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to the general term,” was objected to, the court, Harris, J., said, “ Such a notice is I think, a sufficient compliance with the requirement of the code. It was not, I apprehend, ivreuded to require that the notice of appeal should be more specific iban was required upon appealing from a decree or order in chancery; and there it was never required that the grounds of the appeal should be stated in the notice. It is enough if the notice specify what part of the judgment it is intended to review upon the appeal. Wilson v. Allen, 3 Pr. R., 372.
a. The appeal is not made until the service of the notice on the clerk; and, therefore, the notice of appeal must be served as well on the clerk as on the respondent within the times respectively prescribed by sections 331, 332. Westcott v. Platt, 1 Code Rep., 100.
b. The deposit of a notice of appeal in the post-office on the last day for bringing the appeal, and when such notice is not received by the party to whom sent until after the time to appeal has expired, is in time; but a like serce on the clerk is not in time, and is irregular. But the court has power to, and will, in such a case, order that the notice be deemed sufficient, so as to give the party the benefit of his appeal. Criltenden v. Adams, 1 Code Rep. N. S., 21.
c. Notice of appeal should be served on the attorney of record in the court below, not on the party. 16.
d. The service of such notice being a jurisdictional question, the party can take advantage of it at any time, is he has not appeared so as to give jurisdiction in the case. 16.
e. Where such service was made upon the party only who had not appeared, so as to give the court jurisdiction, held, that the appeal was a nullity. Tripp v. De Bow, 3 Code Rep., 163; 5 Pr. R., J14.
f. “It is true, section 327 allows amendments in cases of appeal; but it provides, as a sine qua non, that the party shall have given, in good faith, notice of appeal. And where there is a failure to give, in gooil faith, norice of appeal, there can be no amendment allowed." The People v. Eldridge, 7 Pr. R., 108. And, therefore, where a party intending to appeal under sections 351 to 371, omitted to serve his notice of appeal within twenty days after the judgment, as required by section 353,- but he had given a verbal notice of appeal within the time prescribed, -it was held, that the verbal notice " canuot affect the question ;” and as to amending under section 327, it is said, “ There is nothing to amend, nor to amend by. If the notice had been served, and had been defective in some matter or form, or perhaps of substance, I could understand what is meant by amending. But here is no notice, and the party, under the head of amendments, asks to bring an appeal after the time limited by statute has expired. This no court has authority to do, in my judgment. We may just as well extend the time for bringing an action, beyond the period fixed by the statute of limitations, or order an execution to run beyond the time fixed for the lien of a judgment." Ib.
See the Rules of Court of Appeals, in Appendix; and notes to sections 332, 334, and 341.
§ 328. [276.] Existing suits. Clerk to transmit papers to appellate court.
Upon the appeal, allowed by the second and third chapters of this title, being perfected, the clerk with whom the notice of appeal is filed, shall, at the expense of the appellant, forthwith transmit to the ap pellate court a certified copy of the no tice of appeal and of the judgment-roll.
g. A question having arisen as to the order on the calendar of appeals from inforior courts, the supreme court, in general term at Albany, directed that such cases should have priority from the date of the filing the return of the court below, in aual. ogy to the practice of the court of appeals, and to the former practice on writs of error in the supreme court. The papers are transmitted to the appellate court by being filed with the clerk of the supreme court in the proper county; and then this court has jurisdiction of the case, and from that time the cause should have priority. 2 Code Rep., 41.
a. Where the certified copy of the notice of appeal and judgment roll omitted the word “copy," and the name of the clerk, and was objected to on that ground, the court permitted an amendment. Lansing v. Russell, 4 Pr. R. 213.
See Rules of Court of Appeals, Rule 2.
$ 329. [277.] Existing suits. Intermediate orders affecting the judgment may be reviewed on the appeal.
Upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment.
b. If in an inferior court an answer containing a legitimate defence has been stricken out, the order striking it out involves the merits, and may be reversed. Cowles v. Cowles, 9 Pr. R., 361.
c. An order denying a motion to stay the trial of a cause until the decision of another cause, is not an order involving the merits, and is not reviewable on an ap. peal from the final judgment. James v. Chalmers, 2 Selden, 209.
As to an order affecting the merits, see note to section 349.
$ 330. [278.] (Amended 1819.) Existing suits. Judgment on appeal.
