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ment for money, se

stay execu

ment be to

ted.

In case of deficiency on sale of mortgaged premises a bond executed in pursuance of this section is sufficient to bring up the appeal. The Fireman's Ins. Co. agt. Bay and others, 3 How. 424.

$ 335. [Sec. 284.] If the appeal be from a judgment di- On judg: recting the payment of money, it shall not stay the execu

curity to tion of the judgment, unless a written undertaking be tivn. executed on the part of the appellant, by at least two sureties, to the effect, that if the judgment appealed from, or any part thereof, be affirmed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant, upon the appeal.

$ 336. [Sec. 285.) If the judgment appealed from, direct If judga the assignment or delivery of documents, or personal pro- documents

, perty, the execution of the judgment shall not be stayed be deposiby appeal unless the things required to be assigned or delivered, be brought into court, or placed in the custody of such officer or receiver as the court shall appoint, or unless an undertaking be entered into, on the part of the appellant, by at least two sureties, and in such amount as the court or a judge thereof, or county judge shall direct, to the effect that the appellant will obey the order of the appellate court, upon the appeal.

§ 337. [Sec. 286.) If the judgment appealed from, direct If to exethe execution of a conveyance or other instrument, the wees nieit execution of the judgment shall not be stayed by the ap- and deposipeal, until the instrument shall have been executed and deposited with the clerk with whom the judgment is entered, to abide the judgment of the appellate court.

§ 338. [Sec. 287.] If the judgment appealed from, direct Security, the sale or delivery of possession of real property, the exe-judgment is cution of the same shall not be stayed, unless a written un- for a sule of dertaking be executed on the part of the appellant, with premises. two sureties, to the effect that during the possession of such

Amended 1849,

must be executed

ted.

where

or

a

mortgaged

Stay of

proceed

property by the appellant, he will not commit, or suffer to be committed, any waste thereon, and that if the judgment be affirmed, he will pay the value of the use and occupation of the property, from the time of the appeal until the delivery of possession thereof, pursuant to the judgment, not exceeding a sum to be fixed by a judge of the court by which judgment was rendered, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency.

$ 339. [Sec. 288.] Whenever an appeal is perfected as proines, upon vided by sections three hundred and thirty-five, three hundred and

urity given.

thirty-six, three hundred and thirty-seven and three hundred and Amended. thirty-eight, it stays all further proceedings in the court below,

upon the judgment appealed from or upon the matter embraced therein ; but the court below may proceed upon any other matter included in the action, and not affected by the judgment, appealed from. And the court below may, in its discretion, dispense with or limit the security required by sections three hundred and thirty-five, three hundred and thirty-six and three hundred and thirty-eight, when the appellant is an executor, administrator, trustee or other person acting in another's right; and may also limit such security to an amount not less than fifty thousand dollars, in the cases mentioned in sections three hundred and thirty-six, three hundred and thirty-seven, three hundred and thirty-eight, where it would otherwise, according to those sections, exceed that sum.

An appeal properly taken and with the proper security, stays the proceedings in the court below, although the time for excepting to the sureties

has not expired. Thompson vs. Blanchard et al., 2 Com. 561. Undertak

$ 340. [Sec. 289.] The undertakings prescribed by secbe in one tions 334, 335, 336, and 338, may be in one instrument or instrument or several several, at the option of the appellant; and a copy, incluAmended ding the names and residence of the sureties, must be

served on the adverse party, with the notice of appeal un

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1849.

be appro

Amended 1849.

less a deposite is made as provided in section 334 and notice thereof given.

The court will impose costs on all parties who commit irregularities, even if the irregularity occur by the party disregarding the requirements of this section in such a manner as not to affect the substantial rights of the parties. Beech vs. Southworth et al., 1 Code Rep. 99.

