Reynolds v. Freeman, 4 Sand. 702. Again it has been held that in no case can a decision on a demurrer be appealed from as an order, that this provision is inoperative, and that the only mode of reviewing a decision on a demurrer is to allow judgment to be entered, and then appeal from the judgment. Lewis v. Acker, 8 Pr. R., 414; Bruce v. Pinckney, ib., 397. These cases follow the decisions in Bentley v. Jones, 3 Code Rep. 37; 4 Pr. R. 335; King v. Stafford, 5 ib. 30, that the decision on a demurrer is a judgment and not an order.

Merits.

a. When may an order made at special term be said to "involve the merits?” b. 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.

c. "What is meant by the word 'merits,' as here used? If taken in its ordinary acceptation, it would mean the abstract justice of the case, without any regard to technical or arbitrary rules of law; but to give that signification to the word here, would in effect deny an appeal in many if not in most cases where a fixed rule, or a well-settled principle of law had been violated, and allow it in those cases where a judge had been called upon to exercise a sound discretion in settling the equities of the parties, in regard to some interlocutory matter; thus reversing all the previous theory and practice of our courts. A better legal definition I apprehend, would be, to consider it as meaning the combined questions of law and of fact presented by the pleadings in the case. This, however, although perhaps the best general definition that can be given, is obviously defective, and will hardly do in the present case, as will hereafter appear. Again, the precise meaning of the word 'involve,' in this sentence, presents a difficulty scarcely less embarrassing, If considered, as might be without doing violence to language, as synonymous with the word affect, then it is apparent that the provision is a very broad one, giving a right of appeal in many cases where it never existed before; as it could be easily shown that many orders upon a mere matter of practice, or such as rest entirely upon the discretion or favor of the court, would have an effect, more or less, upon the ultimate disposition or issues in the case; as for instance, an order opening a default regularly taken. On the other hand, if we give to the word involve' its more exact and literal signification, as synonymous with comprise or embrace, the provision becomes extremely restricted and confined, and would have, if we adhere to the definition of the word "merits" given above, scarcely any practical operation whatever, as in that view it would only reach those few cases in which the order embraced-that is, disposed of some part of the questions of law or of fact presented by the pleadings in the cause. To make the provision in question, therefore, accord at all with those notions which long experience and the practice of courts have heretofore settled as just and proper, it is obvious that some signification must be given to one or the other of the terms referred to, more or less variant from its most common and natural import. The word merits, as a legal term, having acquired no precise technical meaning, clearly admits of some latitude of interpretation. Let it be understood, therefore, in the sections of the statute under review, as meaning the strict legal rights of the parties, as contradistinguished from the mere questions of practice which every court regulates for itself, and from all matters which depend upon the discretion or favor of the court,' and we have not only a rational but an exact and well defined construction of the provision in question. It would then give an appeal from every order which involved, that is, passed upon and determined, any positive legal right of either party, and deny it in all other cases. This is the construction which will inevitably be generally given in practice to this provision; and by adopting it as the interpretation of the language, much fluctuation in the decisions of our courts in regard to appeals from this class of orders, may, it is believed, be avoided," Per Selden, J., in St. John v. West, 4 Pr. R., 331; cited and approved ia Tallman v. Hinman, 10 Pr. R,, 90.

d. In Tracy v. New York Steam Faucet Co., 1 Smith, 357, Woodruff, J., after approving of the definition of merits as found in St. John v. West (supra), says,—

"And generally I think that where a judgment has been obtained in violation of an express provision of the code, a motion to vacate it involves the merits in the sense in which it is used in the 349th section."

a. An order that a plaintiff recover costs on the ground that a claim of title to real property arose on the pleadings, or came in question on the trial, is an appealsble order. "It involved a part of the merits of the action. It was a matter of strict legal right as to the allowance of costs. The order did not relate to a matter of practice or procedure, or rest in the discretion of the court. (8 Barb., 329.) The court in the case cited has construed the expression when it involves the merits of the action, or some part thereof,' to mean that which relates to the strict legal rights of the parties as contradistinguished from mere questions of practice, which every court regulates for itself, and all matters which depend on the discretion or favor of the court." Burhans v. Tibbitts, 7 Pr. R., 78. Wright, J.

Substantial right.