Upon an appeal from a judgment or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. When the judgment is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment.
d. On an appeal, only such parts of the judgment as are appealed from can be reviewed. Kelsey v. Western, 2 Coms., 500.
e. “Although the language of the section is, may make restitution," I enter. tain no doubt that the true construction is, to require the appellate conrt to make such restitution in all proper cases. There is a class of cases where it would or might be improper to order restitution; such, for instance, as where the judgment appealed from is reversed and a new trial granted. In such case, the court has a discretion in rela. tion to granting costs, and as the judgment is not final, there is no restitution to be ordered. But where the judgment of the appellate court is the end of the action, and no new trial is ordered, I think it is imperative upon the court to order restitution of all the appellant has lost. Therefore, in a case on appeal to the supreme conrt, where the judgment of the justice and the county court are both reversed, complete restitution cannot be made to the appellant short of paying him his costs of defend. ing the action before the justice, and of prosecuting the appeal before the county, court," together with his costs in the supreme court. Esius v. Baldwin, 9 Pr. R., 80.
f. On the reversal of a judgment of a district court, the appellant is entitled to have inserted in his costs of appeal such costs as he would have been entitled to had
a proper judgment been entered in the court below. Jacks v. Darrin, 1 Abbott, 232. It was a right given him by statute of which be was deprived by the erroneous judgment below, and of which the court should make restitutiou by ordering it now to be paid.
a. When a judgment for the plaintiff in the marine or justice's court is reversed, in the New York common pleas on appeal, without any award of judgment final for the defendant upon the merits, such reversal is not conclusive of the rights of the parties, and in such case the costs incurred by the defendant in his defence in the court below, cannot be allowed him and included in the judgment of reversal in the appellant court. Whether such costs should be allowed to the appellant (on appeals from these courts) when the appellate court not only reverse the judgment but also order a judgment final for the appellant upon the merits ?- Ellert v. Kelly, 10 Pr. R., 392
b. The court of common pleas for the city and county of New York have upiformly held that the portion of section 330 which authorizes the appellate court to grant a new trial, kas no application to appeals from the marine and district courts of the city of New York. Ib.
c. An appellate court, in reviewing a judgment upon a case made at the trial, is not authorized to reverse the judgment and render a final judgment against the party who prevailed in the court below. It can only order the judgment reversed and a new trial. Astor v Lamoreuz, 4 Selden, 107.
d. A judgment cannot be affirmed as to a part of the amount recovered and reversed as to the residue, where a new trial is ordered as to the part which is reversed. Story v. New York and Harlem R. R. Co., 2 Selden, 86.
e. Where a judgment entered at special term is appealed to the general term, and is there affirmed, a new judgment should not be entered. Eno v. Crooke, 6 Pr. R., 460; De Agreda v. Mantel, 1 Abbott, 130. The simple judgment of affirmance with the award of costs (if any) should be attached to the original roll. Ib.
f. It is improper to enter up two judgments in the same court for the same demand.
g. On an appeal from the special to the general term, if the appeal be dismissed, the judgment should be, It is ordered and adjudged that the appeal be dismissed and judgment affirmed with costs, and that the respondent have execution for such costs when adjusted and inserted in the entry of the judgment. De Agreda v. Mantel, 1 Abbott, 133.
h. Upon appeal to the general term the judgment may be reversed as to one desendant who appeals without affecting the judgment as to another defendant who does not appeal in cases where a several judgment below would be proper, Geraud 1. Stagg, 10 Pr. R., 369 ; see Farrel v. Calkins, 10 Barb., 348, in note to section 347. p. 528, post.
i. Judginent on an appeal to the general term cannot be rendered as of a day subsequent to the death of a party appellaut or respondent, but it may be rendered as of a day prior to such decease, and on which the court was in session and could have heard the appeal. De Agreda v. Mantel, 1 Abbott, 130.
$ 331. [279.] Ecisting suits. Certain appeals to be within two years.
The appeal allowed by the second and third chapters of this title must be taken within two years after the judgment.
j. The code prescribes the time within which an appeal may be taken from the special to the general term, and it is not in the power of the court to extend that period, or to allow an appeal where the time has been suffered to expire. (Code, ss. 332, 405.) As the legislature has seen fit to deny to the courts the power to relieve a party from the consequences of an omission to appeal within the period allowed by law, it was obviously improper for the supreme court iu this case to attempt to effect
the same thing indirectly by offering a new dato to the judgment.” Humphrey v. Chamberlain, 1 Kernan, 274. Denio, J.
a. An appeal cannot be taken until after entry of the judgment appealed from. Bradley v. Van Zandt, 3 Code Rep., 217. McMahon v. Harrison, 5 Pr. R., 360. But it may be taken at any time on the same day that the judgment is entered, and in that case the court will not inquire wbich was the first, the entry of the judgment or the taking the appeal. Blydenburg v. Cotheal, ib., 216.
