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and county of New York, an appeal upon the law may be taken to the general term from a judgment entered upon the report of the referees or the direction of a single judge of the same court, in all cases, and upon the fact when the trial is by the court or referees. Such an appeal, however, does not stay the proceedings, unless security be given as upon an appeal to the court of appeals, or 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.
This section, before the amendment of 1851, was as follows:
a. "In the supreme court, the superior court of the city of New York, and the court of common pleas for the city and county of New York, an appeal upon the law may be taken to the general term, from a judgment entered upon the direction of a single judge of the same court. Security must be given upon such appeal in the same manner as upon an appeal to the court of appeals. In the supreme court, the appeal shall be heard in the same manner as if it were an appeal from an inferior court."
The amendments of 1852 are in italic.
See Supreme Court Rule 27, and note to ss. 265, 268.
b. This section, before the amendment of 1851, was limited to appeals upon matters of law. Droz v. Oakley, 2 Code Rep., 83.
c. An appeal would not, under code of 1849, lie in the first instance to the general term, on a case containing questions of fact alone. Application had to be made, in the first instance, at the special term. Collins v. Alb. & Sch. R. R. Co., 5 Pr. R. 435; Hastings v. Mc Kinley, 3 Code Rep., 10.
d. In Jones v. Kip, 1 Code Rep., 119, the New York common pleas held, that there could be no appeal from a judgment entered for want of an answer; but in Raynor v. Clark, 3 Code Rep., 230, the supreme court held, that an appeal might be taken from such a judgment, on the ground that the complaint did not state facts sufficient to constitute a cause of action.
e. The only mode of reviewing a judgment on demurrer to the complaint, is an appeal under this section. Dolph v. White, 8 Pr. R., 275.
f. A writ of error (an appeal) lies only from final judgment, except in cases speeially provided (Heckingbottom v. Shell, 3 Sme. & M., 588), and therefore a judgment entered on demurrer to an answer leaving an issue of fact undecided; held that the judgment was not final until all the issues were disposed of; and the appeal was dismissed. Perkins v. Farnham, 10 Pr. R., 120.
g. The court may make an ex parte order staying proceedings on the judgment on the report of referees, pending an appeal from such judgment under this section. But a judge out of court is not authorized to make such an order; the most he can do is to grant an order to show cause, before himself or some other judge, or some court, why proceedings should not be stayed, &c. Steam Navigation Co. v. Weed, 8 Pr. R., 49, per Harris, J. In a subsequent case, Otis v. Spencer, 8 Pr. R, 171, Welles, J., held, that a county judge had power to make an order staying proceedings upon a judgment entered on a report of referees, but not to stay proceedings on a judgment after a verdict.
h. If a party appealing from a judgment entered upon the report of a referee, would have proceedings stayed upon the judgment, he must either give the security
prescribed by section 348, or obtain an order for that purpose from the court or a judge. The court may, if it think fit, make the order without requiring notice to the adverse party; but when the application is made to a judge out of court, the most he is authorized to do, is to make an order that the adverse party show cause, before himself or some other judge, or some court having authority to entertain the application, why the proceedings should not be stayed until the case can be heard and decided upon the appeal, and staying proceedings in the mean time. The last paragraph of the 401st section of the code, is as applicable to such an order as any other." ' Per Harris, J., in Steam Navigation Co. v. Weed, 8 Pr. R., 50 ; and in that case an er parle order of a judge of the supreme court, made out of court, staying proceedings on the judgment pending the appeal, was set aside as unauthorized.
