CORNELL UNIVERSITY LAW LIBRARY
The Moak Collection

PURCHASED FOR

The School of Law of Cornell University

And Presented February 14, 1893
IN MEMORY OF
JUDGE DOUGLASS BOARDMAN

FIRST DEAN OF THE SCHOOL
By his Wife and Daughter
A. M. BOARDMAN and ELLEN D. WILLIAMS
‘ornell University Libra

KFN6075.B35

“Ta in
NEW TRIALS AND APPEALS,

oR

THE RULES OF PRACTICE

APPLICABLE TO THE REVIEW OF JUDICIAL DETER-
MINATIONS IN CIVIL ACTIONS AND IN
SPECIAL PROCEEDINGS

UNDER THE

CODE OF CIVIL PROCEDURE,

WITH AN APPENDIX OF FORMS.

BY

EDWIN BAYLIES,

CouNSELOR-AT-Law.

ROCHESTER, N. Y.:
WILLIAMSON & HIGBIE, LAW PUBLISHERS.
1886.
 

VG os

Entered according to Act of Congress, in the year one thousand eight hundred and
eighty-six,

-

By EDWIN BAYLIES,
In the Office of the Librarian of Congress at Washington.

 
PREFACE.

Ir any excuse is needed for the publication, at this time, of a
volume treating of proceedings in review, it is to be found in the
fact that at the present day the service of a notice of appeal is
regarded as a part of the ordinary procedure in an important case ;
that a very considerable portion of the business of the legal profes-
sion is now transacted in the appellate courts; that no work treating
of the practice in those courts has been poblisted 3 in this State during
the last ten years ; that during that period the Code of Civil Pro-
cedure has been enacted, the old Code has been repealed, the rules
of practice have been so far changed or modified as to render the
re-examination of each question as it arises, a measure of ordinary
prudence ; that the many important practice cases decided during
this period are scattered through a hundred volumes of reports ; and
that the modern lawyer cannot afford to make extended examina-
tions of mere questions of procedure.

The object of this volume is to present in a convenient, available
form the statutes, rules and authorities relating to the review of
judicial determinations in civil actions and special proceedings in all
courts exercising appellate jurisdiction. In addition to the statement
of the mode in which questions of law or fact are presented for
review, an attempt has been made to accurately define the limits of
the jurisdiction conferred upon the appellate courts, to specify the
orders which are appealable or non-appealable, to indicate what
questions may be reviewed, and to state the principles governing the
decision of the courts on appeals or on motions for a new trial. In
the chapter on costs, the writer has discussed the amount of costs
recoverable, the cases in which costs are discretionary or in which
they are given to the prevailing party as of course, the right to tax
separate bills of costs, the right to the costs of successive trials and

[iii]
iv Prerace.

appeals, and the construction given by the courts to orders awarding
costs.

In the chapter treating of appeals to the General Term, the pro-
visions of the Code relating to the submission of a controversy with-
out action have been given, not because they have any connection
with the subject of appeals, but for the reason that the practice on
the submission is substantially the same as that on appeal to the
General Term, and could be stated without interfering with the plan
of the work or materially increasing its bulk.

It is a common criticism that works on practice contain a full
statement of matters of common knowledge, and are discreetly silent
upon points not covered by the statutes or decisions. It is the hope
of the writer that this volume will not wholly eseape that criticism ;
that no purely original procedure has been inserted in these pages ;
that the lawyer in search of an authority to support any established
rule of practice may find it readily ; that he may not find herein any
rule not sanctioned by authority ; and that against the defects he
may discover he will set off such matters as he may find to com-
mend, and render his judgment accordingly.

EDWIN BAYLIES.

JOHNSTOWN, Jnue, 1886.
‘TABLE OF CONTENTS.

CHAPTER I.
Appeals in general. :
ARTICLE I,
REMEDIES FOR THE REVIEW OF JUDICIAL DETERMINATIONS.
Page

Section 1. Nature of the remedy by appeal............... cee e cece cena ees 1

Section 2, When the proper remedy is by appeal.............000eceeeee eee 3

Section 8. When the remedy in the first instance is by motion............... 6
Remedies for irregularities or errors in fact..........eeceveseeeeeeceees 6
He parle Orders. iscnasccsas 6 cas 656 sucess wes Kas AOE A SER Ree KRa te 8
Orders made out of court upon notice......... cece cece cece cere eer eeee 8

Section 4. Relief from judgments or orders upon default...............0006. 9

Section 5. Relief from void judgments or orders.............e eee reece eee es 11
Want of jurisdiction........ 0... ccc cece ce eee ee cence ence ete ee en eens 11
Fraud. ........0e0sees sGientihcaivin Mavaa wee te Beh EG yaad noansee anche 12

Section 6. When the remedy is by writ of certiorari... ......... 0.0.0 ee eee eee 13

Section 7. Waiver of the right of appeal....... cc. ce cece cece eee eee ee cee 18
By stipulation or agreement.......... cece cece e eee cote eee e eee eeees 18
By acts inconsistent with the right............ ia 84 ¥adGs Cass Gaes wawesns 18

ARTICLE II.
CouRTs OR TERMS EXERCISING APPELLATE JURISDICTION.

Section 1. The Court of Appeals......... cc ccce cece ec ee eee e ens eceeeenees 23
OF Gani ZAvion’.s <r ener eases se nenieee 6 ie CRSRES EIT TAA aka Gb eeree dS 23
MOL ioia/5 Sac cverepuiaraist aie Gave Saestar GAGE eye he gO SS oleae sieeaaies 23
J UTSAICH Obs ae. occ. cs gd cca syap diana elated alasansg scardeo BG saiehie Bho 49s warn SaLadayeioats 23

Section 2. General Term of the Supreme Court............ cece eee e eee enee 24
Organization; ois osowincie sawn see Vas ve eee s este e Me eueaKoaeyentas 24
Appointment of termS...........00. ee ese eens sha cae ee sdeanigners does 25
From what courts or terms an appeal lies...........0ceeeeeeeeeeee cence 26

Section 3. General Terms of Superior City Courts.............eeeeee ee ee eee 28
Organization ....... Be abd epsaiatelsend ising ERR eae HS CORA Oona Bakcotels essen 28

From what courts or terms an appeal lies. .,..eseeeseeeeeee RG ad Beers 28
vi Taste or Contents.

Appeals in general (Continued). . Page
Section 4, General Term of the City Court of New York........-..0+.++55- 29
OVPAD IZA ON 30:2! ssc rstee cactus Soe setnsien Saas nas hae OER Re eee 29
Appellate jurisdiction. .......... 0. cece cence encore ec enact eeneoestens 30
Section 5. County Courts.....:.... cc cece nce c ener cence eer es erences ecserens 30
Terms and appellate jurisdiction. ........... ees ee cece cece eet ereseees 80

ARTICLE III.

PaRrTIES TO APPEALS.

Section 1. By whom an appeal may be made.......-... 6. cece eee eee eeee 31
PATTY BEOTEV EDs 0-0 si 1 sale Ray aeekls pains eRalelbiew Ree tiwautadse tees ok 31
Who are deemed parties for the purpose of appeal............-...0005- 33
Appeal by one of several parties. .......... 0. eee e ec cee cece cee teens 64
Appeal by a person nota party... .. cece cee cece eee erect ee eeas 35
Appeal after death of adverse party... ...... 0. cc cece eee eee ee eee eee ee 37
Appeals tn forma PAUperts... 0... cece eee eect cent eee teen noes 38
Title of the cause and designation of the parties on appeal.............. 38

Section 2. Who should be made parties to the appeal............... cece ee 39
On appeal from Surrogate’s Court..... 0... cece eee eee ee ee ence eee eeee 39

Section 3. Proceeding to bring in or substitute parties................200005 40
Remedy for a failure to procure a substitution..... 0.0... cece seen eee 42

ARTICLE IV.

PRELIMINARIES To AN APPEAL.

Section 1. Compelling the entry of judgment............ 0. cc cece eee eee eee 43
Section 2. Compelling an entry of an order........... 0.0.06 cece eee ee oe 44
Section 8. Motion for a new trial... .. cece ee eee eee eee eee eee eee 45
ARTICLE V.
TAKING AND PERFECTING AN APPEAL.

Section 1. When the appeal should be from the judgment only.............. 47
Section 2. When the appeal should be from the order only...............005 48
Dismissal of complaint for delaying prosccution...............0.0000008 48
Where judgment has been reversed and new trial ordered............... 48
Section 3. When the appeal shall be taken from both judgment and order... 49
Review of intermediate order and final judgment...................028 49
Order granting or refusing a new trial....... cee e eee ce eee Piste tent ky 49
DECiSIGH UPODiCeMUITER seecwiacieg ais Kaew sea wma esa emetic s Pee eee goals 50

Section 4. When the appeal should be taken from both the interlocutory and
final FUASMER ccs ccasug angen wales Sue daldaeeacas¥es 50

Section 5. Mode of taking an appeal from a determination made in a special
PLOCCEMING isc Suen saw sarselinsivaias eae cars yuaes dee aR ean 51
In weneral ss sacs oe seea yeas Ras Sea do 09 Pee AN a NS RET ROE A TeA MS a glee 61
Mandamus sass cde cirsisie sso ssh o eu sbae aia «6 Oe NTIS MEERA Sasenee we 51
ATbDItratlons seas eusisisaen a sos a dares 4 dads ees Uae ey SRaieeeeaeon wees 52
CertiOralrls <siosae deo east awed 6555 EHRs 4 SERS EE SEA Saies, ca pemegeleenlad 52
Taste oF Contents. vii

Appeals in general (Continued). Page
Summary proceedings. ...... ccc cece cece cece eee e eee ee ee te et eeee eens 52
Assignment for benefit of creditors............. ccc eee eens Saale Geet 53

Section 6. Time within which to appeal........... cece cece eee e cece ee eeees 53
To Court of Appeals........... ats austin a detoeoveet mara raralsia ferstarwig iaiela trae auiSaas 53
To General Term of same COUT... 0... cece cee cece eee e eee e eens 54
To Supreme Court from inferior court .............265 {Mesh anendenonls 54
To Supreme Court from Surrogate’s Court........... cece cece e cece e ence 54
To Superior City Court from an inferior court...........e0. cece eeeeeee 55
To County Court from an inferior COUrt...... 0... cece eect eee eee es 55
In special proceedings. .......... ail weveoars siaicvava ama deyauasicsiaal evan ere “artnacereitas oem 55
Limiting time in which to appeal... 1... 0... ccc eee e eee eee eens 56
Time cannot be extended........... cece cece eee eee ee eee ence enes 59
Waiver of the statutory limit.......... 00... cee cee ee ee ee Neigicig adnhar aaeatonad i 60
Computation of time: sa inse oes ea'c ug og een ss yeas am Sawn einee diel e's 61
Premature appeals......cesceecseerceeree iURisadn tech coarse sees OL

Section 7. Notice of appeal...........ccceccececs cece cc enaneesceveeeeeces 62
Requisites of the notice... 00... 0... cece cece cece cere eens eee een eeenees 62
Specifying interlocutory judgment or intermediate order................ 63
Stipulation for judgment absolute... ....... cece cee ee cee eee een eee eee 64
Upon whom served...... ia rere sient tucareea eo ere SURES Tamtwien ne sae ehe Sanne 64
HOW SERVED E25) 6.2.5 :c'5 3 .c.e ieee Wipiepi a aienctinascwans satiny. oid Snsale id Oak SEER Hine Son 66

Section 8. Security to perfect an appeal......... cc cece eee cence eee eeee 68
When security is required........ 0... ccc cece cece ee ee ee een eeeeeees 68
When security is not required to perfect an appeal................ seen 69
Appeal not perfected until security is given........... aha cet viiayaile suarena nists W
Requisites of the undertaking.......... ccc. c cece ee eer ee eee e nee eeecenes 7
Perfecting an appeal from a justice’s court, etC...... ©. cece cee eee e eens 73

ARTICLE VI.

Staymne Execution on APPEAL.

Section 1. In general.............. ‘one sioralitatstewuiele.s iuulabls'e da ate geisge Ghieatalare ¥ 63)
Section 2. On appeal to the Court of Appeals........... 0. cece cence ee eeee 75
From judgment or order for a sum of money............. 0 0c cee ee eens 75
From judgment or order for delivery of property... ..........02.eeseeee 77
From judgment or order directing conveyance. .............ee ec ee ences V7
From judgment for real property......... cece cree cece ener teen eee eens 78
In action for specific performance. ....... 6. cece ce cee eee ene 79
When an order is necessary....... 6... cece cece cece eee cette ee eeeee 79
Section 8. On appeal to Superior Court from inferior court................- 80
From judgments «4 iiss savnasonneweds ote eens de eee bed elses ameteaee cei 80
From Ordetsccuwaeussseees sso apaarneesar steeds ee see sense es gaa daee 81
Section 4. On appeal to General Term of same court............ 0... eee e eens 81
Undertakings s..032.vendaaaheeenskaes Ghaatet Meee eee tees Sameer ee 81
Stay by Orde nce cc cd oe tet shalt name AEE Y oh aa ee aE ATES 82
Obtaining aniGTdet co cisccenemenninene oe eeeeaneee a Rae hae naunebnals 82
On appeal from orders under the general banking act...........e.ee sees 84

Section 5. On appeal in special proceedings.........ccccceceseeeeereee vee 85
Stay by Order as cecscauns seomawganee's Sid esen cee e eas peaau sees erees 85
viil Taste or ConrEnts.