6. 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 3d sub. of sect. 349. Tallman v. Hinman, 10 Pr. R., 90.

c. 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. Johns v. Croel, 10 Pr. R., 253.

Notice of Appeal.

d. The notice of appeal from an order must be served both on the clerk and on the adverse party within ten [now thirty] days after written notice of the order, or the appeal will be quashed. Wescott v. Platt, 1 Code Rep., 100.

e. The code positively precludes the court from enlarging the time for bringing an 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 Traver v. Silvernail, 2 Code Rep., 90.

Security on Appeal.

f. On appeals from orders no security is required. Beach v. Southworth, 1 Code Rep., 99; Nicholson v. Dunham, ib., 119; Allen v. Johnson, 2 Sand., 629; Emerson v. Burney, 6 Pr. R., 32; Cook v. Pomeroy, 10 ib., 103; unless a stay of proceedings is desired, Bacon v. Reading, 1 Duer, 622.

Stay of proceedings on appeal.

g. An appeal from the special to the general term does not operate, per se, as a stay of proceedings. Story v. Duffy, 8 Pr. R., 487. [It is not very clear from the report, whether the appeal in this case was from an order or a judgment. In the commencement of the opinion, " a judgment in this case" is spoken of; but at the conclusion it says, if the general term shall affirm "the order appealed from."]

h. In Emerson v. Burney, 6 Pr. R., 32, it was held by Welles, J., That an appeal from an order is, per se, a stay of proceedings; and the same judge also so decided in Cook v. Pomeroy, 10 Pr. R., 103; and in Trustees of Penn Yan v. Forbes, 8 ib., 286; and this decision in the latter case was affirmed on appeal by the general term.

i. In the superior court (Bacon v. Reading, 1 Duer, 622) it is held, that although no security is required upon an appeal from an order, yet such an appeal does not operate as a stay of proceedings; when a stay is desired, until the determination of the appeal, it must be obtained by a special order. Thus, where a motion for a new trial was denied at special term, and an appeal taken from the order to the general term, no security was given, and after the notice of appeal had been given, jadgment was entered on the verdict; and on motion to set aside the judgment as irregular,

Oakly, Ch. J., said, "I have consulted with my brethren, and we are all of opinion that, although no security is requisite to be given upon an appeal from an order, according to our decision in Allen v. Johnson (2 Sand., 629), it is a mistake to suppose that because the appeal without security is valid, it can operate per se as a stay of proceedings; nor is there a single word in our former decision to warrant such a conclusion. When a stay of proceedings until the determination of an appeal from an order is desired, it must be obtained by a special order; and, regularly, the application for that purpose ought to be made to the judge by whom the original motion was decided. It has never been supposed that an appeal from an order dissolving an injunction or discharging a defendant from arrest, proprio vigore revives the injunction or continues the imprisonment; but if such is not the effect of an appeal in these cases, I cannot say that in any other it suspends the execution of the order, or the performance of any act which is its legal consequence. If it cannot restore a dissolved injunction, it cannot revive a stay of proceedings that ceased when the order appealed was made. The observations of the judge in Emerson v. Burney, 6 Pr. R., 32, do not appear to be sustained by the authorities, and are plainly repugnant to the established practice in chancery in relation to appeals from interlocutory orders."

a. Where an appellant deposits a sum of money instead of giving an undertaking, and the general term decide against him, and he appeals, with the proper securities, to the court of appeals, nevertheless the money deposited must remain in court until the decision in the court of appeals. Parsons v. Travis, 2 Duer, 659.

b. An appeal under this section is a motion, and the costs are in the discretion of the court, and if not awarded on the decision of the appeal, and the amount stated in the order, none can be obtained. Savage v. Darrow, 2 Code Rep., 57; Nelles v. De Forest, 6 Pr. R., 413; and see section 315 and note.

Existing suits.

c. As to reviewing orders in suits pending when the code took effect, see 1 Code Rep., 61; Seeley v. Chittenden, 10 Barb., 303, and section 9 of supplement to code.

Copy papers for the court.

d. An appeal from an order pursuant to section 349 is a non-enumerated motion, and on such an appeal the court does not require the papers to be printed, but each member of the court should be furnished with a copy of the papers on which the appeal is founded, and such copies should, to facilitate reference, have the folios marked in the margin as the printed papers are required to be.

e. In the superior court all cases of appeal from decisions overruling or allowing demurrers are considered enumerated motions, and are to be placed on the calendar for argument; and the same papers are to be printed, served, and furnished, as are required in other calendar causes at the general term. Reynolds v. Truman, 4 Sand., 704.

