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SECTION 1356, 1357. Appeal, in what cases allowed.
1358. Appeal, how taken.
$ 1356. An appeal may be taken to the general term of the supreme court from an order refusing a state writ. For that purpose, if the order have been made by a judge out of court, it must be first entered with the clerk.
§ 1357. An appeal may be taken to the general term of the supreme court from the judgment after the allowance of a state writ.
$ 1358. The appeal, mentioned in the last two sections, must be taken within sixty days after written notice of the judgment or order is given to the party appealing. Tue appeal is made by the service of a notice in writing on the adverse party, and on the clerk with whom the judgment or order appealed from is entered, stating the appeal from the same or some specified part thereof.
$ 1359. Upon the appeal being perfected, the clerk, with whom the notice of appeal is filed, must, at the expense of the appellant, forth with transmit to the appellate court, a certified copy of the notice of appeal, and of the judgment or order appealed from, with all papers relating thereto.
§ 1360. Upon an appeal from a judgment, the appellate court may review any intermediate order, involving the merits, and necessarily affecting the judg. ment.
$ 1361. Upon an appeal from a judgment or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from, in the respect mentioned in the notice of appeal, and may, when it is necessary or proper, order a new trial.
§ 1362. The appellant must furnish the appellate court with copies of the notice of appeal, and of the judgment or orider appealed from, and of all other papers transmitted with it, to the appellate court. If he fail to do so, the appeal may be dismissed.
§ 1363. To render an appeal effectual for any purpose, a written undertaking must be executed, on the part of the appellant, by at least two sureties, to the effect that the appellant will pay all costs and damages that may be awarded against him on the appeal, not exceeding two hundred and fifty dollars, or that sum must be deposited with the clerk, with whom the judgment or order appealed from was entered, to abide the event of the appeal. The undertaking must be filed with the clerk.
OF SUMMARY PROCEEDINGS.
GHAPTER 1. Confession of judgment, without action..
II. Submitting a controversy without action.
CONFESSION OF JUDGMENT, WITHOUT ACT. ON.
SECTION 1364. Judgment on debt, or liability authorized.
1365. Statement, what it must contain.
§ 1364. A judgment by confession may be entered, without action, either for money due, or to become due, or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by this chapter.
Amended Code, 382.
§ 1365. A statement in writing must be made, signed by the defendant and verified by his oath, to the following effect:
1. It must authorise the entry of judgment for a specified sum:
2. If it be for money due or to become due, it must state concisely the facts out of which it arose, and must show that the sum confessed therefor is justly due, or to become due:
3. If it be for the purpose of securing the plaintiff against a contingent liability, it must state concisely the facts constituting the liability, and must show, that the sum confessed therefor does not exceed the same.
Amended Code, § 383. § 1366. The statement may be filed with a county clerk, or with the clerk of the superior court of the city of New-York, or the clerk of the court of common pleas of the city of New-York, who must endorse upon it, and enter in the judgment book, a judgment of the supreme or superior court or court of common pleas, for the amount confessed, with five dollars costs. The statement and affidavit with the judgment endorsed, thereupon become the judgment roll.
Amended Code, g 384.
§ 1367. In a justice's court where the court has authority to enter the judgment, the statement may be filed with the justice, who must thereupon enter in his docket, a judgment of his court, for the amount confessed, with one dollar costs. If a transcript of such judgment be filed with the county clerk, a copy of the statement must be filed with it.
$ 1368. Upon a bond and warrant of attorney executed and delivered before the first day of July, 1848, judgment may be entered in the manner provided by sections 1364,1365,and 1366, upon the plaintiff's filing such bond and warrant of attorney, and a statement signed and verified by himself, in the form prescribed be section 1365, the amount of the judgment to be limited to the sum mentioned in the plaintiff's statement, with five dollars costs.
Amended Code, $ 424.
SUBMITTING A CONTROVERSY, WITHOUT ACTION.
SECTION 1369. Parties may submit controversy without action.
1370. Judgment on, same as in other cases, but without costs.
§ 1369. Parties to a question in difference, which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same, to any court which would have jurisdiction, if an action had been brought. But it must appear by affidavit, that the controversy is real, and the proceeding in good faith, to determine the rights of the parties. The court must thereupon hear and determine the case, at a general term, and render judgment thereon, as if an action were depending.
Amended Code, 372.
$ 1370. Judgment must be entered in the judgment book, as in other cases, but without costs, for any proceeding prior to notice of trial. The case, the submission, and a copy of the judgment constitute the judgment roll.
Amended Code, 373.