Appeals in general (Continued). Page
Flabeas: Corpus sis sidvieians savenexavoes lamin walsaaies 00 0s o's 54-0'e'e's sale sia arc 85
Mandamus... ...... ccc eece cece tseeeeeeeeres eb Seas ease da). sONee ase . 87
Prohibition........ Heb abs beeee cee i454 eo 8s soos eed tne nmedmareRmenenaee ee 87
Summary proceedings.........0+.2eee05 oN se wes Sale deena oka eee 88
Arbitration......... Seis @ 8 wisss Wee, via aid ermepmar ers w ewre Re Sre ante tere tere are Hae aay 88

Section 6. On appeal from a Surrogate’s Court or from a Justice’s Court.... 89

ARTICLE VIL

GENERAL PROVISIONS AS TO SECURITY ON APPEAL.

Section 1. Waiver of security....... ccc cece eet eee ee eeneen seers eeteees 89
Section 2. Deposit in lieu of undertaking ............eceeeeececsec er eeeeee 89
Section 3. Dispensing with or limiting security on appeal..............-0.- 91
People need not give Security... 2.00. cece cece cece cece eter ence eee 91
On appeal by a municipal corporation. ...........2cc cee re cece cece eens 91
On an appeal by a receiver of a banking association..............0.065- 92
On appeal by executor, CtC....... cece cece cence ence ence ee eeettenene 92
Limiting aggregate amount of security.........ceeee cece ence eee e ee eeeee 93
Section 4. Requisites as to form and execution of undertaking.............. 93
Formal parts of an undertaking....... sie GGMeRa eee ewislakTealeewenee eee 93
DIPOLES oo yecoius Puig vuiek Silos bases AGW eh Glee Sa eee se UIe ES «4 sino, 994
Affidavit of sureties......... dibs. Fig: Sts late sia etd sal acstat qinierersenuatcnions cisisreseisiaees 95
Acknowledgment. ...........ccceeveeseeeees walelbbiele’sbalelslaats elas wa eet 96
ASDDTOVAL w sieiciar terse: lars cies winie stassleid slaps sass ioeieis 8's aRGa'e gin'e 64s 4 slag in’ stetals slaians » 96
Defective-undertakings ..::c¢scwssataireeecie cece eeivey geevesye es ours 97
On appeal from a Surrogate’s Court.......... ccc cece cece eee eee eee 97
On appeal from a Justice’s Court. ...... 0.0. eee eee eee eet etre eee 98
Section 5. Filing undertaking, service of copy and notice of filing.......... 98
With whom undertaking filed. ........ ccc cece cee eee e ee cece tenes 98
Serving copy undertaking and notice of filing............. 0.0... cece eee 98
Section 6. Justification of sureties. .4...... ccc cee eee e cece eee tee ee eeeee 100
Exception. to.suretie@eccs scscncccesvaeccecteee ners see seca sa star cise: 100
Sureties excepted to must justify... .... ccc cece cece cece eee e eet eee eee 100
Proceedings on justification. ...... 0... cece eee c eee tee eee tect ence eeee 101
Qualifications of sureties........... diitieie SA Eaa B.S mlesd nate w atnayerorny Wasiios 102
Decision of judge...........e.e08 AweE Raw Reaisiniidodendieees a2 yaad MES 103
Effect of failure to justify, etc. ..... 0c. cc cee cece eee eee e ener eee 103
Section 7. Effect of perfected appeal and stay of proceedings............... 104
In general.........eeeeeee eee sence eee tees bee eee ter sme sims Lesuelanpes 104
Where the appeal is from a judgment awarding an injunction........... 105
Continuance of the stay... scccseececwinieiien naires cece es tussiseisaetees 106
Section 8. Discharging levy upon personal property....... ... dente gen 106
Section 9. Suspending lien of judgment appealed from...............0005 107
Lien may be suspended by order of the Court. ...........cee sence eeeneee 107
Suspending lien in another county........... cc ce cee cece eter teeter ens 108
From what time lien suspended. ...........cecec cece cece teen eeee eee 109
Effect: of the orders cs cs.ccccias sce caas doa ener suas eeeiweedisasave eee 109
Section 10. Compelling execution of new undertaking. ...........0.eeeee eee 110
When sureties become insolvent............. i ASA SAY GAR 110
TaBLE oF CoNTENTS. ix

Appeals in general (Continued). Page
When sum fixed in undertaking is insufficient inamount................ 111
Section 11. Liability of sureties upon an undertaking given on appea......... 112
Discharge of sureties from liability..... siiidte-Siesvesin eae raw eiarece de Ademee coh 114
Limitation of actions upon undertakings given on appeal..............- 115

ARTICLE VIII.

Currmne Drerects IN PROCEEDINGS To TAKE AN APPEAL OR TO Stay EXECUTION.

Section 1. Code provisions... ......ccce ce cce cece eee e nese en sneer seeseeseese 116

Section 2, Amending notice of appeal......... NEES aielateleials a iaesnipte: orale eck Giant 117

Section 3. Curing defects in undertaking.................. Si o'slne sls Guise shies 118

Section 4. Proceeding to obtain amendment, etc............ceceecececceres 119
Laches.........cceeeee cee i Baris ene ainisietes: iiss Ss easieles's e's saat, 219

ARTICLE IX.
Mops OF BRINGING QUESTIONS BEFORE THE APPELLATE COURT FOR
REVIEW.

Section 1. Mode of obtaining a review of questions of fact.............000-- 120
After a trial of all the issues by a jUry... 0... ccc cece cece cece e ence eee 120
After the trial of specific questions of fact by a jury...............005- 120
Upon a challenge to a juror...... WEAR EESE SS oo a6 so wie MMS ES aRG EES 122
After jury trial of issue of fact in a special proceeding.................- 122
After a trial by the court or referee... .. cece cee ce cece eee ee eseeeeees 122
After a trial before a surrogate........ ccc cece eee eee e cere ceeeeeeens 123
After trial before a justice of the peace........ ccc cc cece cee eee e en eeen 123

Section 2. Mode of presenting questions of law for review....... watelotewnds 124

Section 3. How exceptions must be taken to be available...............005- 126
To rulings upon the trial... .. 0... cece cece ee cence cent eee n cece ence 126
Rulings made after the cause is submitted......... 0... cece cere cence neces 127
Extension of time to make and file exceptions. ....... ceccencsceerceess 129

Section 4. Upon what papers the appeal will be heard............. fas eye 8 Scars 129
Upon an appeal taken to the Court of Appeals...............c ec ee eens 129
Upon appeal to the Supreme Court from an inferior court.............. 131
Upon an appeal to the General Term of the same court................. 132
Upon appeal to the Common Pleas..........cccs cee ce ere eee e ees eeee 133
Upon appeal to the County Court.......... ..... Bis, ds dyers ents ty ere aybleua etme 134

Section 5. Transmission of papers to the appellate court......... Rid. Wonders tara 135

Section 6. When questions for review must be presented by a case.......... 137

Section 7. Time within which a case must be made and served.............. 138
Extension of time to make @ CASC...... ccc cece cette n eee e eee enenes 140

Section 8. Requisites of the case or bill of exceptions............0.... ee eee 141
In peneral cece csccwesaws de0s 395s saaans Ueaeeeeeaw eames EEE KS oases 141
Upon appeal to the Court of Appeals........... cc ee cece scence eee e eens 146

Section 9. Serving amendment and notice of settlement...............00000- 148
Serving amendments......... seeseeerevae « ns RAY elder amo maMMIaa NAS 148
Giving notice of scttlement 0.0... ..... cece cee eee cece teen ee eeeeee 149

Section 10. Settlement of the case or exceptions. ......ssesersasereeccee ace 149
x Taste oF ContTENTS.

Appeals in general (Continued), Page
By whom the case must be settled...........-0006 ivan cade iwseevscaceey 149
Proceedings upon the settlement............0ccesaeecerceaeeee sane 150

Section 11. Filing the case or exceptions....... Manin caiee <a Seees ss .-- 152

Section 12, Points............... ie iiars eaabeaieionstaee ian BUG SEE AT ie Fea . 153

Section 13. Printing papers used on the appeal, and serving and filing printed

COPIES ss... wee aaes Sesbuanainteasn RiSiseiel Soudee aeaseh cata oe. 155
ARTICLE X.
PREFERENCE OF CAUSES ON THE CALENDAR.

Section 1. Order in which causes will be preferred........ aT SSN om EA 156
Certain actions by the people............. cece cece eee ee ee tree eneeeees 156
Certiorari to review assessments.............. istengaiaeainz, etecciarses Sassd apnea 156
Civil actions. .........0esccvseeceeee shosoieravessepiaersitienadreeasid sjncaemaud oaks S/o 156

Section 2. Proceedings to obtain a preference..............0eeeeeee Sioa ees 159

ARTICLE XI.

INTRODUCTION OF EVIDENCE UPON APPEAL.

Section 1. In what cases evidence may be received upon appeal......... ... 161

ARTICLE XII.

AMENDMENT ON APPEAL,

Section 1. General provisions of the Code of Civil Procedure......... Scat, 164
Section 2. Amendment of pleadings on appeal ....... esas se Seiten igestss 166
Section 3. Amendment of orders........... 0... cece eee eee eee Seine ahaa 170
Section 4, Amendment of the case on appeal ..........66 ce ece ee eee eee eee 171

Upon appeal from another court........... Ried BS CN he eau Binet 171

ARTICLE XIII.
GENERAL PRINCIPLES GOVERNING THE DECISION OF APPEALS.

Section 1. Presumptions in favor of the judgment or order appealed from.... 173

Appellant must SHOW error... . 2. . cece cece ence cece cee eee eee eens 178
Presumptions in support of findings..... WERE AG Atak Farad eoniesciae Saunt 174
Section 2. Error in receiving or rejecting evidence...............00ceeeee ae 175
Upon appeal taken from a Surrogate’s Court........... 0 ccc cece eee ee 178
Insufficiency of objections to evidence............ ada dig aeserec abt arnlbet ws 179
“Section 8. Review of determinativns as to the weight or effect of evidence.. 180
Section 4. Error in charging or refusing tu charge the jury................ . 181
Insufficient requests...............05 siaectesee sia piahd Ceres ae anne atenaetasiong 183
Insufficient exceptions to the charge or refusal to charge................ 183
Section 5. Error in taking or refusing to take the case from the jury........ 185

Section 9. Objections not taken upon the trial......... 0... cc ceeeceeeeceees 188
TasLe or CoNnTENTS. xi

Appeal in general (Continued). Page
ARTICLE XIV.

JUDGMENT OR ORDER ON APPEAL AND PROCREDINGS THEREUNDER.

Section 1. General power of appellate courts............cseceeeeeeeeeeeees 189
Section 2. Proceedings-where the judgment or order appealed from is affirmed
OF MO fled 24 saniwtiereaseaecweNecncinnes esses $8184 daira eno 190
ARTICLE XV.
RESTITUTION.

Section 1. When thecourt may direct restitution..........00scceecsereeees 191
Upon appeals generally.......... see e cece cece rece eee cosceeceesceens 191
Upon appeals from Justice’s Court....... 2... cece cece ee reece eee eeeees 192
In summary proceedings. ..........0. cece cece ccc eet eee ee ene ee ee ese 193

Section 2. Proceedings to obtain restitution............ccceceseeseeees ees 194

CHAPTER II.
Appeal to the Court of Appeals.

ARTICLE I.
JURISDICTION OF THE COURT OF APPEALS.

Section 1. Provisions of the Code of Civil Procedure..............0ceceeeee 196
Section 2. Nature of the jurisdiction conferred by the Code................ 198
Review of actual determinations of the General Term..... ............. 198
Detaultsics vcctor cers 2868 TA Kea et tk ARON ARSR MO OOO RA Os F558 SRI 201
Section 3. Limitation as to the amount in controversy.............06 ceeee 202
Mode of estimating the amount of the matter in controversy............ 202
Actions or special proceedings affecting the title to real property......... 206
Appeals from a final award of the Board of Claims...................4. 207
Constitutionality of limitations as to amount............6 cee ee ee eee eee 207

Section 4. Limitations of appeals in actions commenced in certain inferior
COUTTS iia cia aS ees chen aa Gene aa Gar EEK ghee eee eee nas was 208
Section 5. Jurisdiction upon appeals from final judgments................. 209
An actual judgment indispensable. ........ 0.6... cece eee eee eee tee ees 209
What judgments are finals s «cc: ssionmsawcawecs news ca cee eseueee seas wa 210
Interlocutory judgments and intermediate orders..............00seeeeee 211
Section 6. Review of interlocutory judgments by the Court of Appeals...... 212
Section 7. Jurisdiction on appeal from orders............0. 02 eee ee eee eee 214
What orders affect a substantial right..... 00.0.0 c cece eee ene weno ene 215
Orders not affecting a substantial right. 0.0.0.0... cece ce eee eee eee 220
Orders not appealable because resting in discretion.............-..e ecco 221
Orders determining the action and preventing final judgment............ 232
Orders granting or refusing a new trial... 1... cece eee cence ene eaeees 233
Orders striking out a pleading or part of a pleading................-.4.. 235
Orders deciding an interlocutory application or question of practice... .. 236
Orders determining the constitutionality of a statute..........66 ce eee 236
Orders made upon summary application after judgment..............+. 237

Final orders in special proceedings........... dbaachae Aad Sieg bie batetsunaie Bre 237
xii Taste or Contents.

Appeal to the Court of Appeals (Continued). Page
Orders made conclusive and non-appealable by statute.......... veseeeee 239
Jurisdiction as to the award of costs...-.... ie Nisientaate eis Hed Pee eewuas .. 240

ARTICLE II.

PROCEEDINGS TO TAKE AND PERFECT THE APPEAL AND TO STAY THE EXECUTION
OF THE JUDGMENT OR ORDER.