a. Where judgment was entered on the report of a referee in favor of the plaintiff, the defendant served notice of appeal, and then obtained an order, ex parte, from a county judge, calling on the plaintiff to show cause why proceedings on the judgment should not be stayed pending the appeal. Welles, J., held, that the judge had power to make such an order; and, referring 'to section 401, said, " This was not the case of a verdict, but of a report of a referee and judgment thereon. Although the word verdict, in a philological sense, embraces the idea of the finding of a referee, as well as of a jury, upon the question of fact submitted ; yet, as used in the code and in a legal sense generally, it is understood to be the determination of a jury, upon the matters of fact in issue in a cause, upon the evidence. (Burrill's Law Dict., Verdict; Code, s. 260.) That the meaning of the word, as used in section 401, was inteuded to be restricted to the finding of a jury is evident, for the reason that by the former practice, and afterwards by statute, a judge of county courts of the degree of counsellor of the supreme court, or a supreme court commissioner, had not the power to stay proceedings on a verdict in a suit in the supreme court. (Laws of 1825, ch. 220, s. 4; 2 R. S., 20, s. 280.) The theory was, and I suppose is still, that where an action had been tried, and a verdict obtained under the direction of a justice of the supreme court or circuit judge, no functionary of a lower grade than those ought to be allowed to prevent the successful party from proceeding to obtain the effect of his verdict. When a party wishes to review the proceed. ings at the trial, and to stay his adversary in the mean time, application for such stay should be made to the justice before whom the trial was had, except under very special circumstances. But these reasons are not supposed to apply to the case of a report of a referee."
b. By this section "provision is made for staying proceedings on the judgment, pending the appeal, by an order, without security, or with differeut or less security thap is required where no order is made. But a county judge cannot make such order in an action in the supreme court. The expression, or unless the court or a judge thereof so order,' refers to the court in which the judgment appealed from was obtained, or a judge of that court.” Per Welles, J., in Otis v. Spencer, 8 Pr. R., 173.
C. "I am asked now to make an order staying proceedings on the judgment until the determination of the appeal. This I cannot do on the papers before me. The report of the reseree, with the exceptions thereto, and the case, if one has been made, should be presented, in order that it may be seen whether there is probable cause for reviewing the decision of the referee. And if there is reason for accepting one surety, instead of two as the code requires, or otherwise dispensing with the requirements of section 348, it should be made to appear.” Per Welles, J., in Otis v. Spencer, 8 Pr. R., 174.
d. Upon appeal from a judgment on report of a referee, the date of issue on the general term calendar, must be the day on which the report is filed. Gould v. Cha. pin, 1 Code Rep. N. S., 74.
Amount of security to stay proceedings under this section. e. On an appeal under this section the undertaking, in order to stay proceedings, in the absence of any order on the subject, must provide for the payment of all the costs, as well as the damages which may be awarded against the appellant on the appeal, not exceeding $250; if the undertaking omit to provide for the damages on the appeal, it is goud so far as it goes, but does not stay the proceedings. Chemung Canal Bank v. Judson, 10 Pr. R., 133.
§ 349. [299.] (Amended 1849–1851-1852.) Orders by a single judge may be appealed from in certain cases.
An appeal may in like manner, and within the same time, be taken from an order made at a special term, or by a single judge of the same court, or a county or special county judge, in any stage of the action, including proceedings supplementary to the execution; and may be thereupon reviewed in the following cases :
1. When the order grants or refuses, continues or modifies, a provisional remedy; or grants, 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, or affects a substantial right.
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.
This section, before the amendment of 1851, was as follows,
a. An appeal may, in like manner, and within the same time, be taken from an order made by a single judge of the same court, and may be thereupon reviewed, in the following cases,
1. When the order grants or resuses a provisional remedy.
3. When the order decides a question of practice which in effect determines the action without a trial, or precludes an appeal.
4. When the order is made upon a summary application in an action after judgment, and affects a substantial right.
The amendments in 1852 are the parts in italic.
