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 within 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. Wesț 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, be §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 fore appeal. 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. 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 364. Hearing, upon return. Dismissing appeal, if not brought on. laws re this chapter substituted. § 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 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 courts judg 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 appeal to § 354. [Sec. 304.] The affidavit and a notice of appeal must, notice of 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 reversal. The appellant should state the substance of the proceedings below, where the alleged error consists, and the substance of the testimony when the latter bears upon the question sought to be reviewed. Partridge and Goold vs. Thayer and Truesdale, 2 Sand. 227. Williams vs. Cunningham, id. 632; Brown and others vs. Stearns, 2 Code Rep. 119. Purdy vs. Harrison, 1 Code Rep. 54; Davis vs. Loundsbury, id. 71; Thompson vs. Hopper, id. 103; Geraghty vs. Malone, 1 Sand. 734. stay execu § 355. Sec. 305.] If the appellant desire a stay of exe- Security to cution of the judgment, he shall give security as provided tion. in the next section. Amended 1849. undertak § 356. [Sec. 306.] The security shall be a written under- Form of taking, executed by one or more sufficient sureties, approved ing. by the county judge, or by the court below, to the effect that Amended if judgment be rendered against the appellant, and execution thereon be returned unsatisfied, in whole or in part, the sureties will pay the amount unsatisfied. 1849. how stay. 1849. death of § 357. [Sec. 307.] The delivery of the undertaking to Execution, the court below shall stay the issuing of execution; or if it ed. have been issued, the service of a copy of the undertaking, Amended certified by the court below, upon the officer holding the execution, shall stay further proceedings thereon. §358. [Sec. 309.] Where, by reason of the death of a justice In case of of the peace, or his removal from the county or any other justice, undertaking cause, the undertaking on the appeal, cannot be delivered to to be filed. him, it shall be filed with the clerk of the appellate court, and Amended notice thereof given to the respondent, or his attorney or agent, as provided in section three hundred and fifty-four, it shall, thereupon, have the same effect as if delivered to the justice. 1849. fidavits, al when and how served § 359. [Sec. 311.] When the affidavit and notices of ap- Counter afpeal shall have been served, the respondent may supply or lowed and correct material omissions or misstatements therein, by an affidavit on his part, a copy of which shall be served on the Amended justice, and also on the attorney, if any, who prosecutes the appeal, or if there be none, on the appellant, within ten days after receiving notice of the appeal. 1849. Return when and and com § 360. [Sec. 311.] The court below shall, thereupon, afhow made ter ten days and within thirty days after the service of the pelled. notice of appeal, make a return to the appellate court of the Amended testimony, proceedings and judgment, and file the same, with 1649. How made if justice office. the affidavits, in the appellate court, and may be compelled to do so by attachment. But no justice of the peace shall be bound to make a return, unless the fee prescribed by the last section of this chapter be paid on service of the notice of appeal. The justice must make a return of all the testimony and proceedings, where a return is ordered. It is not sufficient to make a return as to the particulars in which the affidavits are conflicting. McCaffrety vs. Kelly, 2 Sand. 637. § 361. [Sec. 312.] When a justice of the peace, by whom a be out of judgment appealed from was rendered, shall have gone out of office, before a return is ordered, he shall, nevertheless, make a return, in the same manner, and with the like effect, as if he were still in office. Further re turn may § 362. [Sec. 313.] If the return be defective, the appellate be ordered court may direct a further or amended return, as often as may be necessary, and may compel a compliance with its order, by attachment. Ifjustice be § 363. [Sec. 314.] If a justice of the peace, whose judgdead, in- ment is appealed from, shall die, become insane, or remove sane, or absent from state, from the state, the appellate court may examine witnesses, witnesses to be examined. If in ano ther county on oath, to the facts and circumstances of the trial or judgment, and determine the appeal, as if the facts had been returned by the justice. If he shall have removed to return may another county within the state, the appellate court may be compelcompel him to make the return, as if he were still within the county where the judgment was rendered. led. Hearing upon return. § 364. [Sec. 315.] If a return be made, the appeal may be brought to a hearing at a general term of the appellate court, upon a notice by either party, of not less than eight days. It shall be placed upon the calendar and continue thereon |