Section 1. Procuring a certificate or order allowing the appeal.............. 241
Section 2, Time within which the appeal must be taken................005 244
Section 8. Preparing and serving a notice of oe aciotave ialuiahOOieeeerOane suas 245
Form and contents of the notice.. a iapoibyeh icles sintaveiaispieig ow eaunn sigan. C40
Danger of an appeal from an artic ‘eranting a new ; trial. die aiivie Graldalewnrasnay 246
Service of the notice. ........ 6... ee eee ces By Snwte oie aelensib pats e abieTats Saleiesand 7
Section 4. Case on appeal from award of the Board’ of Claims........ dashes 248
Section 5. Security to perfect the appeal............. 6.2. cee ee eee eee 249
Section 6. Staying the execution of the judgment or order appealed from.... 251
When execution stayed by the notice of appeal............ onmeneseenae 251
The nature of security required to stay execution...................004. 251
The form and contents of the undertaking. ............ 0. cece cece eee 252
Filing undertaking and serving copy..... ... sbtam tae heds Seay Rea 253
Limiting the amount of security. ........ 0... cece ee eee eee aia % Ea ecnea ies 253
Section 7. Correcting defects in preliminary proceedings.............-+.... 254
ARTICLE ITI. 254

PROCEEDINGS BY THE APPELLANT AFTER APPEAL PERFECTED AND
BEFORE ARGUMENT.

Section 1. Transmission of the return to the appellate court............ wees 254
Section 2. The appeal-book or case... .. ccc eee ee ee eee eee ce eee eee ee eens 256
Contents of the appeal-book...... fo uidtetiG Vie woea saan dow ek Some 256
Printing, the case or appeal-book......... Sse ERNE Y SeetGree ys mete cu 257
Serving printed copies of the appeal-book.......... 06... c cece eee eee 257
Section 8. Making. printing and serving points................08 ce eeee eee 258
Section 4. Placing the cause on the calendar and bringing it to a hearing.... 259
Serving and filing a notice of argument..... 66... cece e eee eee ees 259
Bringing on the appeal as a motion............... ieee Sao ASE 260
Preferred causcs..............- ibm De 4 ReRNeR!. sum eaeNeees 260
Setting down cause for a day certain... 1.6... ee ee cece eee ee eee aa aie 260
Exchanging causes. .........0cceeeeeeeeeeeeee tenes Sete eeu cecaye' eas 201
Striking cause from calendar ............ cece ee cece eee eens einer saneee 262
Section 5. Restoring a dismissed appeal............00005 SRR GONG REAR OEE 262

ARTICLE IV.

PROCEEDINGS BY THE RESPONDENT BETWEEN SERVICE OF THE NOTICE OF APPEAL

; AND ARGUMENT.

Section 1. Exceptions to the sureties in the plaintiff’s undertaking........ . 264
Section 2. Dismissal of appeal for failure to file the return........ eee arena 266
Section 8. Dismissal of the appeal for failure to serve the case..........,... 267
Taste or Conrents. xili

Appeal to the Court of Appeals (Continued). Page
Section 4, Motion for a further return..........+ ijalaies eae. aie <je ate vianevearieians 268
Section 5. Motion to amend or correct the return...... isis Sie epeleeleiea Gis sews Wks 268
Section 6. Cross-appeal.......-. cece eeeee Adee ee eeeeeseeseeseesesteneeenes 269
Section 7. Preparing and printing points.. ... sea Wa NGG eG SE Sees sere sare ++ 270
Section 8. Bringing on the argument...........cceecececeseeeere iebee sores 270
ARTICLE VY.
PROCEEDINGS ON THE HEARING.

Section 1. General practice on the call of the calendar.............cee0¢ wie SOUL
Passed causes.......c.. ccs cece cscs eeeeaee Var la ea hire atare te srs ieia o's Stan earcns 271
Submission without argument. .......... ccc cee eee e ec cee eens He sieenee 271
"THE ArQUMENE 45 essspesacecaetyassiowisienk: sefeis'd ¥ 8a Ses 8's 4. alensie sre dalslermmiesirenie 27k
Defaults siciies acaise des saresiinnsaiicondesisreamoaeutie dome eeaassa ks die weda aes 272

ARTICLE VI.

QuEsTIONS REVIEWABLE ON THE APPEAL,

Section 1. Tn Gener ala oo scsi sie soanuse sai easees Gensou sb uisina ties awide aleeaeaete 273
Questions not passed upon by the General Term.............2562 eeeee 273
Questions not presented by exception......... cc cee cece cece ence eee ceees 276
Mere abstract questions not reviewed. .... cc cece cece eee eee eee eees 276

Section 2. Upon appeal from a final judgment, after affirmance of an interloc-

utory judgment, or denial of a new trial............. 0.0... 277

Section 8. When the review may include questions of fact.................. 278
Un genetal Lec seco sw weed aes hes sites HOA G OAs Gee BE SEAS Sa Ree T Se aaa 278
Where the trial was by the court or by a referee ............ Jiteudepiadsiacks 278
When the trial was by Jury... 2... cece cece ce eee cent eee e ee ee sees 281
Where the trial was before a surrogate....... cece eee e ee eee eee eee eens 283
Upon appeal from an order....... Sub aA oiak haw ble Widloass diesels ae gs Gules 283

ARTICLE VII.

PRINCIPLES GOVERNING THE DECISION OF THE APPEAL,

Section 1, General rWles..cscivccxgeise sass eee 8462 34 eae te Pee wndiegneneoed 285
« Error must be affirmatively shown........... Ledutvtchsnsig foGo SateteuneaaeaeneaNorrs 285
Decision may be sustained on any ground appearing in the record....... 285
Disregard of harmless errors. ........ 0... ce eee ee cee eee nee e eee ew ieee 286
Inéonsistent ndings) wis cece decease Ohearewieaneeagey ign s 286
Section 2. Determination of questions of fact. .... 0... eee ec cece cece ee ee eee 2387
Section 3. Conclusions of law unsupported by finding of facts.............. 288
Section 4. Findings of fact unsupported by evidence................008 eee 289
Secticn 5. Denial of request for findings of law or fact.. ..............004. 291

Section 6. Refusal of the court below to act for supposed want of power..... 292
Section 7. Erroneous or unauthorized judgments of the General Term....... 294
xiv TasLe or ConTENTs.

Appeal to the Court of Appeals (Continued). Page
ARTICLE VIII.

JUDGMENT AND REMITTITUR.

Section 1. The judgment or order......-.....eeeceececee ais biteceete ee Gaubeas 295
Power of the COUrt........ ccc cece cece e cece tenn een eee se eeeeneeeeneee 295
Judgment absolute. .......... csc e cee eee ene ence ence cence eseeeeeeees 295

Section 2. The remittitur....... 0... cece eee en cece eet e eens cere eeareeeseens 296
Form and contents.........- cc cccc ccc c ence cc nee concn erecnessseneneee 296
Staying the filing of the remittitur.......... ccc cece eee e eee c er eeeeees 297
When the Court of Appeals loses jurisdiction. ..........s.ssse--0 coves 297
Amending remittitur.............. oat njavatg aust sialinieaver vimeaiol a akevaleldiniereiusiews 297

Section 3. Judgment below on the remittitur....... sidhdsainiinzeaibin oie'b. ore sisleca ks 298

ARTICLE IX.
RE-ARGUMENT.

Section 1. Application for a re-argument.......... aisisiais siaiassiete adesiinewwewie . 299

CHAPTER III.
Appeals to the General Term of the same court.

ARTICLE I.
JURISDICTION OF THE GENERAL TERM.
Section 1. General nature of the jurisdiction. .......... 2.2 ..62 cose eee e ones 301
Section 2. Jurisdiction upon appeal from a final judgment................. 302
Judgment pursuant to report or decision............. sce eeneeeeeeeeee 303
Judgment upon a verdict...... 6... cece eee eect ee eee e eect ee ee eee eeeee 308
Section 8. Jurisdiction upon an appeal from an interlocutory judgment...... 305
Section 4. Jurisdiction upon appeals from orders... .............ce eee eeeee 304
Tn general i. sans 6 waive wise sinitn oid: eases ace oa wert wiad ea eueweuks vebens 304
The question of discretion. .........0 0. cece cece eee ee eee ence eee nees 306
Orders as to provisional remedies. ........... cee cece eect ee eee eee eees 307
Orders granting or refusing a new trial. 6.0.22... 0... cece eee e ene e eee 308
Orders involving some part of the merits......... 0... ccc eee eee eee eens 308
Orders affecting a substantial right... 0.0.2... cece ec eee eee eee 310
Orders determining the action and preventing the final judgment........ 310
Orders determining the unconstitutionality of a statute........... ..... 310
Orders made upon a summary application after judgment............... 811
Orders made out of Court......... ccc eee ec eee tence teen ne eeesenee 311
Orders made in special proceedings. ........ 2... ccc eee eee e cee eeeeceees 312
ARTICLE Il.
Takine THE APPEAL AND STAYING THE EXECUTION.
Section 1. Time within which to appeal............. cece cece eee eeneeeces 313
Section 2. Notice of appeal wa: siecccs cis, wae scseeeeeceso uses ebeee se séee sce 314

Section 8. Staying execution of judgment or order appealed from .......... 314
Taste or ConTENTS. XV

Appeals to the General Term (Continued).
ARTICLE ITI.

PROCEEDINGS AFTER APPEAL AND BEFORE ARGUMENT.

Page

Section 1,. Case and exceptions, and service of COpicS..........eecseeeeeees 815

Section 2. Printing papers on an appeal from an order.... ......e.eee.-ee 316
What papers: required ss. ss cs ses sdieaweranw eas swenwwene ease eee eden Sere 316
Printing: the Papers: sis si susc ss. esiensiion sees Gawd ea srasweeeiedeeti eee 316

Section 8. Making and printing points............. 0... ce eee ees eceeeeceees 316

Section 4. Note of issue and notice of argument.............0eeeeeeeeeeees 317
Contents of note of issue... 0... cee eee cee eee et eee eee eer e cena eens 317
Piling NOUGOE ISSUE ie: gees ose Vee ow o sss Oiehaa no srensiewiayeate Sul DO NRE sis's)cieien 319
Notice:of argument. sos. ssseine aise gaeeiseis cieewaeGeisine oe da Se ace vac eeecces 319

Section 5. Serving and filing papers.............. eee ce cece ee ceeeeee cence 820

Section 6. Motion to dismiss the appeal.............cecscceesconceeceeeee 321

Section 7. Obtaining a preference of the cause on the calendar...... ismaaas 322

ARTICLE IV.
THE CALENDAR AND CALENDAR PRACTICE.

Section 1. Calendar, how made up.......... cece cece cece eee eeereneseees 322

Section 2. Correcting the calendar. ..............0-ce eee ee ceeecececeeceees 324

Section 3. Striking causes from the calendar...........cceeeseccncceeveece 324

Section 4. Day calendars........ | aaieisind sake a adevnalaaia.s stored nde See e wees aes 326

Section 5. Reserving causes, etc.........2.2--seeeees sraiateinetnerss seeeereee OCT

ARTICLE V.
PROCEEDINGS ON THE HEARING.

Section 1. General practice on the call of the cause.............0.- 6 ees es - 328
FPurnishing™ papers. 04.5 06 si02s saves teewawaiwiea sa warn eter tau se eueee 328
Defaultscss oz ca isi steam eeeywarendawad tied Serle ceee encase atameds 330
Objections that proceedings are stayed............0..ccecaecececeeeeees 331

Section .2:. The argument. iiiisceccssecssenssaciiases sas sctsaseesansianna 331
Submission without argument........... cc ae cece ee eceeeeees dbaperslalanetele 832

ARTICLE VI.
QUESTIONS REVIEWABLE ON THE APPEAL,

Section 1. On appeal from judgment rendered on trial by the court or

TOLCHCO so s5.2)4 dais Leeiiewws: paaen tha sis Tak Tae eee eee eee «+ 332
Questions OF la Wisse se ee sx eois ig 5-8ia dese are seate eetesSaalesen cis -uais winced siesessbrelase wad 382
QUeSLIONS OF TACT si sj tieves-cae 08s E86 wG Sh ces aiiesranioaibeemneig ek Sore he Seen 334

Section 2. On appeal from judgment rendered on a verdict..........0.0000. 335
Qiiestions Of JAWS. 2s-ccccuassosaisane bk eRa 6 ado 4 FO WSronend wielkib eleweie oie dd ge 835
Section 8. Appeal from interlocutory judgment....... ea die Meee aemae cence 336
Section 4. On appeal from orders...... 22... ccc ccc nee e ec ee eee ceteeeceenee 337
Order granting or refusing a new trial.......... 00... cceeeeceeneceeeereee 337
Orders generally isco. wiaiceione ce x 2 syeee eles ses neiawelciwaeonwaw ews av e's res 6a 339

Review of orders on appeal from judgment.............. Vee eeneseassay 341
Xvi Taste or Contents.

' Appeals to the General Term (Continued).
ARTICLE VII.

PRINCIPLES GOVERNING THE DECISION OF THE APPEAL.

Page

Section 1. Erroneous rulings upon the trial.... ...... digg areas areieremern o. . 841

Section 2. Questions of fact.......... ccc cece nce e even ncneereesoresesenes 842
Where the trial was by the court or a refere@.............0eeceeeeeee ees 342
Where the trial was by jury..........c cece cree ereeeve arotase'cls isi reislentets’s 343

Section 3. Questions resting in discretion.... .. sale isle Wid Gator ail Daaisie Beiatele 345

ARTICLE VIII.
SUBMISSION OF A CONTROVERSY.

Section 1. Code provisions. ...........ccccceec sc ee ee ceeeeseeenees sp ecee 346

Bection 2, Parties... .....cccccecereccs cc cccc cee er ee ucceesecseseersesees 347

Section 3. What controversies may be submitted..... ....cceceeeseeeceeeee 347

Section 4. What questions may be considered.........cc ese e cece cece cee e ons 348

Section 5. Submission, hearing and determination.............. his ieenaaiss 349

ARTICLE IX.
JUDGMENT OR ORDER ON APPEAL.

