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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.

§344. [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.

Security must be given, as upon appeal to

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.

§ 345. [Sec. 294.] Security must be given upon such appeal, in the same manner, and to the same extent, as court of ap- upon an appeal to the court of appeals.

peals.

Appeal, where heard.

§ 346. [Sec. 295.] 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.

A surrogate's order, admitting or refusing a will to probate, when appealed 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,

tered and docketed.

§ 347. [Sec. 296.] Judgment upon the appeal shall be Judgment entered and docketed with the clerk in whose office the where en judgment 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.

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

cases.

350. Orders at chambers to be entered before appeal.

1849.

§318. In the supreme court, the superior court of the city Appeals.

from cir

special

terms to

in general

Security

1849, 1851

of New-York, and the court of common pleas for the city and quits and county of New-York, an appeal may be taken to the general same court 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. cases. Such an appeal, however, does not stay the proceed- Amended 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 security 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.

Orders by a single

judge may be appeal

certain

cases.

If a party omits to make and serve his case within the ten days required by rule, he will be deemed to have waived his right thereto. Doty vs. Brown, 3 How. 375.

Where a party desires a review of a trial in a case where the whole has been reported upon by a referee, he shall prepare a case, and the practice shall be pursued as prescribed by Supreme Court Rule 15. Pepper agt. Goulding, 4 How. 310.

A stay of proceedings may be obtained from a judge other than the one who tried the cause, to make a case or bill of exceptions. Huff vs. Bennett, 2 Code Rep. 139.

See sections 268, 349, 346, 460, and notes, and Supreme Court Rules 15 to 21, 27, 30, 31, 32.

§349. [Sec. 299.] An appeal may in like manner and with

in the same time be taken from an order made at a special

ed from in term or by a single judge of the same court, or a county or a special county judge, in any stage of the action, including Amended proceedings supplementary to the execution, and may be thereupon reviewed in the following cases:

1849, 1851.

1. When the order grants or refuses a provisional remedy, or grants, or refuses or dissolves an injunction;

2. When it grants or refuses a new trial, or when it sustains or overrules a demurrer;

3. When it involves the merits of the action, or some part thereof;

4. When the order in effect determines the action, and prevents a judgment from which an appeal may be taken ;

5. When the order is made upon a summary application in an action after judgment, and affects a substantial right.

On an appeal from a chamber order, it is not necessary to give an undertaking. Allen vs. Johnson, 2 Sand. 629.

The appealing party must serve copies of all papers which he is required to file in order to perfect the appeal. Beach vs. Southworth and Litchfield, 6 Barb. 173.

An order granting an attachment may be appealed to the general term. Conklin and Conklin agt. Dutcher, 5 How. 386.

As to when an order may be said to “involve the merits," see St. John et al. vs. West et al., 4 How. 329; Bedell vs. Stickles, id. 432; Whitney agt. Waterman and Whitney, id. 313; Cruger vs. Douglass, 2 Code Rep. 123.

As to costs upon orders appealed under the code of 1849, see Savage and Cowen agt. Darrow, 4 How. 74; Wilson agt. Allen, id. 54; Livingston agt Miller, id. 42.

See section 348 and notes.

chambers,

tered, before appeal.

$350. [Sec. 300.] The last section shall include an order Orders at made out of court upon notice; but in such case the order to be enmust 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.

But not an ex parte order. Lindsay agt. Sherman, 5 How. 308.

If the order is improperly entered, the court, on motion, will strike it out. Bedell vs. Powell, 3 Code Rep. 61.

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. Appellant to make affidavit.

354. Copy affidavit and notice of appeal to be served.
355. Security to stay execution.

356. Form of undertaking.

357. Execution, how stayed.

358. In case of death of justice, undertaking to be filed.

359. Counter affidavits allowed, and when and how served.

360. Return when and how made, and compelled.

361. How made if justice be out of office.

362. Further return may be ordered.

363. If justice be dead, insane or absent from State, witnesses to
be examined. If in another county, return may be com-
pelled.

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laws re

this chapter

§ 351. [Sec. 301.] All statutes, now in force, providing Existing for the review of judgments in civil cases, rendered by courts pealed, and of justices of the peace, by the marine court of the city substituted. of New-York, by the justices' courts in the city of New- Amended York, by the municipal court of the city of Brooklyn, and by the justices' courts of cities, and regulating the prac

1849.

By what courtsjudg

reviewed.

Amended 1949.

tice 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.

In causes originating in a justice's court, the supreme court has merely an appellate jurisdiction. It cannot review a judgment rendered in the county court by default. Dorr agt. Birge and Wells, 5 How. 323.

§ 352. [Sec. 302.] When the judgment shall have been ments to be 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.

Appellant

fidavit.

Amended 1851.

to make af- § 353. [Sec. 303.] The appellant shall, within twenty days after judgment, make or cause to be made, an affidavit, stating the substance of the testimony and proceeding before the court below, and 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 shall have twenty days, after personal notice of the judgment, to make and serve the affidavit and notice of appeal provided for in this and the next section.

Copy affidavit and

notice of appeal to

§ 354. [Sec. 304.] The affidavit and a notice of appeal must, within the same time, be served on the justice, and a notice of the appeal on the respondent, personally, or by leaving it at his resi1849, 1851. dence with some person of, suitable age and discretion, or in

be served. Amended

case the respondent is not a resident of the county, in the same manner on the attorney or agent, if any, who is a resident of such city or county, who appeared for him on the trial; and the appellant must, at the time of the service of the notice of appeal on the justice, pay to him the costs of the action included in the judgment, together with two dollars costs of the return, which shall be restored to him in case the judgment is reversed, and be included in the judgment for costs, on re

versal.

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