6. The justices of the second judicial district in Bedell v. Stickles (4 Pr. R. 433), took into consideration the question as to what cases are appealable under this section, under the code of 1849, with a view to settle the practice in that district ; and stated as their conclusions :
“In the first place we are of opinion, that this section relates only to appeals from orders and judgments in civil actions. This is apparent, as well from the language of the section, as the language of section 323, which is the first section of the title, and declares that the only mode of reviewing a judgment or order in a civil action, shall be that preecribed by this title,' and section 8, which assigns the second part of the code 'to civil actions commenced in the courts of this State, &c. It follows from this view, that appeals in special proceedings are not regulated by section 349, but depend upon the pre-existing laws and practice. Consequently, where the proceeding is of an equitable nature, such as under the former practice would have come within the cognizance of a vice-chancellor and was subject to appeal to the chancellor, in such cases an appeal now lies from a decision of a single justice to this court at a general term. This, of course, includes the applications in regard to the removal of irustees, or the disposition of trust estates which have been before us. But where the special proceeding is of such a nature as not to fall within the juriediction of the former court of chancery, then, as a general rule, po
appeal lies to the general term from the decision of the special term. The ex. ceptions are where such an appeal may be expressly given by statute, or existed according to the former practice of the supreme court. This rule is analogous to the rule formerly prevailing in the court of chancery and the supreme court, the powers of which are transferred to this court by the constitution and judiciary act of 1847.”'
No appeal lies,a. From the decision of a judge in granting or refusing an ex parte order. Sav. ege v. Relyea, 3 Pr. R, 276; 1 Codo Rep., 42; Nicholson v. Dunham, ib., 119; Lindsay v. Sherman, ib. 26.
6. From an order refusing leave to reply, after the time for replying had past. Thompson v. Starkweather, 2 Code Rep., 41.
c. From an order refusing to strike out from a pleading, alleged immaterial, impertinent, or scandalous averments. Whitney v. Waterman, 4 Pr. R., 315.
d. From an order refusing to strike out matter as irrelevant and redundant in a pleading. Bedell v. Stickles, 3 Code Rep., 105.
e. From an order of the special term opening a default, or letting in a party to defend. Bolton v. Depeyster, 3 Code Rep. 141.
f. From an order of the special term directing the board of trustees appointed by the late court of chancery to be prosecuted. Re White, 3 Code Rep., 141.
g. From an order of the special term, granting a new trial and assessment of damages under the act relating to plank roads. Re Cooperstown, fc., Plank Road Co., 3 Code Rep., 148.
h. From an order in the discretion of the court, See St. John v. West, 3 Code Rep., 85; Seeley v. Chittenden, 10 Barb., 303.
i. From an order denying a motion “to modify an order referring the cause back to the referee, and remove the referee.” Perry v. Moore, 3 Code Rep., 221.
j. From an order granting a new trial, on the ground of newly-discovered evidence and for surprise. Seeley v. Chittenden, 10 Barb., 303.
k. From an order at special term, granting temporary alimony. Abbey v. Abbey, 6 Pr. R., 340 n.
1. From an order granting an attachment for disobedience to an order granting temporary alimony. 16.
m. From an order ordering a reerence. Gray v. Fox, 1 Code Rep. N. S., 334 ; Bryan v. Brennon, 7 Pr. R., 359; Dean v. Empire Mut. In. Co., 9 ib. 69.
7. From an order denying a motion to enter on the docket of a judgment the words "secured by appeal,” pursuant to section 282. Fitch v. Livingston, 4 Sand., 712
0. From an order granting or refusing an extra allowance. Dickson v. McEl. wain, 7 Pr. R., 138; Cook v. Dickinson, 5 Saud. 663; Dana v. Fielder, 1 Code Rep. N. S., 224.
p. From an order denying a motion to set aside a judgment, for irregularity, on the ground that no court is named in the summons, and for leave to the defendant to appear and answer. Tallman v. Hinman, 10 Pr. R., 89.
q. From a decision overruling a demurrer as frivolous. Bruce v. Pinkney, 8 Pr. R., 397; Lewis v. Acker, ib., 414; Bauman v. N. Y. Central R. R. Co., 10 ib. 218. Judgment should be entered on the decision and an appeal taken from the judg. ment. Ib.
r. From an order granting a commission with a stay of proceedings. Thatcher v. Bennett, MS.