Section 1. Affirmance..............eeeeeee jiexeaewae ees Sede deew eel wine -. 850
Of JUdE MEH csicasrediwennae aesreeenmeuniewied eee es es'9 ee dass wen ees 350
Affirmance! in partecccssicciwmcisooasnecseweabseweeaas vasa ces tox Sa ats ba 350
Affirmance as to some of the parties......... 0. cece cece eee cece eee e eens 351
OF OFdEr Ss 5 5665 608s ¥ Reds ass a ws Gs CORE RODE a le DARE DEGMS MEERA SEETS 352
Final judgment..... . eicowever cuyerenist esate MBSE See RRER REWER SSE 852

Section 2. Reversal oii cca ssn csvie oes cea aes neies ae serie eaiew ne eenwmewreus 352
Inserting grounds of reversal in the order. ..... cc ee ccee eee e eres neeeece 352
Granting’a new trial cs0s2is0e040%¢s00 deaeiv ow savin weveieseneus 352
Judgment: absolute. ss c.c.c sacs case wea vee ve ee su es eee eee sees ese Oe oe 353

Section 3. Modification. ........ 0... cece cece cece ence eee eee e nese teen eee 354
Rendering the judgment which should have been rendered below........ 354
Reducing the recovery... .. cc eee eee cece eee e ees sence nee eeneeres 355
Increasing the recovery ..........e.eeeee ones Siviai4ie aie lacie @ nei Akaraignanawies 356
Of OFdERS occa dee Sab ees ote chee ae ae wae SRG its Hoa oasl sis 356

Section 4 Entry: acids: sce wiaaawesssmrscesnine? wineedgaleepueewwals eee ced eotae awd 357
PUASMEDLTON 3.5560 ede sess aa ae De Aw eidde d Wes e, F andere ST Nee terscR TAOS 357
Filing judgment-roll and entering judgment or order.............eceees 357

ARTICLE X.
RE-aARGUMENT.
Section 1. When a re-argument will be granted or refused........... seceess BOG

Section 2. Proceedings to obtain a re-argument......... ere ee 360
Taste or Contents. xvii

CHAPTER IV.
Appeal to the Supreme Court from an inferior court.

ARTICLE I.

JURISDICTION.
Page
Section 1. From what court an appeal may be taken..........0eseeeeee anaes 361
Surrogate’s\ Courts... 04 cwoscnes avawdovwpawe seule as eae dee ceew sano y 361
The City Court:of Yonkers: «iccu: csstscsasiuioss oies ss cease seit ve ane 362
Section 2. What judgments of an inferior court may be reviewed............ 362
Interlocutory judgments and intermediate orders...........0.eeeseeeeee 364
Section 8. Appeals from orders made in actions. ............eeeeeee eee eeeee 364
Orders affecting a substantial right........ cee see e eee eee neon ee 365
DISCLEHONALY OFAEVS sors 5: wiiceinterassiacentsvevere acaierbiaceeinlalde vad 8 be ace wee Hee 365
Section 4, Appeals from orders made in special proceedings................. 366

ARTICLE II.

TAKING AND PERFECTING THE APPEAL, AND STAYING ExEcUTION.
Section 1. Time within which the appeal must be taken............ .....-. 367
Section 2. Mode of taking and perfecting the appeal.................eeeeee 368

Serving noticeiof appeale.. jtcacassiigneg wewssue waa Enee eye eeue ees xAe 368
Section 8. Staying execution of the judgment or order appealed from........ 369
Security to perfect the appeal... ..... 6. eee cece e eee cece ee eeee 369
Limiting or dispensing with security......... 0... c cece cece eee eee ees 371
ARTICLE III.
PROCEEDINGS BETWEEN Notice of APPEAL AND ARGUMENT.

Section 1. Curing defects in proceedings to perfect the appeal or to stay exe-
CULOM Si sieseisisudineiaye oaoh es ace ba gence Srdyp a cdrosbis.d-guendinuee weN AE Sanaa 372
Section 2. Transfer of papers to the appellate court... 2.0... .. eee eee eee 372
Section 3. Making, serving and settling a case.......... 0. ec c eee eee eens 378
Section: 4): Poms s.r cnn awsoninwdic ie: Ma tadiwat- aes ee eu use eyo nada ats 3873
Section 5. Printing the papers used on appeal. ...... ee eee cece eee eee 874
Section 6. Service of the papers or appeal-book.............. eee eee cee eee But
Section 7. Putting the cause on the calendar........... ce eee eee e cece e eee 874
Securing a preference on the calendar........... 0... e cece cece eee e es 374
Striking the cause from the calendar............ 0. cee eee ee eee eens 375
Section 8. Notice of argument.......... 6... cece eee cece cece eee e ee eeeees 375

ARTICLE IV.
Tue Hearine, DECISION AND JUDGMENT.

Section, Phe hearings... iii se esas wwnwonee oke dacmabacaivey evga de weie's 376
Section 2. Questions reviewable, and principles governing their determination. 376
Section 8, Judgment or order on appeal, and proceedings thereunder........ 379

B
XVili TasLe or ConTENTS.

CHAPTER V.
Appeal to the Supreme Court from the Surrogate’s Court.

ARTICLE I.
WHEN AN APPEAL IS AUTHORIZED.

Page
Section 1. Appealable decrees and orders..........06- cece ee eee cree eneneee 381
Decrees or orders upon Acfault... 00... . cc cece cece eee nec e ec ceenenene 381
Ex parte orders..... nV B lobia ecuenatacnn a elaras asians ie eraie Silsals 6 916 Gin sie Stay Seca gas 381
Orders affecting a substantial right....... colds Mangas ane Saalneekthess 382

ARTICLE II.

PARTIES TO THE APPEAL,

Section 1. Who may appeal........... cece cece cee te een ece eee eee eneenenees 382
Section 2. Who must be made parties ........ cece eee eee eee ence tee eeee 383
Section 3. Designation of the parties in the title.......... cece eee cece ee eeeee 383

ARTICLE III.

Move oF TAKING AND PERFECTING THE APPEAL.

Section 1. Service of a notice of appeal........... cece eect e cece renee eens 384
Section 2. Time within which the appeal must be taken...............-..4- 385
Section 3. Security to perfect the appeal. ........... cece ee eee ee eee eee 385
General Tule: 4 duis s cacnsien dhantaawee seinen dtwaeask melee kee ve eee ES 385
When security is not required to perfect the appeal......... .-........- 386
Subsequent insolvency of surety... 0.0.02... cle cece cece eee ee eee 387
Exceptions to sureties in Surrogate’s Court of New York............... 387
Section 4. Curing defects in proceedings to take the appeal...........-..... 388

ARTICLE IV.
Stay oF EXECUTION OF THE DECREE OR ORDER.

Section 1. Staying decree for payment, &c. of money, or delivery of property 888

Section 2. Staying order granting leave to issue execution.................. 289
Section 8. Staying decree on order directing commitment................ .. 390
Section 4. Effect of an appeal from a decree for probate and granting let-
COTS oc nisnciadiaeie saan seats iaremn nein Od loanainuana ideale yoinera dade ease 6 ele ged 391
Section 5. Effect of an appeal from a decree revoking probate or granting
TOUTE TSS wioresigieecciese oes JS owe cots aw Mae Sigrs we HSMN Rees wmue eeu a RS Sauces 391
Section 6. When a perfected uppeal effects a stay ................0 00s wee. 892
Section 7. Correcting defects in proceedings to obtain a stay............... 393
Section 8. Inureased security on motion of respondent........2-- cee ec ee ees 393
ARTICLE V.

PROCEEDINGS AFTER APPEAL AND BEFORE ARGUMENT,

Section 1. Making a case containing exceptionS..............c0ceeeeee eves 394
Section 2, Bringing in or substituting parties...............0006 duende saat 395
TaRLE or Contents. xix

Appeal to Supreme Court from Surrogate’s Court (Continued). Page
Section 8. Printing, serving, and filing papers to be used on the appeal...... 396
Section 4. Filing note of issue and serving notice of argument.............. 396
ARTICLE VI.
HEARING AND PROCEEDINGS ON THE APPEAL, AND JUDGMENT OR ORDER
THEREON.
Section.1.. In. generale iv ois i ssisisis s ansivowsiawaaries cial swdiee ds o6ie eis o 5h wens 397
Section 2. Questions reviewable on the appeal.........ccee eee ece cere ences 397
Section 3. Principles governing the decision of appeal................00655 399
Section 4, Judgment or order on the appeal..............see eevee sete e ees 400

CHAPTER VI.
Appeal to the Court of Common Pleas from the City Court of New York.

ARTICLE I.
JURISDICTION OF THE APPELLATE COURT.
Section 1. General statutory provisionS.......... cece eee eee eee eee e eens 402
Section 2. On appeal from a judgment........... cece cece ee cece ee ere eee 403
Section 8. Orders granting a new trial... .... ccc cece eee eee ee erences 404
Section 4, On appeal from orders generally........cceeeceeeeee waeeeeeeee 404

ARTICLE II.
TAKING AND PERFECTING THE APPEAL AND STAYING EXECUTION.

Section 1. Taking and perfecting the appeal............ 2... cece ce eeereeeee 406
Section 2. Staying the execution of the judgment or order.............-..4. 407
ARTICLE IIT.

PROCEEDINGS BETWEEN Notice OF APPEAL AND ARGUMENT.

Section 1. Procuring the return from the court below..............eeeeeee 408
Section 2. Serving notice of argument and filing note of issue............... 409
Section 8. Printing and serving the papers on which the appeal is to be heard. 410

ARTICLE IV.
THE ARGUMENT, DECISION AND JUDGMENT ON APPEAL.
Section 1.5 The aream entyooiccs wie weisiecaiae ease o-ahe dete « one alee deves arsed Welere 410
Section 2. Questions reviewed and principles governing the decision......... 411

Section 3. The judgment and its enforcement.......... bieicte se. csete’sleinieiee sieleesis 412
RX TasLe or ConrTeENTs.

CHAPTER VII.
Appeal to the County Court.

ARTICLE I.
APPELLATE JURISDICTION.

Page
Section 1. Judgment rendered by a justice of the peace...... fie id Gad Riate Fie foie elec 414
Section 2. Judgment and orders of certain city courts.... ......ssseeees eoee 415
City Court of AUDUID 0.0... ccc eee cece eee n ence enc eeeeceeeeeress 415
The Municipal Court of the city of Rochester..........6 sees cecseecee 415
City Court of Albany. ....... cccccecccec cence eee ee eeeeeenecenaeenes 415
City Court of Yonkers. ........ceccceecccccsccccncsveesasccsccsessces 416
City Court of Utica ..... ccc cece ee cece cecnescenccenecsenecnsseesoens 417
Section 8. Orders made in special proceedings..........ccceeeceeeeeeeeenes 417
Summary proceedings.......cccesecncccececececcesseceeccnceceteeeees 417
Proceedings against animals straying. .........cs.00 ceeesecceeeerscees 417

ARTICLE II.

‘TAKING AND PERFECTING THE APPEAL, AND STAYING EXECUTION.
Section 1. Parties to the appeal........... cece cece cece cece reer eeseeeeee 418
Section 2. Time within which the appeal must be taken.............605 cee 419
Section 3. Notice of appeal. ........ cece ec cee eee cence eee eeees a guisne: lasts 420
Section 4. Serving notice of appeal... 2... cc. eee eee cee e ence er ce enace 421
Section 5. Payment of the costs in the judgment and the fee for the return... 422
Section 6. Security to perfect an appeal, or to stay exccution................ 423

Form and contents of the undertaking. ............. cece ewes eee cee 423
Approval of the undertaking. ......... 0... ccc cece cece cece rece eee 424
Service and filing of the undertaking. ........ 0... ese cece eee seeceeeeeee 425
Section 7. Security on appeal from an order in a special proceeding......... 425
SUMMIATY PLOCECULOLS js. sieies: sieves v's sade wee oee Oy’ ese 8 GE we wee orsigs Haeers 425
Staying special proceedings against estrayS........... 6. cence eee eee es 426
Section 8. When the appellant may demand a new trial in the County Court. 428
Section 9. Amendment of proceedings to take an appeal..............00.06- 429
ARTICLE III.
PROCEEDINGS BETWEEN Notice or APPEAL AND ARGUMENT.
Section 1. Exception to plaintiff’s sureties and justification.................. 429
Section 2. Offers to compromise on appeal for a new trial ................. 430
Section 3. Stipulation by respondent for reversal....... 6... cece ee eee eee ee 4382
Section 4. Return upon appeal ....... 6... cee cece cence eee eee eeeneee 433
Contents of the returns cai is. s0cca ses nen sonia des Macedon ecw eww 433
Compelling the return, or a further return. ...... 0... ce eee eee eee eee 433
Substitute forthe returDs <i siccdaa casi ss hes sea vies seessans Hews we eews 434
Aiding or contradicting the return............ 00. c ee cece ence eee eee 435
Section 5. Respondent’s remedy where a new trial is improperly demanded... 486
Section 6. Motion to amend the pleadings................ ccc ce eese ee eeeees 437

Section 7, Filing note of issue, and serving a notice of trial or argument..... 488
TasLe or Contents. xxi

Appeals to the County Court (Continued). Page
Where a new trial is to be had in the appellate court........ ey ei eiateusiouataues 438
Where a new trial cannot be had in the appellate court............ seeee 488

Section 8. Presenting errors in fact to the appellate court ...............06. 439

Section 9. Service of affidavits excusing default..........0-.cececceceeseees 441