6. If the party in whose favor judgment is rendered omit to perfect his judgment, the other party may compel him to do so, in order that an appeal may be brought. B’k Geneva v. Hotchkiss, 1 Code Rep. N. S., 153; 5 Pr. R., 478 ; Lentilhon v. Mayor of New York, 1 Code Rep. N. S., 111.
c. 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 soreties 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 ($250) required to be inserted in the undertaking, to cover the costs of the appeal. Newton v. Harris, 1 Code Rep. N. S., 191.
d. The code precludes the court from enlarging the time to appeal. Renouil v. Harris, 2 Code Rep., 71; Enos v. Thomas, 1 Code Rep., N. S., 67; Lindsey v. Almy, ib., 139; Rowell v. McCormick, ib., 73; And see Tracer v. Silreriuil, ? Code Rep., 96.
e. A stay of proceedings on the judgment does not extend the time to appeal. Renouil v. Harris, supra.
f. The time to appeal commences to run from the making the final order or jodgment appealed from, and not from the time of docketing the judgment roll. Bank of Geneva v. Hotchkiss, 1 Code Rep. N. S., 153; 5 Pr. R., 478; Woolen Vanufac. turing Co. v. Townsend, 1 Code Rep. N. S., 415.
g. The order for final judgment in the supreme court was entered in May, 1849; but the judgment was not perfected (docketed) until December 4, 1849. Notice of appeal to the court of appeals was served December 3, 1851. The respondent mored to dismiss the appeal as not having been taken within two years after the judgment appealed from. The appellant read an affidavit that the respondent had never served the appellant with a copy of any order of the final determination or judgment of the supreme court. The court granted the motion. Wells v. Danforth, 7 Pr. R., 197.
$ 332. [280.] (Amended 1849.) Other appeals within thirty days.
The appeal allowed by the fourth chapter of this title, must be taken within thirty days after written notice of the judg. ment or order shall have been given to the party appealing.
See note to preceding section.
h. The time for appealing under this section does not begin to run until the judgment is entered, which does not mean entered on the minutes, at the special term, but entered in the judgment book and perfected. Bentley v. Jones, 3 Code Rep.; 37.
i. The judgment cannot be considered as entered within the meaning of this section until it is perfected. Ib.
j. The jud ginent cannot be entered until the costs are ascertained, for the costs are to be inserted in the entry of judgment (s. 311). And until the amount of dam. ages and costs are ascertained, the party cannot draw the undertaking required by section 335. Harris v. Bennett, 3 Code Rep., 23.
k. If the prevailing party neglect to complete his judgment, when the other party is desirous to appeal to obtain a speedy decision, the course of the latter is to notify the former to perfect his judgment for that purpose ; and if he do not perfect
it in a reasonable time, the court will, on motion, compel him to do so, with costs, unless some good cause for the delay be shown. Lentihon v. Mayor of New York, 1 Code Rep. N. S., 111; Bank of Geneva v. Hotchkiss, ib., 153.
Appeals to the Court of Appeals.
SECTION 333. In what cases. 334. On any appeal security must be given to pay costs and damages, not
exceeding $250, or deposit made, unless waived.
$ 333. [282.] Existing suits. In what cases.
An appeal may be taken to the court of appeals, in the cases mentioned in section eleven.
a. When the matter was decided before the 1st of July, 1848, the right to a review, the time within which the proceeding must be commenced, and the form of prosecuting it from beginning to end, all depend upon the old law. But when the matter is decided after the 1st of July, 1848, whether the suit was commenced before or after that day, the right to appeal, the time within which the appeal must be taken, and the mode of procedure, all depend upon the code. Mayor, fc. of New York, v. Schermerhorn, 1 Code Rep., 109; Spalding v. Kingsland, ib., 110; Selden v. Vermilya, ib.; Butler v. Miller, ib; Lake v. Gibson, 3 Pr. R., 420.
b. The court of appeals cannot review the determination of the supreme or superior court at a general term, denying a new trial after a verdict, except upon a bill of exceptions taken on the trial, or a special verdict presenting questions of law. An exception to its decision at a general term amounts to nothing. McCracken v. Chol. well, 4 Selden, 133.
c. Where certain facts were found specially by the jury, and the justice conducting the trial ordered judgment pro forma for the plaintiff, with liberty to the defendants to appeal to the general term on a special case, and with liberty to the court to enter such judgment as they may see fit, and to adjust the verdict to it, and the court at general term rendered a judgment against the plaintiff, it was held that the court of appeals could not review it. 16.
$ 334. [283.] On any appeal security must be given to pay costs and damages, not exceeding $250, or deposit made, unless waived.
To render an appeal effectual for any purpose, a written