entered, stating the appeal from the same or some specified part thereof.* When a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit through mistake, to do any other act necessary to perfect the appeal or to stay proceedings, the conrt may permit an amendment on such terms as may be just.

b. This section corresponds to section 275 in the code of 1848. In the code of 1848 the sectiou stopped at the point where the asterisk is placed.

c. Upon this section, as it stood in the code of 1848, where a notice of appeal, which stated that the defendant appealed “from the judgment entered in this action

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