Section 10. Points and papers for the COUTT........... cs cee eee enceeceeerees 442

ARTICLE IV.
HEARING AND DETERMINATION OF THE APPEAL,

Section 1. New trial in the appellate court........... cc ce cece eceeeeceescees 443

Section 2. Hearing on an appeal upon questions of law................ aoe 445

Section 3. Questions reviewed on an appeal taken upon questions of law..... 447
Objections not taken DelOW......... ces eee cece eee e ence teen ete eees 447
Provisional remedies..........ccccceece cree ees eeee svete eeenneeees tee 448
QuiestiONs OF facts, ..6..cdaeewsslscigeas sawed ong vases ventievuewsa ceewses > 448

= FPACtsi@SStiMed TO/OXISE ooseie cassie a dete a oisieve niara al ornin GLa area vi sia ee Sew ee Giwiars 449
Matters resting in the discretion of the court below........ .......2005 449
Amendment of pleaGings...........0.0:cccecceeecccenneeveseoesvesres 449

Section 4. Principles governing the decision of the appeal.................. 450

Section 5. Entry of judgment............... er@igey a sa 8 4 8.085 4 Seawater sauce 453

Section 6. Restitution upon reversal....,.... cee cece cece cece eee ccce ence .. 454

CHAPTER VIII.
Appeal to the Common Pleas from a judgment of a District Court of the city of

New York.
ARTICLE I.
JURISDICTION AND GENERAL PRACTICE.
Section 1. Nature and scope of the appeal.......... 0... ccc ccceccecscceerce 455
Section 2. Mode of taking and perfecting the appeal................0 eee. 456
Section 3. Return on appeal........... ccc cece eee cece eect cecceenceceeres 457
Section 4. Stipulation for a reversal. ............. ccc cece cece cs eeeesecneces 459
Section 5. Notice of argument and note of issue..............0ccecceeeeeee 459
Section.6.. POMts 00:5 4064 ecw celsasiaeuulare 6 eee bee's sa ooye aa 8 ened aoa Meeans 460
Section? THe areunient: siescscecewguwenee wou ve dae ves Gave saua cake: are 460
Section 8. Judgment on appeal...........ccccecccceceecs eeeeas es Bek Sera 461

CHAPTER IX.
Appeals from the City Court of Yonkers.

ARTICLE I.
SPECIAL STATUTORY PROVISIONS.
Section 1. To what court the appeal must be taken. ...........see00- coceeees 462
Section 2. Appealable orders............. cee ee eencccceeeees Wiese se euly eea's 463
Section 3. Mode of taking and perfecting the appeal........ eben ss 588 oo. 464
Section 4. Time within which the appeal must be taken..... Bie See BG Kick esas 465

Section 5. Transmission of papers to the appellate court........ aledhbichane: oc dna 465
Xxil Tasiy or ConrTeENTS.

Appeals from City Court of Yonkers (Continued). Page
Section 6. Staying proceedings on the appeal... .s..ecescceceneceeveecs weees 465
Section 7. Hearing and judgment. .......... ccc cee e ee cence eee eeeeeeeeenes 466
Section 8. Subsequent appeals, ......... cece cece eee e eee eeetee seen eeeneees 466
Section 9. Costs on appeals........ cc sees ecebeveseveee Sips eae aieieraseealsre’e 467

CHAPTER X.
Costs on appeal.

ARTICLE I.
Wo ENTITLED To Costs.
Section 1. Costs of course to prevailing party........... Se ee Ce ee 468
Section 2. When neither party entitled to Costs. ..........cccceeceeseneeeece 478
Section 8. When costs are in the discretion of the court...........0eeceeeeee 474
Must HOA WATMER. 6 5.550 cave beiay ase Gnas: Dosh coves Wi Mereimie TE NTR ew AES F 476
Mode of exercising the discretionary power...........+-seeeceeeeeveees 476
Section 4. Ultimate right to costs after successive appeals..........++.-++++ 477
Where costs follow, as of course............000. isfe sive tu sro yesecoreiese Sisoresonss 477
Tiny OGhGi; CASeS apse 3 seis oretie seo are ear ee 46 ko Sie als ie ate ww sioy a oun er oevemrerlale se 479
Section 5. Separate bills of COStS.. 0.20. cece cece cece teen cn cereeeeseenes 483

ARTICLE II.

Sums ALLOWED As Costs AND DISBURSEMENTS.

Section 1. Upon appeal to the Court of Appeals...........seeeeeerseenee oe 485
Section 2. Costs on appeal to the General Term, etc........... ceeeceeeeeee 486
Section 8. Costs on appeal to the County Court................06. Gaara ays 488
Where a new trial is not had in the appellate court ..........00.eeeeeee 488
Where a new trial is had in the appellate court.......-. cece cece eee eens 488
Section 4. Costs on appeal to the Common Pleas from a District Court.. .... 489
Section 5. Double or increased costs 2.0.0.0... cece eee eee te tere eee eeeee 489
Section 6. Disbursements: < cis. .s..cc ie ceeae ew eas Cav ee eee de bee ee eee aes 491
ImsSeneral isciysee Ss te ewgnes ss ew hehe het enone eeng estas wala Sane ate ohers 491
Upon appeal to the County Court..... 2... cece cece e nee e tence nee eees ». 491
Upon an appeal to the Common Pleas............. cece cece cece ene enes 492
Printing the appeal-book... 1.0... ccc cece cece sence ee ee eee ee eee eececs 492
Olerk'’s fees; Clesicanasgyeie sige os ee cais Saisie S stapeleordls Rents seis aedeaeeriocaeatag 493

ARTICLE III.

TAXATION OF Costs.

Section 1. By whom costs are to be taxed........ceceeeeeceeenes siden «. 494
Section 2. Notice of taxation or re-taxation.......... ccc cece wesc ecco ee ees 494
Section 8. Proceedings on taxation..........cc.ceseececeeeeeuee waives eos 495

Section 4. Review of taxation ............. nebeanere sees esevearewasaee 496
TasLe or ConTENTS XXlil

CHAPTER XI.

Motion for a new trial.

ARTICLE I.

APPLICATION AT THE TRIAL TERM.
Page
Section 1. Whena motion fora new trial on the minutes is the proper remedy. 498

Section 2. Practice on a motion for new trial on the minutes.............6.. 501
Section 3. Principles governing the decision of the motion................. 502
Verdict contrary to evidence, or against the weight of evidence.......... 502
Verdict contrary to instruction. 20.0... . ccc cece eee etre tere een ee eens 505
Excessive or insufficient damages........cceeceececeeeeeeecee seeeeeers 505
Erroneous admission or exclusion of evidence. .........6. ce cece eee eeee 506
Where specific questions of fact have been submitted to a jury.......... 506
Misjoinder of partieS.........csccscee ener ee tees ese neeenereeees eaees 507
Where no exceptions were taken upon the trial............ ec eee eee e ee 507
Terms imposed in granting the MOtION.........66 cede eee e eee e eens 508
COS EB a sree mectiey acvete wloiaaengh gupntuon tus iio ninieis ae Aim eves OA MS eoee ta aasiand nai 508
FRG CATID Gs esse sa nc’ s eons. suede ee ashesis oars Wa ded wae ates Dek dae Sen eae aesren 509
Section 4. Motion that exceptions be heard at General Term................ 509
Outlines of procedure......... ccc cece cence cece ene teen eee e ne eeenees 509
The application to the trial judge. ......... ccc cece cece eee ee ee eneneees 510
Decision:of. the: motloms os <5. ee eise csisig's ennisie gia ee ecaiswweiiena te gee cies a's 511
ARTICLE II.
Motion at GENERAL TERM FoR A NEw TRIAL.
Section 1. When such motion is authorized....... 0... ccc cece eee eee e eee eee 512
Section 2. Proceedings before argument.......... cece seeeeeeenaeccseeeces 514
Making 8:C0S¢o.c.cccdinaamaniwasc eaace ads 44 swan actin aad a eee aneeeialsaunee 514
Stay of Proceedings. cscccigicsic: sinranivisisacaealaaie de cod aed a Hae eisai nmgidargenee 515
Noticing the motion for hearing. ............ cc ceee eee eee e eee eeeeees 516
Papers and points for the court and adverse party . nner mah ty atituddelae 516
Note Of isstles.s< <aiss wher deacwesaGesewes ies Sore k se ee R ARE eRe 517
Section 8. Proceedings on the argument. ....... 2... sec e ccc e erence cece eeeee 517
Section 4. Principles governing the decision of the motion.................. 517
Section 5. Costs...... deed ueshteie eda ay SaSY Sex VENT SETA TST TARA RARER aatiecdive 518
ARTICLE III.
MotTION AT THE SPECIAL TERM FOR A NEw TRIAL.
Section 1. When such motion is authorized......... 0... cece ee ee eee e ne ees 519
Section 2. When and at what term the motion may be made......,......... 521
New trial of the action... <a... sesseunieoston vee xie gerd yanccs eeeN ewan 521
New trial or hearing of specific questions of fact..............00ce eee ee 522
Section 8. The motion papers......... cece e cece een ee eee een ee ee eee 523
Section 4. Motion for a new trial on the ground of newly discovered evidence. 524
Section 5. Motion for a new trial on the ground of surprise............eee0s 530
Section 6. For matters pertaining to the jury... © ccs eeeee eee eeeeeeeeens 536

Improper interference with the jury........6.5. 6 sees ‘area aN SaraMaons 5386
xxiv Taste or Contents.

Motion for new trial (Continued). Page
Communications between the court and jury.......c.eeeeceereeeeeeeees 5387
Compelling an agreement of the jury... .... cc cece cece cect cree e ee eeees 538
Disqualification. Of JUPOR: .scc< scsccs sieve seca sieieie aieeiaine 0.b:4e:9 winiainveldie'e wid Honore 8 539
Misconduct of the jury....... ccc cece eee cence cece coerce eeeeeeneceree 540
ATH a Vits OF FUTONS. sco. 5:5) o:e:0:5:a\elerersie:aoiotalnaieles cca inp a ioju saison aso ord inso say6ld ance. 028 548

Section 7. Error generally.......0..cccec cece ececcn ene ce eeeeseceereeceees 543
Erroneous charge to the jury... ...... cece cece eee cece cece ee ecceeceaee 548
Error in receiving or rejecting evidence. ...........c cece ee cere ee eeeeees 543
Error in granting or refusing a non-Suit................- Pete ue eece sos 544

Section 8. New trial in ejectment......... ccc cece cece eect eee e ee eneeee 544

Section 9. CostS........c:ee0 ceeeeeees HAG aGie to weeOeMbe eS eeReetase 546

APPENDIX OF ForMS..... eaasetes apbvaececs Siaide bias Sipleve deb a-! Rprareina eters erea-arecee) 1049
TABLE OF CODE CITATIONS.

Section Page
Gscastensmnwanras calaisie aie oiler eie noises %
1%,

   

    
 

 

5. chet
MG) cscciuiecice 2s euwncsouccnvex ees 539
190... 24, 159, 197, 209, 211, 213, 214, 238,
234, 236, 237, 241, 244, 811
191.... 64, 198, 202,206, 208, 283, 242, 248,
245, 246, 205
AGB Sedalia actin eieced Aceei tesco 260
NOB scrccsauis’ saietiecedtomner eas dace 158
194 Sacer cre ucnencerdies 24, 266, 268, 295, 206
196... res Cob ere aSeineciyte 28, 259
197... see 28
NOB 2s gcacataiotubeeeacu tics doeeas Set 238
MIDs <F ocacand one saacianmecmanecenaneren 25
221. 25
225... 28
227... 26
228... 25
230... 25
234... wee 26
BAG os stiecich, we cath wlereenaneneame rsciocia 149
AB ic sectesiw inion dens . 817, 329
OBO Ss srnsccan decir tectmommdnaeamaceitenes 28
281... a)
284... . 8
285... . 8
OB coceinc ince arose eh ate salut mecca tes 28
ORB atavseacncaeh seacmeaet yxsusensaty ac eey 28
289... . B
201... . 8
. 8
301 a)
. 8
. 28
. 8
. 8
. 29
30
29
. 2
. 29
487
al
198
38

 

Section Page

 

TRB cccceverscccccsccvevacssesseccees 165, 269

, 61, 101, 819, 488, 495
.+++ 250, 886, 889, 390

 

[xxv]
xxvi Taste or Cops Crrations.