§ 341. | Sec. 290.] An undertaking upon an appeal shall Seempty.co be of no effect, unless it be accompanied by the affidavit of justify.

ved and to the sureties, that they are each worth double the amount specified therein. The respondent may, however, except to the sufficiency of the sureties, within ten days after the notice of the appeal; and unless they or other sureties justifiy before a judge of the court below or a county judge, as prescribed by sections 195 and 196, within ten days thereafter, the appeal shall be regarded as if no undertaking had been given. The justification shall be upon a notice of not less than five days.

Where it is intended to except to the sureties on an appeal, the notice
should be of exception “to the sureties," not “to the undertaking.'s
Young vs. Colby, 2 Code Rep. 68.
See sections 327 and 412, and notes.

§ 342. [Sec. 291.] In the cases not provided for in sec- Perishable tions 335,336,337,338, and 339, the perfecting of an appeal,

sold, not. 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 perish - 1819. able 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.

§ 343. [Sec. 292.] The undertaking must be filed with the clerk, with whom the judgment or order appealed be filed. from was entered.

T

property may be

withstandmg appeal.

Amended

Underta king must In what cases.

1849

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 ap-

peals.
346. Appeal, where heard.

347. Judgment on appeal, where entered and docketed.
$314. [Sec. 293.] An appeal may be taken to the supreme

court, from the judgment rendered by a county court, or by Amendad 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.

An appeal will not lie from the order of the county court reversing a judgment of the justice of the peace, where the county court has ordered a new trial. Burnett agt. Harkness, 4 How. 158.

The court can grant no relief unless the certificate is obtained in thirty

days. Clark vs. McClaughry, 22 Wend. 627; Monell's Prac. 254. Security § 345. [Sec. 294.] Security must be given upon such given, as

appeal, in the same manner, and to the same extent, as peal Court of ap- upon an appeal to the court of appeals. peals.

§ 316. [Sec. 295.] Appeals in the supreme court shall be Appeal,

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.

must be

upon ap

where heard.

A surrogate's order, admitting or refusing a will to probate, when ap. pealed from, would be heard in the first instance at genera term. Watts and others agt. Aikin and others, 4 How. 439.

Compare section 348 infra, and notes.

on appeal,

docketed.

9 347. [Sec. 296.] Judgment upon the appeal shall be Judgment entered and docketed with the clerk in whose office the where enjudgment roll is filed. When the appeal is heard in a county other than that where the judgment roll is filed, or Amended 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.

cases.

from cir

special
t-rms to
same court

. Security

cases.

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 courts in

general term. Security on appeal.
349. Orders by a single judge, may be appealed from in certaiu

350. Orders at chambers to be entered before appeal. § 318. In the supreme court, the superior court of the city Appeals. of New-York, and the court of common pleas for the city and suites and county of New-York, an appeal may be taken to the general

in general term from a judgment entered upon the report of the referees term. or the direction of a single judge of the same court, in all on appeal. Such an appeal, however, does not stay the proceed- Amended

1549, 1851 ings, unless the court, or a judge thereof, so order, which order may be made upon such terms, as to security or otherwise, as may be just, such cecurity not to exceed the amount required on an appeal to the court of appeals. In the supreme court the appeal must be heard in the same manner as if it were an appeal from an inferior court.

An appeal will lie from a judgment entered on default under 1st sub. of section 246 (Sec. 202.) Jones vs. Kip, 1 Code Rep. 119. So too from a judgment entered upon report of a referee. Raynor vs. Clark and Law. rence, 7 Barb. 581.

An appeal will not lie to the general term in the first instance upon a case containing questions of fact alone. Collins agt. the Albany and Schenectady R. R. Co., 5 How. 435.

A motion for a new trial, on the ground that the verdict is against evi. dence, can be decided at special term. Lusk agt. Lusk and others 4 How. 418. Graham agt. Milliman, id. 435. Leggett vs. Mott, id. 325. Collins agt. the Albany and Schenectady R. R. Co., 5 How. 435.

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