8. The court on appeal from an order will not interfere with the decision allowing or denying costs of a motion. Dennison v. Dennison, 9 Pr. R., 246.
t. From an order imposing terms as a condition of relief from a default: it is not appealable in respect of such terms,-. g., on giving a plaintiff leave to stipulate, when through his default the defendant is entitled to judgment, as in case of nonsuit. Gale v. Vernon, 4 Sand. 790.
An appeal lies,a. From an order allowing an attachment. Bk. of Lansingburg v. McKie, 7 Pr. R., 364 ; Conklin v. Dutcher, 1 Code Rep. N. S., 49.
b. From an order for the plaintiff to pay the defendant's costs, in an action where an offer has been made, and the plaintiff' has recovered less than the sum mentioned in the offer. McGrath v. Van Wyck, 1 Code Rep. N. S., 157.
c. From an order of reference, after judgment by default in an action to recover personal property, to ascertain the plaintiff's damages occasioned by the taking and detaining; such order having been made on notice to the desendant and after bear ing him in opposition thereto. Emerson v. Burney, 1 Code Rep. N. S., 189.
d. From an order directing the defendant to pay the amount admitted due by the answer. Merritt v. Thompson, 1 Abbott, 223.
e. From an order striking out portions of a pleading; if the portion stricken out may affect the rights of the party. Whitney v. Waterman, 4 Pr. R., 313; Otis v. R088, 8 ib., 195.
f. From an order in supplementary proceedings. Hatch v. Weyburn, 8 Pr. R., 163. The cases contra, Lindsay v. Sherman, 5 Pr. R., 308, and Conway v. Hitchins, 9 Barb., 384 were decided before the amendment made in 1851.
g. From an order allowing costs on the ground that title to real property came in question. 8 Barb., 329.
h. From an order denying a motion to set aside proceedings on the ground that no gummons had been served. Van Rensselaer v. Chadwick, 7 Pr. R., 297,
i. From an order denying a motion to enter an exoneretur of bail. Col. Ins, Ce. v. Force, 8 Pr. R., 353.
j. From an order denying a motion to set aside a report of referees. Matthews v. Jones, 1 Smith, 429.
Rk. From an order denying a motion to enter satisfaction of a judgment, so as to enforce the lien of an attorney. Ward v. Wordsworth, 1 Smith, 599.
1. From an order allowing an action to be entertained in the name of surviving plaintiffs and admitting others in place of a deceased plaintiff. St. John v. Croel, 10 Pr. R., 253.
m. From an order denying a motion to set aside a judgment on the ground, amongst others, that the desendant, the moving party, had not been served with notice of trial. Tracy v. N. Y. Steam Faucet Co., 1 Smith, 357.
n. From an order denying a motion to set aside a judgment on the ground that it was entered after a settlement and satisfaction of the cause of action. Marquat v. Mulvy, 9 Pr. R., 460.
0. From an order denying a stay of proceediugs until the return of a commission to examine witnesses abroad. Thatcher v. Bennett, MS. That was an appeal from so much of an order for a commission as stayed the proceedings of the plaintiff until the return of the commission. The general term of the supreme court in the first district held that the staying the proceedings was in the discretion of the judge, and that they would not review
that discretion where the order was for a stay, but where the judge refused a stay, there although it was still a matter in his discretion, yet inasmuch as an erroneous exercise of that discretion might deprive the defendant of a substantial right, they would in such a case entertain an appeal from the order.
Subdivision 2. p. The provision allowing an appeal from an order when it sustains or overrules a demurrer, is applicable to all cases where leave to amend is given in connection with a decision on a demurrer and also to decisions on demurrer to part of a pleading. Bowman v. N. Y. Central R. R. Co., 10 Pr. R., 210; Cook v. Pomeroy, ib. 221, (reversing Cook v. Pomeroy, 10 Pr. R. 103); but the provision is not applicable when the decision is on a demurrer to an entire pleading—ib. On the other hand, it has been held that this provision applies to every case of a decision on a demurrer where the appeal is taken before any judgment is actually entered. Nolton v. The Western R. R. Co., 10 Pr. R., 97; Nellis v. De Forest, 6 ib. 413 ;