    

 
  

 

  
   
 
  

Section Page Section Page
ORT ve aiasrinateje a sestajerareiaateianse is, area, 488 AB 14 es) 9 sas. sarees ok 70, 91, 249, 251, 258, 464
992 "s, “124, 126, 128, 333 1815,...129, 130, 131, 185, 158, 254, 255, 372,

OOS shawineniweaan + Fs seednenes 128, 279, 388, 334 3878, 408, 409, 493
DOS ccssie sea as Sores whe 124, 128, 189, 833, 515 1816..49, 50, 63, 211, 244, 245, 341, 364, 367,
ee tah by PANS cicgeacseseneguge uit wk oR ORHAN 127 368, 376
DOG s cccchadan varias neie Gish GicnoRieanseall ne Moen 3 1310 a2 cgiueprcnien 189, 245, 205, 350, 251, 368, 413
997.... 128, 187-139, 124, 141, 145, Yt. 149, LEG: ccieo oe cncmeindaaes ate: canaaen 48, 210, 403
151, 152, 314, 815, 524 1819.
DOB cities tiles kt awe 124, 183, 159, 501, 524
GOD sss ssa via dia sakestarcvanstsse > 1388, 498, 499, 501, 505 1321
LOUD iste. weawcdepy dane as aut 499, 509, 512, 516. 521 1323
513, 515, 522 1324
beam sewisevawaaas va veins adres 408, b20; 582 1325

LOO). ass. ceaen tian 499, 500, 507, 509, 512, 520, 522 1326
Bet May oe nagniers/anwmicnateatie 520, 522, 623
191, 511, 512, 515, 521. 535

edo +71, 82, 94, 99, 249, 250, 253, 312
96, 100, 101, 103, 114, 250, 252, 265

 

 

SAO sas ie cice anes aw auaele eg 26, 81, 361, 362
1341.54, 71, 81, 68, 99, 100, 367, 368, 369, 406, 407
1OBD: ici cedinvesdae de aaenurenms 26, 361, 862, 363, 364
1843. ..54, 70, 81, 863, 869, 870, 887, 392, 406, 407
1344 .. . 876, 379
1345... 104, 379
1346. 26, 28, 45, 81, 122, 302, 303, 308, 332,
335, 499
PIO cteacseseind a 26, 29, 47, 50, 122, 505, 311, 4¢3
Aah ate or aesreiians ---26, 29, 311
& dey os Bees een . 28. 212, 203
i 122, 244, 269, 277, 510
IDSA seeeons -54, 70, 81-84, 313, 314. 870. 387, 392
Boe 6-25 SeBsecuMuu eure 81, 99, 100, 104, 314

182, = 316

 
 
 
 
   
  
  
 
  
 
 
 
 
 

 

uinioale . 41, ..4, 26, 29, 55, 312

siete 87, 41, 886, 389, 395 1357... wee 204, 26, 55, 868

.. 41, 42, 395 1808 f snimecwscuniaiuat caassitecigaoadyer kode 363, 376

eae Srastoera tetas Se eaters 41, 395 1859. sive weaereneranerS6y BIB

1300... .62, 64, 66, 67, 240, 245, 247, 248, 314, 1360. 51, 70, 85, 369, 370, 379

368, 369, 406 | 1361... «4, 61, 812, 866, 376
1301..49, 68, 211, 214, 215, 245, 364, 368, 376, 406 1522... naiMlesade eWrrnnaerenatele aims 36
1002} jesisainiianaies enka, Bee 45, Ht 66, 247 1528 ..... : aaaieateeesdse as 36
1303
1204
1305,
1306
1307.

 
     

 

« secsenececsesees 80) 91, 249, 251, 258, 464

  
Taste or Cope Crrations.

Section

2260. 4, 31, 53, 56, 363, 368, 405, 417, 419, 425, 456
+ eae 53, 88, 198, 242, 426

 
 
  

 

2575.4... 41, 45, 89, 90, 98, 110, 116, 883, 386, 393
128, 187, 142, 149, 304, 398
efatosat erase eustove unevanovertinesteisr ions 69, 70, 72, 386, 887
69, 94, 111, 886, 888, 389

  

 

 

Section

155, 60, 66, 73, 414, 419, 420
AT wias5s suastiaredhurstednaiais pies wiaivereoels 67, 73, 420, 422

   

7 «128, 135, 435, 439, 446
“193, 195, 432, 454, 461, 490, 491

   
   

3058...
3059,

3060. 489, 492
BOG srt depicaue Rabies oecieeyn ean Gemeente 454
3062. ‘

3063. «198, 184, 432, 442, 450
3064. ..10, 414, 485, 441, 446

rina Rea bec mabe iniew aie 9

 
   
 

52, 55, T1, 427
81, 52, 55, 69, 71, 74, 418, 419

dhs ye dished tenia wateeiNesianan aie a ne 69, 71, 74, 418
3104 ..... 31, 52, 55, 69, 71, 75, 418, 419, 420, 427
BLOB istsssiawranca sie adantene ++. -69, 71, 42, 75, 418, 427

 

3190. 9, 85, 54, 70, 81, 99, 100, 132, 813, 1a. an

OIDs sited ncvatsies ser reeee e289, 55, 64, 403, 404
3192. .9, 35, 68, 70, 71, 92, 99, 100, 184, 135,
408, 406, 407

S199 aa ueones hae Lsaends 1 .0s.55, 406, 410
Xxvill

Section Page
8194.......00006 re 181, 190
3195... «89, 181, 185, 190, 248, 253, 255, 297
8213....9-11, 29, 31, 55, 68, 70, 78, 134, 414,
415, 455, 456, 459, 461, 472, 475

  

 

B20... ee eee smlentaeaaaamagetss 475, 485, 487
ORAS “eisis eroirashatienie alice usee ei fdtivin eyes ats 490

   

. 485, 487, 518

 

Taste or Copr Orrations.

Section

 

BBAB eh atcaica ds. cite cons cuttin vesreciae Rant BA} BOR

8847..2, 59, 116, 117, 125, 142, 156, 165, 385,
469, 513

8555; cicisccdautacuuaieaanswseladesecencs 2416
TABLE OF CASES.

A.

Page
Abbott v. Jewett... ... cc cccc cece cece ees 25 Hun, 608 ......... cece cece eens 309
Aberle V. Pajeti isis scceeaisince cane cece ae 10 Jones & Sp. 217........eeeeeees * 506
Achelis v. Kalman... .......0.see.eeees 60 How. 491 ......... cece cee e eens 807
Ackhart v. Lansing.................. 00 6 Hun, 216.0 icc esis cig ccisie ees sis 125
Ackley v. Tarbox ............eeceeecees BL Ne Xo 064. -seststescraiai pane tareions aietars 168
Adair v. Brunner. .........0cce ese enenes QOUIN:, Yo: 80a) a Ms 2G seeds aeegetneni ges 401
Adams v. Bush.........0..00 ceesseees 2 Abb. N. 8. 104.............. 172, 525
Adams v. Bush.. ...........06 sees eee 1 Abb. App. Dee: Tisccsiescneeneus 529
Adams v. Greenwich Ins. Co...........- NON. Ye 166 .c.s3 cciscee wwsvicewwe 186
Adams v. Oakes. ..........c0eescceenees 20 Johns: 282.5 sisscicscctwesniowes 200
Adams v. Ward.......ccecce0 ceorences GO: HOW, QBS ec: xcieceis <caieis sescore es eccictensts 496
Adsit v. Wilson... ....... ec eee ee eeu eee Y HOW: 68 isin cismesewnsen 878, 440, 449
Agricultural Ins, Co. v. Barnard........ QO ING. Viv OR0 asic eis iatses sb diars acne 288, 289

Agricultural Iron Works v. City of
Cone y of 85 ReW is caee ee ees 371
Alburtis v. McCready............ .....2 EB, D. Smith, 39........ -....... 448
Alfaro v. Davidson ........... 0. cece eee 7 Jones & Sp. 462.............. 337, 502
Alfaro v. Davidson............ .22.0. ..8 Jones & Sp. 289............ eee ee 244
Alford v. Stevens.... 6... cee ee ee eens 63 Barby 29) 6 seg vee y ee sion gies aut were 449
Algin vi. Gardner: ssc: scnssensecceneses DAN: Ys 800i enaeae sacies coax ceo 188
Allard v. Greasert ........ ..00- ee eeeeee GL NG: Ve Uvaw asec ones eae soe cece cers 285
Allen v. Highmie................00eee. 14, Hun, 593s: nsesacavarcdisy ves 303
Allen v. JumeS.......... cece cece ceseeee M Dal¥, White cide deen BAe Meee see 177
Allen v. Meyer... ......ccceeeerceeeeees SUB INI Nees dlsvac ssa Henoite/ wrecseinieiaceauausss 228, 307
Allen v. Stout........... cece. cece eee IGN. Vin O68 oa auiegae. chawie aren ae 182
AMNGN Vi SWails.., ocdanaadase weve swaeeaes B82) HON, B03. wisiscncceawund a eeanes 470
Alg6o Vy DulCaniiccciacccseveseeses seus BON: Ya BIB sick cece scar eaeewsess 504
Allon Vv. DUnCatsescngs isis ves c's a eed OA HOW O10) wrssaidie-¥eiis eens wsinie's sae 508
Alling vi. Faltyiac csgeseccdre sae seeaneee TOUN: Vo OTL suviccwiaw oss ree creases 225
Allis vz Leotards «ss sa.0vdeeawesawn ve ees DOIN: Yo 288sccvesoaw wane oh24 52045 187
Althouse v. Sharpe.. ........-..eeeeee 18 Week. Dig. 478........ ........ 505
American Medicine Co. v. Keisler.......12 Jones & Sp. 557 ...........6. 63, 339
American Nat. Bank v. Wheelock....... BOING Ms DUB vsscsscis cutee ewisne ay tees 353
Ames v. Rathbun ................ eee ee DOBAT Ds WOE cicsteatcions ais aeeuoaseae Satis ws 838
Anderson v. Diekie.. ............000 0s 26 How. 199........... ncaieum ning cg 319
Anderson v. Market Nat. Bank.......... 66-HOW:, Bisnis ss s svispred-oweeees 525, 5381

nderson v. Rome, aterttown &?

Ore gh Pe POL. Vy BB cnsssssnasenwtesesors m7
XXX Taste or Caszs.

Page
Andrews v. Long........- see. dete TON. Nc B18 vee cseiesieesccsesceaae 804
Andrews v. New Jersey Steamboat Co...11 Hun, 490.......... sedeiewvaseny BOF
Andrews v. Raymond..............0005 58 N. Y. 676........+- aieibisiorese eisies8's 291
Angell v. Lawton .........ccceeeeeeeens TON. Y.. 540s ocsiesssiciearee:eiseinie ants o's 228
Annan v. Ritchie ............... 2 ayaaeyaiy 6 Daly, 831.. ...cceeeecee soeceece 243
ANONYMOUS vies sewecdenewwesvesvane ss BO Ne Ys B18 scisasicesoass 216, 217, 222
ANONYMOUS ....-.. eee cece cece eee nee P Wend: 881 wisaeds sess cits so se seers 524
Anonymous v. Anonymous............. 10 How: 858 6s ic caccsvs vee osncaes 301
ANONYMOUS... 2... cece ec cece cen scence 18 AbD STs cacsew wee see seew sacs 34
AMODYMOUS....... 6.6066 cece cece ee eee A AbbON. Cid i cscs sve csescncess 82
Ansonia Brass & Copper Co. v. Pratt....10 Hun, 448...............000. 186, 188
Apleby v. Erie County Savings Bank....62 N. Y. 12...........008 oe eeeL%3, 285
Apthorp v. Comstock. ...........c0.e0 2 Paige, 482.........ccevcccccvenes 286
Armstrong v. Weed..........ceeeeeeeee 62 Ny Y. 250.......0..000 Boserrees 236
Armstrong v. Smith.................06. 44 Barb. 120........ oer - 10
Armstrong v. Du Bois.............+008 QO AN: Vin OD is sserae sree sasanieewisisenes 174
Armstrong Vv. Oraig ......... 2... ec ee eee 18 Barb, 887.........200- «oe 441, 442
Afpall Ve TACODS sacs eiew ieaeewniierceeiets 56 How. 167........0. ceeeeees 501, 520
ASTOR D core niece soe FON. ¥. 652........69, 98, 118, 119, 259
Arnold v. Parmlee.......... eases vested OTN: V2 G52. 0 vies cesses casenwrcsee 178
Arnold v. Skaggs...........cceeeseeeeee BD Cal. 684... wcces eee ee nee eeceee 528
Arnoux v. Homans.... .........-+-206- B2 How. 882. ...... cee cece enone 82, 119
Arthur v. Griswold. ...... 0.0.0.0 eeeeee BON: Ys, 400) six sicsieceweewenven’s 352
Arnold v. Griswold. ..........eseeeseeee GON. Y: 148). cc ccees wees see's gees 220
Ashley v. Marshall....-..........e02 000 29 Ne Yi A904 ois os onesiwasaneeaeee 176
Astor v. Palache...........sssesesesseee 49 How..231 sca sess scsveeccex 432
Atkins v.. Elwelliscossiccececcssessaewas AON: Vic VO8seotussisdeasesveceess 180
IPO HH. Chane | Ee BB cepa nee meen 218
Atlantic & Pacific Tel. Co. v. Barnes....7 Jones & Sp. 857.......... cece eee 244
tomes Genel, Conlinental 1f6 Yes 99 19. ois occas csetsa: 215
Attorney-General v. Continental Life log 0 -Y. 97.0... .cscsccesesesseees 292
OTE Cores sted acted hoe he ce eaeiiataes 22
A ee eee 1 93 NG We eeseeene 217, 220, 227
ee ae ne pal ccna } PUM, Me Ur ceeaiacuecdenieaasvas 34
Auchmuty, Matter of..... ......-..0005 TOEN : “V6 22 cianaadaedamwrewes 237, 238
Austin v. Burns........ cece eee eee 16 Barb. 648.... ......... eee ee 447, 449
VOTH Vi Leah a is cticerssis aisteisinernielea ba Vee OED UT NOG a ssintedisuisisreaie arena ouanesectiek 447
Avogadro v. Ball. ........ce eee eee e eens 4 E. D, Smith, 384................, 447
Ayrault v. Pacific Bank............ 0... AT INS VeB U0 ideas a saiclvwasiginenseaaay 184
Ayers v. Western R. R. Co.......,...06 49 N.Y. 660 ...... cece eee eee 469, 474

B.

