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Costs against as


Passed 1849.

against the plaintiff, shall be a charge against the party for whose benefit the action was prosecuted, and not against the people.

§ 321. In actions, in which the cause of action shall, by siguse of assignment after the commencement of the action, or in action,afler

any other manner, become the property of a person not a brought

party to the action, such person shall be liable for the costs, in the same manner as if he were a party, and payment thereof may be enforced by attachment.

§ 322. Upon the settlement, before judgment, of any action mentioned in section 304, no greater sum shall be demanded from the defendant as costs, than at the rates prescribed by that section.

And the plaintiff is entitled to full costs up to the time of settlement. Rockefeller vs. Weiderwax, 3 How. 382; S. C., 2 Code Rep. 3.

Costs on a settlement.

Passed 1849.


Of appeals in civil actions.

CHAPTER I. Appeals in general.

II. Appeals to the court of appeals.
III. Appeals to the supreme court from an inferior court.
IV. Appeals in the supreme court, and the superior court, and

the court of common pleas of the city of New York, from

a single judge to the general term.
V. Appeal to the court of common pleas for the city and county

of New York, or to a county court,' from an inferior


Passed 1849.

Appeals in general.
SECTION 323. Writs of error abolished, and appeals substituted.

324. Orders made out of court, how vacated or modified.
325. Who may appeal.
326. Parties how designated on appeal.
327. Appeal how made.
328. Clerk to transmit papers to appellate court.
329. Intermediate orders affecting the judgment, may be reviewed

on the appeal.
330. Judgment on appeal.
331. Certain appeals to be within two years.

332. Other appeals within thirty days. § 323. [Sec. 271.) Writs of error in civil actions, as they Writs ofer

abolish have heretofore existed, are abolished, and the only mode ed and ap

peals subof reviewing a judgment, or order, in a civil action, shall stiluted. be that prescribed by this title. See section 268 and notes.

§ 324. [Sec. 272.) An order, made out of court, without Orders notice to the adverse party, may be vacated or modified, of court, without notice, by the judge who made it, or may be vaca-ted of ted or modified on notice, in the manner in which other motions are made. On a motion to vacate or modify, no opposing affidavits can be used by

nor additional affidavits by the plaintiff. Conklin and Conk. lin agt. Dutcher, 5 How. 386.

As to orders granting injunctions, see section 226 and notes, and Mills vs.
Thursby, 1 Code Rep. 121.

$325. [Sec. 273.] Any party aggrieved may appeal in who may the cases prescribed in this title.

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how made.

Amended 1849.

An appeal from a judgment does not lie until it is entered and perfected, and the time of appealing begins to run on service of notice of entry of judgment. Bentley vs. Jones et al., 4 How. 335.

If the appellant neglects to prosecute his appeal, it will be dismissed with costs. Hogan vs. Brophy, 2 Code Rep. 77.

And if he elects to dismiss his own appeal he must enter the order and

pay the respondent's costs. Burnett agt. Harkness, 4 How. 158. Parties, how desigo

§ 326. [Sec. 271.] The party appealing, shall be known appeal.

as the appellant, and the adverse party as the respondent. But the title of the action shall not be changed, in consequence of the appeal.

But the entitling, as it regards the court, must be changed. Clickman

vs. Clickman, 1 Com. 611. Appeal,

$ 327. [Sec. 275.] An appeal must be 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. When a party shall give in good faith, notice of appeal from a judgment or order, and shall omit through mistake, to do any other act necessary to perfect the appeal or to stay proceedings, the court may permit an amendment on such terms as may be just.

The notice of appeal must be served on the attorney of record, in the court below. Tripp agt. De Bow, 5 How. 114.

The time of service of notice on the clerk when made by mail, does not date from the day of depositing in the Post Office. Crittenden agt. Adams and others, 5 How. 310.

