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$ 342. [291.) (Amended 1849.) Existing suits. 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.

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

69.

$ 343. [292.] Existing suits. Undertaking must be filed.

The undertaking must be filed with the clerk with whom the judgment or order appealed from was entered.

b. The fact that an undertaking on appeal is on file, does not make it necessary that the court should give leave to commence an action upon it. As soon as a party has aright of action on an undertaking, he is at liberty to pursue it withont asking the court for leave. The undertaking is the property of the plaintiff * * but he has no right to take it from the files of the court wit leave, and he can maint action on it without that. N. Y. Central Ins. Co. v. Safford, 10 Pr. R., 347.

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CHAPTER III.

Appeal to the Supreme Court from an inferior Court.

SECTION 344. In what cases.

345. Security must be given as upon appeal to the court of appeals.
346. Appeal, where heard.
347. Judgment on appeal, where entered and docketed.

$ 344. [293.] (Amended 1819.) Existing suits. 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. But no appeal shall be allowed from a judgment of a county court in a case arising in a justice's court, unless the party desiring to appeal, shall, within thirty days after notice of the judgment, present to a judge of the supreme court the return of the justice, or a copy thereof, with the decision of the county court, and obtain from such judge a certificate that he has examined the case, and in his opinion an appeal to the supreme court should be allowed.

a. The provision respecting appeals in cases arising in justices' courts resembles very closely a provision in laws of 1836, cap. 526, p. 794; and under that statute it was held (22 Wend., 627), that if the certificate was not obtained within thirty days after notice of the judgment, the right of appeal was irrevocably lost. There is no express power given by the code to onlarge the time for giving the certificate.

b. The notice of the judgment must be in writing (Code, s. 408). It is said to have been decided by Mr. Justice Harris, in an unreported case, that even if the party were present when the judginent was entered, he will not be deemed to have notice within the meaning of this section until a written notice be served on him.

c. It seems the appeal would be a nullity if this certificate were given after the expiration of the thirty days, and that the defect would not be cured by the respondent moving to dismiss the appeal. Seymour v. Judd, 2 Coms. 464.

d. In respect to causes originating in a justice's court, the supreme court has merely an appellate jurisdiction. It can only review and correct the decisions of the county court actually made, after a hearing of both parties. It has no power to review a judgment rendered in the county court by default. Dorr v. Birge, 5 Pr. R, 323; 1 Code Rep. N. S., 74 ; Lynch v. McBeth, 7 Pr. R., 113.

e. No appeal can pe taken to the supreme court from the order of the county court reversing the judgment of a justice of the peace, where the county court has ordered a new trial, for the reason that the county court does not give any final judg. ment, and there is no provision for the entry of a judgment in such a case in the county court. Bennett v. Harkness, 2 Code Rep., 100. And see Supreme Court Rule 29.

f. Where the appeal is founded on some irregularity or error not contained in or apparent upon the proceedings before the justice, such error must appear by the appellant's affidavit. The appellant's affidavit and the respondent's counter affidavit are in such cases equivalent to an assignment of errors of fact. Lynch v. MeBeth, 7 Pr. R. 113. [This case was decided on the code of 1851.]

g. Where the return of the justice does not contain any legal evidence to support his judgment, the judgment should be reversed. Ib.

h. An appeal will not be entertained from 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 Pr. R., 120.

§ 345. [294.] Existing suits. 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.

i. On an appeal from an inferior court to the supreme court, the respondent should have information of the residences of the sureties. Semble that the undertaking must state their residences. Blood v. Wilder, 6 Pr. R., 446.

$ 346. [295.] Existing suits. Appeals, where heard.

Appeals 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.

l. 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. Aikin, 4 Pr. R., 439.

b. 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.

6. Appeals to the county court which are transferred to the supreme court in pursuance of section 31 of the act amending the act in relation to the judiciary, passed December 14, 1847, are not such appeals as are provided for by section 346 of the code, and may be heard and decided at a special term. Section 346 was intended to provide for an appeal from an inferior court to the supreme court. Sheldon v. Albro, 8 Pr. R., 305.

d. Where a judgment rendered for defendant in an action before a justice of the peace, was appealed to the county court, and the county judge made a certificate under section 31 of Laws of 1847, p. 643, which provides, that “whenever a cause or matter shall be pending in any county court in which the judge of such court shall have been attorney, solicitor, or counsellor, or shall be interested, or in which he would be excluded from being a juror by reason of consanguinity or affinity to either of the parties, or in the decision of which he shall have taken a part when sitt ng as judge in any other court, it shall be his duty to make a certificate stating such fact, and file the same in the office of the clerk of such county court; and thereupon jurisdiction of such cause shall be vested in the supreme court, in which such proceedings shall be had therein, according to the practice of such court. as might have been had in such county court if such cause or matter had remained therein,':-the appeal was brought to the general term of the supreme court; and per Taggart, J., " The only question I propose to examine in this case is, whether the cause should be heard at å general or special term of the supreme court. Section 346 of the code of 1851, provides that appeals in the supreme court shall be heard at a general term. This section is in chapter 3 of title 11 of the code. The general heading of the title is, of appeals in civil actions. The heading of the first chapter of this title is, appeals in general; chapter two, appeals to the court of appeals ; and chapter three, appeals to the supreme court from au inferior court. Section 346 is in its terms broad enough literally to include the appeal in this case ; but we may inquire whether the section is not limited by the heading of the chapter, and confined in its operation to appeals to the supreme court. The heading of the next chapter (ch. 4) is, appeals in the supreme court