Bailey, Matter of.............ceeeeeeeee 85 N. Y. 629....... eiteseativates 180, 288
Bailey v. Park.......ccsseccccsectscees 5 Hun, 41........ scsiarsiaiereieereeencis:ce O08
TaBLE or CaAsEs. Xxxi

Page
Baird v. Gillett ........ wees ee cee ee 47 N.Y. 186.... ..eeee wecleteaiets wee. 176
Baird v. Mayor, etc. of New York... ...96 N. Y. 567......-..0.06. 181, 279, 343
Baker v. Bonesteel............+..- isin PLUM BOG sien oe ee vine 0s Has w alewraree 449
Baker v. Hatfield ..........0.ceee ee eees 29 Hun, 670 2.0... cece eee w eee aeee 57
Baker v. Home Life Ins. Co............ OBI: V5 O80 i aisiccs ccrrerersierescasie wate wieee 223
Baker v. Lever.......0..0ccceecsceneees By ang D1 ais siois wax scare sig ale siacenoens 855
Baker v. Simmons.............006 coos 29 Barb. 198 j vsccswcvesesieee eeses 536
Ball v. Gardner..... ccc. cece eee eee ee 21. Wend. 270... cissee sescvewseay 113
Ball v. Loomis...........e.ceseeee eee 99 N.Y. 412 cicrxcawsiomendie see vos 342
Ballard v. Ballard ............-e0se eee Ad IN. VAL ccicateensiinsicecex 101, 265
Ballon v. Ballon.............¢. ee ecee eee Gen. Term, Fourth Dep., Oct. 1884. 145
Bank of Genesee v. Spencer ...........- ISL Voda iiaswnicatd saveeeecons 226
Bank of Havana v. Magee...........+.. 20 Ni YY: 265... ois seis vias sirens 168, 169
Bank of Havana v. Moore.......+..++5+ 8 Week. Dig. 198............... v%, 78
Bank of Utica v. Ives.............-00085 17 Wend. 501. ..26cess ceeseins cuss 508
Banks v:. Carterecacccaiwesc seve sie vedas tT Dalys Al tied saws te 055s esate sivas 360
Bannon v. McGrane..............s0000- 13 Jones & Sp. 517...........0.06. 344
Bamberg v. Stern. ... cece eee e ee cece ees TB N: Yi 55... 6.21 woes ccenseemees 404
Barber v. Stettheimer................55. 13 Hun, 198.66 secs svs cscs cee ccaave 435
Barker v. Cocks......0s.ccesececcveense 50 N.Y. 689 sinc tacasisaeeceaee. . 212
Barker v. White...........0 se eee cence O8.N, V. 204.052 ecu sstee t8aeeees 21
Barnes v. Stoughton... ......eeeeeeeeee 6 Hun, 254....... cece eee e ee eees 39, 65
Barnett v. Meyer... 2.0.0... 0c cece neces TO am, LOD a csacsrateva abies midveseions reine! 6 309
Barnum v. Seneca County Bank......... GO THOW?, 82). cred a.avenasloiaiiove Sie cheautaass re 821
Barrett v. Third Ave. R. R. Co......... ASIN 6 NG G2B ice c:dc5- 0 a coys, grave siacersievs 508, 504
Barrick v. Austin............ 0.0. ee ee eee OL Bar bii2al visi scsewa wagner ee ds 187
Barry v. Mutual Life Ins. Co............ BSN. Vs 586...cc00vaar seas veces 224
Barteau v. Phoenix Life Ins. Co......... 67 Barb. 854...........2.. 200 ee eee 525
Bartholomew v. Lyon..........:620 cee 67 Barb. 86........... cee eens 168, 187
Bartle vz Gilmane. o. cee secs sc cece as eens 17 How: Ussssisavvsnse sewers . 490
Bartlett v. Musliner ..............- 2... 92 N.Y: 646. since seaxawaseawes 260
Barton v. City of Syracuse.............. 87 Barb. 244.0... . 00. c ccs e cece eee 176
Barton v. Wheeler & Wilson Manf. Co...5 Week. Dig. 584............. 2006 135
Bassett v. Wheeler............. i arancscsugeating BEING NY Al6 oa diese vee esc sveas Seba 283
Bastable v. City of, Syracuse............ TORING Wis Os wie:srviaidcauete 9 Sce'e 3 a.aisiajs ele a 243
Bate v. Graham..........-0.-e eee eee MAN M5 RB sid inser sarees 208 166, 167
Bate v. McDowell...........0.ecee eee DON. Xs G4Gi sv cieisvecists uae we aes cai 232
Bates v. Voorhees......... 2 ava cvaeseaiay biabica SOUND Ys O20 saainiesa pena eves 58, 340
Bathgate v. Haskin.... ........-. eee eee GOIN Vs 26 Lies aia sina cesieveees 478
Batterman v. Finn...........ceseeersees 40 N.. ¥ie B40 ccc aleues's's 23, 198, 218, 220
Bann v. Tarpenny........eeseeseeeeeeee SLAIN 15 wa ero adsrameuntaiaiaaee ss 449, 450
Beach v. Gregory... .... ccc ceec ee eeee eee PADD: 208. cee sccecis cca sadeeaca ce 170
Beach v. Gregory ......6..5 cee eeeeees 8 ADD: 18. i soc esieidiwrcinewiedsaeins 129
Beach v. Chamberlain.......... ....... 3 Wend: 866... cscsccccceccsecteete 292
Beach v, Cooke ....2...0.scccee ceeenes 89 Barb: 118 355 sce 050. vie aisieseinn 354
Beach v. Cook ............eeee eee cane SBN. Y¥,.1008) s sancacs dada tentes gen 146
Beach v. Southworth. ............0-505- SVBAarbs ATS :2.2. sos nrcate sessineaneceetys 119
Beadlestone, Hx parte........... eee ee eee 1 COWS SOT Ais sacniesoe'ce'e's elaele sais es 74
Beach v. Skillman. ............e eee eeee 12 UD OTs sien. 64s seer o'e's anise 60 dw ate 444
Beals v. Beals..... Uisialy dig vuwielsaeaurausas QTd) Wie cens veeaesecdee outs senses) “OBL
xxxii TasLe or Cases.

‘ Page
Beard vy. Sinnott..... iS aveintpnape: stasendunta-ciasdees 8 Jones & Sp. 61.........65% ierees 884
Beard v. Yates..........seseeessecvers { 1 ae x. oe oe oe oe eee 144
Beards v. Wheeler..........sseeeeeeeees 76 N. a DIB eevee’ ere 224, 226
Beardsley Scythe Co. v. Foster.......... BO: Ne Ve DO Leissitis wale’ sineinacie 38 7, 850
Beattie v. Larkin.........ceeeeeeeceeeee 2E. D. Smith, 244.......0.--0008- 447
Beattie v. Nigagar Savings Bank........ 41 How. 187.......6 ceeeeeoeee 510, 511
Beatie v. Qua.... ce cceeeeeeeeeeeeeeeee 15 Barb, 82's 4s 04 esas esas ve cence 7
Beck v. Selden. ........cecceeceeeeeaees ASTIN Ms SOD iia c wieige crgin es siesass siard.s oie 280
Beckford v. Chipman. .............0e000 44 Ga. 548... 0.6 eee ee eee sow arece 531
Beckwith, Matter of..........000cee0ees 87 N. Y. 508........2005 87, 58, 60, 170
Beckwith, Matter of... .......e.0e-eeee 15 Hun, 326..... ... 58, 69, 81, 367, 369
Beckwith v. New York Cent. R. R. Co. .64 Barb. 299..........eececeeccves 504
Beckwith v. Whalen..........-..02.005 5 Laanss: 397 sisceuniienne seis ates ores 285
Bedell v. Bedell...........2.20 ee eee . 4 How. 482..... Waivars sateaaecice a loiaustee's 309
Bedell v. Chase..........ccceee eee eeeee BAN. YA B86isiciece cdciwsaisies 205 227
Beecher v. Conradt...........ee0 gah tes 11 How. 181... 02.00.0063 172, 200, 267
Beekman v. Bemus. ..........0eeeeeeees TP COW SE 29: ox sa dans ties seater swale 532
Beers v. Hendrickson..............0008- 45 N.Y. 665.665 wascvessecsvee os 350
Beggs, Matter of.... .....ceeeee eens vee GUN. Yi 120..a:c0cascsmasacter 227, 231
Belden v. Nicolay...........eseeeeeeees 4E. D. Smith, 14...............4. 452.
Belding v. Conklin...............00008- 4 How. 196........... cece ewer eee 496
Belknap v. Waters... .......e0.205 eee BIN AW... AUT ave aerive tarerasiaconnane 218, 313
Bell v. Bartholomew... ..............06+ 11 Reporter, 510........... seeeee 412
Belsinger v. Chapman...........+...05 QA UD, U5 sis, eis e-svewincnoreiere aroecdiese 342, 343
Bemus v. Beekman...............-.205. B Wend. 667....... 2c. cer ecccscons 532
Benjaman v. Allen............. ese eee ee 7 Civ. Pro. R. 202...........0. 000s 43
Benedict & Burnham Manuf. Co. v.Thayer.82 N. Y. 610..........2006 V1, 266, 267
Benedict v. Johnson...............e000- 1 TiANSy D4 06 cas aeaiaye aver Apeemevsinerees 508
Benkard v. Babcock...............00005 2 TROD: AIG sesiei sia rcin ety scteiaiasbitiers Shorea abe 19
Benkard v. Babcock...........seeeeeeee OF HOw? BOL oe ain sensi ddcescerncgvccgsigs 21
Bennett v. Austin. ...... 0... cece eee ewes G8 Hun, 586s ees eis cciies ever se eases 176
Bennett v. Bates.............. 2 eee eee ee O4ON EY B04 asia See eed 286, 287
Bennett v. Brown. ..........eeeeeneeeee 20 Ns, Nis QO esis wicicsiee sees oe s'e a s'en 113
Bennett. vi. Lake i isises ois sets sitiere hee se A ING Vs, OS) seh sles ciahadsstansisdeaser 301
Bennett v. Mathews..........00..eeeees 64 Barb. 410......... Pi hlha 46, 182, 335
Bennett v. McQuire............. sees 58 Barb. 625 ..ccccecscaseccecneeeee 177
Bennett v. Morehouse ..........-...-05 AD Ne Ve VSG wr icnavsnarasanaare saree wane 226
Bennett v. Scutt ......... ee eee eee eee 48 Barbi: 84 icaucass: waie ceive ewes s 878, 449
Bennett v. Stevenson......... Waeaedes BS NLCYV:: 608s acov saras.crnencrameneasts 232
Bennett v. Vanslyke..............-0005- ISIN. Ys 481 cnwsivstnawewddwien dain 18
Bensel Vi Gray veveccesescwessawescuwwes 6 Jones & Sp. 447....... 0. cece eens 333
Bentley v. Waterman.. ..............6- WS NG Yo @28 secs teriecmawes esas 227
Bergen v. Carman..........ceeeeeee eee AON: Vs Il 4Ousieessscewiasseahccis 218
Bergen v. Carman...........e0eeeeeeees NON OY 146 biases Aiakeceveskee dees 240
Bergen v. Stewart. ..........ecceeeeeeee 28 HOW: Coc scisevdaee tees tac es 108
Berry, Matter of .........ccceeceeeeeeee 26 Barb. 55.......... Seca Mai else 105, 106
Betts 0s Gary ie secucaaee eesie steeds ieid vie ess ve ps0 IN. oN «OBB occ ors:vensseaaieras scarern’ 219, 230
Bidwe'! v. Astor Mut. Ins. Co.... .. rdG INV 268i ee eared atte anous 274
Ee eee Lis Hin BO ccSecexcinteres 844, 505, 559
TasLE or Cases. XXxili

Page
Bigelow v. Sanders........cceeseeeeeees 22 Barb. 147..........068. 378, 440, 449
Bigler v. Barnes............ 0.0 seeeeeeee OGINs Vi G04) ves ce acres deesaes 288
Biggs v. Waydell ............. eee ee eee 18 Ne V5 O86 so acgiva tins aievni stadesisiaieres 218
Bigsby v. Warden .........0.eseeeeeeee G2 Ne Vo 21 oes erin ain weiaee 471
Binsse v. W00d,....... 20. cece cece eeeece 37N: Vi 526 casas cde vedave seve 7, 186
Bishop v. Empire Trans. Co............ 5 Jones & Sp. 17... ... cece eee eee 59
Bissell v. Hamlin. ........... cece cece eee 1S ADD BB isa iced eae bee Ase 353
Bissell v. Marshall ...........0e cee eee 6 Johns. 100........ ccs. eee ee eee 438
Blair v. Bartlett. ..... 0... 0c. cee eee eee 75 N. Y. 150, 158.............00085 10
Bare yo Obaene reine Seellome ks ROM Gilecocereeend 71, 99, 100, 249
Black’s Estate...........c ccc rece eeoees 2 Duck? S89 new vacvr nesses seated 98
Bliss v. Hoggson.............0-0-- Ne cet 84 IN. Ws 667 s.ois cs sateeceaietas 268, 267, 268
Bliss v. Molter..........cceceeeeeee ees S Abb. N: GC. 24l oc: sasescaescaeesee 96
Bloomfield v. Ketchim.................. 95. Ni Ys 60%s5 ss0n qeremecmeeeare 349
Blossom v. Hstes...........0..eecee sees S4.N. Y¥. 618. ss2.05 cwedsinace sees 214
Blydenburgh v. Cotheal................ BING, Yo AIG sctescaseiseteu Regdee evant Fine Oe 61
Board of Commissioners of Excise v. \ 29 How. 33 504