Time to appeal cannot be enlarged by the court. Enos and others agt. Thomas and Hunter, 5 How. 361; Renoul vs. Harris, 2 Sand, 642. Contra, Crittenden agt. Adams and others, 5 How. 310; Traver vs. Silvernail, 2 Code Rep. 96. Westcott vs. Platt, 1 Code Rep. 100.

But where notice of appeal was given in good faith, the court allowed other debts to be done necessary to complete the appeal. Rich vs. Beekman, 2 Code Rep. 63.

§ 328. [Sec. 276.] Upon the appeal allowed by the seappellate cond and third chapters of this title, being perfected, the

clerk with whom the notice of appeal is filed, shall, at the expense of the appellant, forth with transmit to the appel


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Amended 1849.

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late court a certified copy of the notice of appeal and of
the judgment roll.

$329. [Sec. 277.] Upon an appeal from a judgment, the Interme-
court may review any intermediate order, involving the ders affect-
merits, and necessarily affecting the judgment.
$ 330. [Sec. 278.] Upon an appeal from a judgment or the appeal.

order, the appellate court may reverse, affirm or modify the ou appeal.
jugdment or order appealed from in the respect mentioned
in the notice of appeal, and as to any or all of the parties,
and may, if necessary or proper, order a new trial. When

the judgment is reversed or modified, the appellate court
may make complete restitution of all property and rights
lost by the erroneous judgment.

But only such parts of the judgment or decree as are appealed from can
be reviewed. Kelsey and wife vs. Western, 2 Com. 500.
$ 331. [Sec. 279.] The appeal allowed by the second certain ap-

peals with. and third chapters of this title must be taken within two in two years after the judgment. $ 332. [Sec. 280.] The appeal allowed by the fourth Other ap

peals withchapter of this title, must be taken, within thirty days, days. after written notice of the judgment or order shall have been given to the party appealing.

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See section 327, supra and notes.

in thirty

Amended 1849.



In what cases.

Appeals to the Court of Appeals. SECTION 333. In what cases. 334. On any appeal security must be given to pay costs and dam.

ages, not exceeding $250, or deposit made, unless waived. 335. On judgment for money, security to stay execution. 336. If judgment be to deliver documents, they must be deposit

ed. 337. If to execute conveyance, it must be executed and deposited. 338. Security where judgment is to deliver property, for a sale of

mortgaged premises. 339. Stay of proceedings upon security given. 340. Undertakings may be in one instrument, or several. 341. Security to be approved and to justify. 342. Perishable property may be sold, notwithstanding appeal.

343. Undertaking must be filed. § 333. [Sec. 282.] An appeal may be taken to the court of appeals, in the cases mentioned in section 11.

See sections 11 to 15 and notes. On any ap

$ 334. [Sec. 283.] To render an appeal effectual for any peal secufity must purpose, a written undertaking must be executed, on the be given to pay cosis part of the appellant, by at least two sureties, to the effect, exceeding that the appellant will pay all costs and damages which $250,or de. posit made, 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 was entered, to abide the event of the appeal. Such undertaking or deposit may be waived by a written consent on the part of the respondent.

The undertaking must be “to pay costs and damages,” to be effectual. Langley and Langley vs Warner, 1 Com. 606; S. C., 3 How. 363.

Where an appeal is taken from two orders, one undertaking in the sum of $250, is not sufficient. Schermerhorn vs. Anderson and others, 1 Com. 430; S. C., 2 Code Rep. 2.

Where one of several defendants appearing by different attorneys, appeals and gives one bond to cover the whole judgment, as required by the next section, and one bond according to the requirements of this section, held sufficient. Smith vs. Lynes and others, 4 How. 209; S.C., 2 Com. 569.

The appeal is perfected when the proper undertaking, with an affidavit of the sureties has been executed, and notice of the appeal has been served on the adverse party, and on the clerk with whom the judgment or order was entered. Thompson vs. Blanchard et al., 4 How. 210; S.C., 2 Com. 561.

unless waived.

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