from a single julge to the general term. The last clause of section 348 (the first section in chapter 4) provides that in the supreme court the appeal must be heard in the same manner as if it were an appeal from an inferior court. I think it pretty evident, from an examination of these provisions, that section 346 was only intended to apply to appeals from an inferior to ihe supreme court, and that such appeals are to be heard at a general term, that the word in aster the word appeals, at the beginning of the section, was inserted by mistake instead of the word to. Any other construction will render the last subdivision of section 348 unnecessary and nugatory. Section 346, and the last clause of section 348, literally contain precisely the same provision. They should therefore be construed so as to preserve the spirit of each, and give effect to both. The construction I have given seciiou 346, accomplishes this object, and makes the provision thereof consistent with the other provisions, and also with the general order of business in the court. The appeal in this case is not an appeal to the supreme court, but is an appeal to the county court It is in the supreme court by force of a statute existing prior to the code, and which was only intended to substitute the supreme court for the county court in certain cases. The special term is, both by the constitution and the statute, as clearly the supreme court as the general term. Hence, aside from the provisions of section 346, there could be no question but that the special term might entertain jurisdiction in a case like this. I am not aware of any reported decision of a case like the present, but I think such cases must have been frequently heard and decided at special term without raising the question. In the case of The Commissioners of Highways of Schroepel v. The Osuego and Syracuse Plank Road Co., 7 Pr. R., 94, Mr. Justice Hubbard heard and decided, at special term, an appeal from an order of a county court removing a toll gate. That appeal was brought uuder the act for the incorporation of plauk road and turnpike road companies, and had been referred, as provided by the act of 1851 amending the same, to referees, and was heard on the report of the referees. Mr. Justice Hubbard reversed the decision of the referees, and recommitted the case to them to hear de novo. I refused to hear a case precisely like the last-mentioned, at special term; and it was afterwards heard and decided at general term. In both of these cases, the appeal was from an inserior court to the supreme court, and should have been heard at general term, unless it is held that they are not appeals under the code, and therefore, not within the provisions of section 346. This case is pot like the case reported in 7 Pr. R., 94. It is an appeal to the county court under the code ; while that was an appeal to the supreme court, and not under the code.

* Without, however, deciding that appeals like the one in this case must be heard at special term, I am clear that it may be heard there; and for the convenience of the courts and suitors therein, as well as to comply with the spirit and design of the pruvisions of the code, they should be heard at special term. The court (Mar. vin, Mullett, and Taggart, JJ.) unanimously resolved that appeals to the county court, which are transferred in pursuance of the 31st section of the act amending the act in relation to the judiciary, passed December 14, 1847, shall hereafter be brought to argument, and heard and decided in the first instance, at a special term of lbe supreme court."

16. $ 347. [296.] (Amended 1849.) Existing suits. Judgment on appeal, where entered and docketed.

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. In an action of tort in a justices' court against several defendants, where the summons was served personally on only one of them, and upon the others by copy, and only the one personally served appeared before the justice, who rendered judgment against all the defendants, it was held on appeal, that the justice erred in proceeding to judgment against those not personally served. Farrell v. Calkins, 10 Barb. 348.

b. And the county court having affirmed the justice's judgment as to the defendant who was personally served with the summons, and dismissed the appeal as against the other defendants ; the supreme court reversed both judgments, with costs. Ib.

c. The rule is well settled in such cases, that an entire judgment against several defendants, whether in an action of tort, or upon contract, cannot be reversed as to one defendant and affirmed as to others. It seems that the code has not changed this rule. 16.

d. But in a case where a several judgment would be proper in the court below

there the judgment may be roversed as to one defendant without affecting the judgment as to another defendant. Geraud v. Stagg, 10 Pr. R. 369.

a. This section authorizes the entry of a new judgment on the appeal to the supreme court. Eno v. Crooke, 6 Pr. R. 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 Pr. R., 191.

c. Where the defendants entered judgment as of ponsuit, 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 circuits and special terms to same court in general

term. Security on appeal. 349. Orders by a single judge may be appealed from in certain cases. 350. Orders at chambers to be entered before appeal.

$ 348. [297.] (Amended 1849–1851-1852.) Appeals from circuit and special term to same court in general term. Security on appeal.

In the supreme court, the superior conrt of the city of New York, and the court of common pleas for the city

d. An appeal may be taken to the general term of the supreme court, or the superior court, or court of common pleas of the city of New York, from any judgmeni, order, or final determination made at a special term of either of said courts in any special proceeding therein ; such an appeal, however, shall not stay the proceedings unless the court or a judge thereof so order, which order may be upon such terms, 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. Laws of 1854, p. 592, s. 1.

e. Sections 327, 329, 330, and 332 of the Code of Procedure shall apply to appeals in special proceedings. Ib., s. 2.

f. Io special proceedings and on appeals therefrom, costs may be allowed in the discretion of the court, and when allowed shall be at the rate allowed for similar services in civil actions; and all appeals heretofore had or taken and undetermined in special proceedings, shall be as valid and effectual as though had or taken under the provisions of this act. Ib., s. 3.

g. This act authorizes the review by an appeal to the general term of the supreme court from an order at special term confirming the report of commissioners of appraisal for lands taken for a railroad, and this where the appeal was taken and undetermined at the time of the passage of the act. Rochester and Genessee Valley R. R. Co.v. Beckwith, 10 Pr. R., 168.

ht. The 349th section of the code does not apply to appeals in special proceedinge. Re Cooperstown Plank Road Co., 3 Code Rep., 148.

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