New York Common Pleas.

f. Appeals from orders on points of practice in this court are regulated by Rules of Court, which will be found in the Appendix.

§ 350. [300.] Orders at chambers, to be entered before appeal.

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.

a. This section is identical with section 300 of the code of 1848. Under that section it was held, that orders granted by a justice at chambers, ex parte, under 405 [366], need not be entered with the clerk. Savage v. Releyea, 3 Pr. R., 276 ; 1 Code Rep., 42. But upon motions made upon notice under section 401 [360], the affidavits, &c., used on the motion must be filed with the clerk of the county where the venue is laid, ib; 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. Ib. And the order or decision in such cases must be entered with the clerk of the county in which such papers are filed. * Ib. It is the duty of the respective attorneys to file the papers used by them on such motion, and of the prevailing party to see that the order is entered conformably to the decision. Ib. An order improperly entered will be struck out, on motion. Bedell v. Powell, 3 Code Rep., 61.

b. An order made out of court adjudging a party in contempt, in not paying over money, &c., must be entered before it can be appealed. Marshall v. Francisco, 10 Pr. R. 147.

c. The usual practice formerly, was to apply to the judge who granted the order to vacate it, and, on his refusal, to appeal to the court. 1 Burr. Pr., 350. See section 324.

CHAPTER 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.

SECTION 351. Existing laws repealed, and this chapter substituted.

352. By what courts judgments to be reviewed.

353. Appeal, when to be taken.

354. Copy affidavit and notice of appeal to be served, and costs paid.

355. Security to stay execution.

356. Form of undertaking.

257. 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 may be ordered.

363. Justice dead, insane, or absent from State.

364. Hearing upon return. Dismissing appeal if not brought on.

365. To be heard on original papers.

367. Judgment, how given.

367. Judgment roll.

368. Costs, how awarded.

369. Ordering restitution.

370. Setting off costs and recovery.

371. The costs on appeal.

§ 351. [301.] (Amended 1849.) Existing suits. Existing laws repealed, and this chapter substituted.

All statutes, now in force, providing for the review of

*The provisions of this chapter do not repeal section 31 of the judiciary act of 1847. Laws of 1847, p. 638. And where an appeal is, pursuant to this section,

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 of 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 judgments shall be an appeal, as prescribed by this chapter.

a. The appeal given by this chapter is a mere substitute for the certiorari to bring up the judgment for review. Whitney v. Bayard, 2 Sand. 634. And the only mode of reviewing a judgment rendered in a justice's court is that prescribed by the code; and if the provisions of the code are not complied with, the appellate court has no jurisdiction. Tullock v. Bradshaw, 1 Code Rep., 53; Thompson v. Hopper, ib., 103; See note to section 354.

b. There is no minimum prescribed under which a judgment before a justice cannot be appealed; and the court cannot refuse to hear an appeal on account of the smallness of the amount in controversy. (Harris v. Hughes, 16 Mo. R. 597); and the New York common pleas entertained an appeal from a judgment in an action to recover 5 cents,-the respondent not objecting, and the action having been brought to test a right; and see Teall v Felton, Coms. 537, in which the value of the property in question was estimated by the plaintiff at 6 cents.

§ 352. [302.] (Amended 1849.) Existing suits. By what courts judgments to be reviewed.

When the judgment shall have been rendered by the marine court of the city of New York, or by a justice's court in that city, the appeal shall be to the court of common pleas for the city and county of New York; and when rendered by any of the other courts enumerated in the last section, to the county court of the county where the judgment was rendered.

c. By the law regulating the marine court (Laws of 1853, p. 1166) provision is made for an appeal from a single judge to a general term of that court; and we understand the court of common pleas to have held that a party has his option, either to appeal to the general term of the marine court or to the common pleas; but he cannot do both. From a decision at the general term of the marine court, neither party can appeal.

§ 353. [303.] (Amended 1851-1852.) Existing suits. Appeal when to be taken.

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

made to the supreme court, the proceedings throughout are to be the same as if the appeal had remained in the county court. Taylor v. Seeley, 3 Code Rep., 84. And see note to section 371.