BACKS oie .snccoenG0e, ee aperedte ee slave gcasdce TES pene Oe ee OR aa ret
Bockes v. Hathorn............. ..ee eee BIN: Nea 22 Sina lous ange wie nhaboemeccaces aces 33
Bogardus v. Clark.... 0.2.2.0... ee eeee A PHIBE) 623 six c ocareaee saw bane 37
BoOl6sV}. DOT 5 oes vnice nde csiesicremede wes 59 Barb, 567. c.ceseiis aioe aaaas ... 858
Bonne v. Witt............. cece ee ee eeee 19" Wend) 475 3 cass aaeigtnacs teers 357d 102
Bonnell v. Grisswold..............e000- SGN. Wis ees weve cade aeea oun sg 175, 286
Bonynge v. Waterbury..............005 12) Hun, 584 occccessens someeey ese 526
Booth v. Boston & Albany R. R. Co..... TONG YoB8 yes cai sasnosaceaaaraass 182
Booth v. Kitchen.............e.eee eee THUD s 260 nccccdiness v.85" 8 4esew et 37
Borden Vv. Fitch. «0223 sass cs ses sea wews 3 10 Johns, 120.6 eae ci cdes cae eekias 11
Borland v. Barrett.............0.eeesee- IB? Vids V8 ossicles sie scacafaesininncmae as’ 542
Bort-we Pmt scscccs: osinatees.0.<.ps edhe Fe 5 Barb. 283............0005 176, 448, 451
Bortle v. Mellen ........... ay sisioreetcese TPAD: 228s sastccnmaa tated dese 129
Boss v. World Mutual Life Ins. Co ..... 64 N. Y. 286.......... 46, 308, 385, 387
Bostwick v. Barlow..............eecees 14, Hun), UT couete aoecass 308, 308, 835
Bowdoin v. Coleman............... ..- O.Duer: 183 i as8 srs mactidaeta ess 3 169
Bowe v. Brown........... eee eee ee eeeee 23 Daily Register, 66.............. 310
Bowe v. Comley...........eeeeeeeeeeee 16 Week. Dig. 343................. 412
Bowen v. Becht.............s0ceeceeeee 85 Hun, 434............ 47, 50, 178, 339
Bowen v. Irish Presbyterian Congregation.6 Bosw. 245.......... cece cece eens 309
Bowen v. Widner..........ees eee cece 12 Week. Dig. 525................ 366
Bowers v. Tallmadge..............0006. Q3UN. Ys. WB sseivnce as sae 263, 267, 268
Bowery Savings Bank v. Richards....... GROIN. Na OSes Grace avek Gece 218, 220
Bowler v. Washington............+..005 62. MO 302 sarasidserereaudisieavess eaters d 542
Bowman v. Coruell............-.0000005 80 Barby O92 3 scctdeancgiuile vedas as 106
Bowman v. Tallman................-05. 28 How, 482s o 6 cau seisees tnwnes eas 106
Boyer v. Brown.......-.ecec scence ee ees T Hun, 615.60 s0ss0cce dees cee 144, 339
Boyd v. Bigclow.......0...ece cece eens 14 HOW: OUT fatedcnneivecemethencadd ae 313
Brady v. Donnelly .........0.2seeeeenes BNEW, S126 cic seus dieser ceiert Gas 19
Bradbury v. Cong.......-.eees cece ee eee 62 Me. 228............ Sioned eaten 542
. Presi . of South-

Pasture Porm Ge, ee ar Be: t 16 TelMaB ress peueereseacadand 17
Brandlacht, Ha parté ......cccseene eens Dill, BOTs. as naa ceaeweawaoee ease 12

c
XXXIV TasiE or Caszs.

Page
Brainerd v. Dunning...............6006. 80 N. Y. 211.......... Seaeaeaieies 174
Branch v. Levy..........ceeseeeeeenees 12 Jones & Sp. 507..........0 eee 177
Brewster v. Iron Mining Co............. 56 N.Y. 671.0... cece ee eee eee 193
Briant v. Trimmer. ..........0eeeeeeeee BTN, Yc 9G is wiser bis 058 Sais ene ewes 173
Brick v. Brick .........+2seseccessvecse 66 N. Y. 144.............. 144, 178, 400
Briggs v. Bergen .......-.seeeeee veces 23 N. Y. 162........ pine Paredes 236, 309
Briggs v. Brown........cceeeseecsceenes 13 Abb. N. C. 481...............4- 108
Briggs V., Vans eei):e6 sie s osie esp! oo sims 1E. D. Smith, 192................ 451
Briggs v. Waldron..............eeeeeeee 83 NG, Vs O89. co ccve cies ow ensinrasivs 125
Briggs v. Wheeler..........-..-.eeeeeee 16 Hun, 583...........0c cece eee ene 180
Bright v. Wilson. ..........-.cceseeeeee t- By Mom: 122) aiscuisesetete nisin o0g 6 0:<e 529
Brinkley v. Brinkley................005 AYN Vis 40s 2 ssccecuseciein 4, 218, 238
Brinkley v. Brinkley...............5 pee0O Ne Ve 184203 ssas saves secs’, 231
Brinkley v. Brinkley................00.. DOIN: Yo 19 Qe cc ove anv dev ddex dees 224
Bristol, Matter of...........cseeeeeeee 16 ADD: 8972 sseewsscesedace aos ss 34
Britton v. Phillips.............. 00sec eee 24 How: 110 sisiecsicsacixcecesiae 192
Britton v. Phillips............eeceeee eee IG ADD: 88, ¢25s0 seie2 sash sa eeak see 82
Broadwell v. Holcomb.................. 65 How. 502 ...........0. eee eee ee 88
Brodsky v. Thms....... . 62... eeeeeeeee 25 How. 471.2... cece eee eee eens 340
Brock v. Pierson.........eeeeeeeseeeeee 46 N.Y. 690... 2... cece cee eee eee 483
Brokaw v. Brokaw.............-000- ..-5 Week. Dig. 267..........--..005. 42
Brom v. Kruger..........eeeee eee e eens 8 Hun, 621......... 0... cee ee eee 511
Bronner v. Loomis...........0..0eeceee: 17 Hun, 489..........0 ccc eee 109, 110
Bronson v. Tutbill.......... eee e eee eens 3 Keyes, 32.......... Rises wes gx 176
Brooklyn Oil Works v. Brown.......... BS HOW. 451 sisieicaiae vais vets e oe ee ees 126
Brookman v. Hamil...............0006. AB Noe Ni DOM seis. ste eewies v's oa ecise'e ste 275
Brooks, Hz parte.......cc ccc ee ee ceenes P COW: 428 sais gers win Waaiwis Goes beleter nes 98
Brooks Vy. Curtis sssisisicaiccs. ccs aiscsreeisreersteustionss DOUN Ny C89 ewiesis: wieistes va egare'e i's 295
Brooks v. Higley. ..........2.0eeseeeee AL Flan, 280 sass 10 te ees dress oie o's o's 163
Brooks v. Mexican Nat. Construction Co.93 N. Y. 647..........0..eeeeeeees 232
Brown v. Becht..........--ceeeeee cece 85 Hun, 434............000 eee 120, 121
Brown v. Bradshaw...........e+eeee eee Le Dulery 199 oc eiswgevres cade edie oes 508
Brown v. Brown........ cceeeseeeeeeee DEEN: We G9 vietiewaicnwaietic 6, 217, 292
Brown v. Cassaday...........0.eeeeeeee 34 Hun, 55............ 53, 417, 426, 428
Brown v. Colie.........ccceeeeeeeeneeee 1E. D. Smith, 265............. 168, 171
Brown V. Evans...........seeeeee eee eee 84 Barb, 594 «.asswevdae cevsewesccs 40
Brown v. Hardie..............0ee ee eeee D Rob: 67 8ice scala nck wets ven ewcees 58
Brown v. Keeney Settlement Cheese Asso.59 N. Y. 242 ........ .....000e 220, 228
Brown v: Leighsac.s.ccscscevesrercoees 50 Ni Yn 427 wodesseesdaavaswse 299, 484
Brown v. Mayor, etc. of N. Y........... 9 Hun; 5873 seine coeniiadcece: wae 21
Brown v. Moran.......... 2. ec ee sees eee 65 How, B49 isicccecissdewsccacces 412
is Ve csp com ienesnsaiok as LORIN, Y. GOB. snswwewnsios 284, 281, 296
Brown. v. Niess.cc.cisiees see eee eeees 15 Abb. N.S. 845...........0.. 816, 328
Brown v. Nichols. ..........-.eeee sees BOEING Yi SB oii cncrenseccnusedisaacacas 58
Brown v. Sigourney. .......... eee ee eee TR Ng YVR cecevcaaieageieca wands See 204, 205
Brown v. Taylor... ..... 0 cee cece eee eee OOIN 2 We C2 occ se shaven cana w ss 3821
Brown v. Windmuller............eeeees 14 Abb. N. 8. 859................ 496
Brownell v. Nat. Bank of Gloversville. ..138 Week. Dig. 871................. 3806
Brownell v. Ruckman...............6 BO N.Y. 648.0... cece eee ete een ees 230
Tasie or Caszs. XXXV

Page
Brownell v. Winnie..... 4 arabes ie shane 29°, Y. 400 wise seis wisceawe ec oe 452, 453
Bruce v. Davenport...........005 sieges 8 Keyes, 472..... ccsccceesccesees 353
Bryan v. Durrie.......... . elit oid ciaayeeeias 6 Abb. N. C. 185.......... 0. e eee 345
Bryant v. Bryant...........2.seeseeeees 7 Abb. N.S. 188....... 00... c cree 59
Buck v. Remsen.... 0.0. sesseeseseeees 40 Ne Yo BSB re snunscusassaasswe 7
Buck v. Waterbury..........0e..eeeeee 12 Bath. WG. ccdese eee er sexes 5s 451
Bucking v. Hauselt...........0.00c0sees 9 Hun, 683............. Sdieie Asta adins 302
Buckingham v. Dickinson.............. BAN, VY 1G82 sessiccawoesunwais 170, 223
Buckley v. Keteltas...............2.00% A Bande. 405. ccc cece cece dec ens 146
Buckley v. Leonard.............0006 4 Denio, 500.......... cece ee enone 449
Buffalo Savings Bank v. Newton ....... QBN. Ye WO neviccecindicnig seis «5 217, 229
Bullard v. Pearsall................ee008 46 How. 888......... 0c eee eee noes 4
Bullard v. Smith. ........ 0. cee eee eee 68° Ga. M65 cc 6 csias see swesiesiosane 539
Bunker v. Latson ..........cccceccceees 1E. D. Smith, 410................ 458
Bunn VW. Croul. caeccsscecccscavessectcs 10 Johns. 289 oc eccscwevsvrecenaa ss 537
Bunn vi Hoyt... sse%sses ssacveds saci ascas 8 JOhEs. 25555 sos cnovdoawnss neues 525
Burante v. Deyermand ................- AU NY: 808 fore. cations wit eta sis 216
Burch v. Newbury .............. eee eee A HOW: 146 oe2 bie so 354 0.3 aig siaveseis 19
Burdett v. Lowe ..........cceeeseeeeeee BONG Xs BEL iene cess acarecossctieuenaloraies 112
Burgess v. Simonson............00e0 000s AON. Va 220 ss cressaas.oahs oaapaaiaoa ne 280
Burk V.-AYr6S he sisi cons tse w dena eee cease 19 BUD Wise sadktcie iden taceks 65, 368
Burkett v. Taylor. .............0ceeeees 9 Reporter, 623..............-02 20 526
Burleigh v. Center........... 0.0.00 eee TEN Yo G08 is oss seeks se cacee oss 206
Burling v. Gunther. ..............0.0005 G8: HOW: 6B igs wisiierekte Ssharices 32 355, 404
Burnap v. National Bank of Potsdam....96 N. Y. 125..............00.. 175, 291
Burnett v. Harkess..............00ee eee 4 How, 158... se cesesseaeeces fase BBR
Burnham v. Butler.............ceceeeee SLIN: Y¥ 480: a ccotncussiedeae ses 378, 448
Burnley v. Rice . ois sesiess ces ces vows cas 2 Texas, Wlead vices sds cans siccaes 528
Burns'v; Perrine. .:icecssswa ses veese veces IANS Yo WSies ses susseectsacvens cis 185
Burrall v. Vanderbilt..............00085 GADD? lovvsaess ir sattig teased eas 108
Burroughs v. Norton.............000085 2 Hun, 550............... eee 118, 429
Burroghs v. Norton.............eeeeeee 48 How. 182......... cc cece eee eees 63
Burton v. Wheeler & Wilson Manf. Co..5 Week. Dig. 384.............. 378, 448
Bush v. Rochester City Bank........... ABN Ys B00 bs ciowegeuanes the Haas 32
Bush v. WeekS...........-..c cece eeeees 24 Hin, 040 ioc cuuie os weaesine teas 449
Butler Ve Le goo sianiacaieiss veersivenntavee wie as B W6y 68: 10 visen poioie Gee cen annus 211
Butterfield v. Radde.................00. A HOW. 580 iso eine siete reins Satanic 243
Butterfield v. Radde.................-4. 8 Jones & Sp. 169............. 358, 359
Butterfield v. Rudd..............0..000. OS Ns Vi. 489.0. scc esses wees saad 28, 207
Byrnes v. Delaware & Hudson Canal Co..7 Weck. Dig. 549 ..............005 511

Cc.

Cady vs Allens ca) eors tec eeieee gens 22, Bat bs BBS ies ciu mene nage vink sa e's 166
Cady v. Fairchilds ............0.. ce eee 18 Jobns, 129............. 00 e ee 452
Cagger v. Lansing.............. Somme G4.Ne Ve dlece weak cess veces sees 7
Cahill v.. Hiltons ccciecees accede cianes s 81 Hun, 114: sees ncsntaceonners 534
Caldwell v. Murphy.............---008- TUN. Vo 416 oe cestactiang se sakeeeeenie 184
Caldwell v. New Jersey Steamboat Co...47 N. Y. 282......... cece eeee 183, 53

Calkin v. Manhattan Oil Co............. GOIN. Ys O01 a iecee tcderriuw cieeracs 228
XXxvi Tasie or Cagzs.

Page
Cambridge Valley Nat. Bank v. Lynch..76 N. Y. 514............ 50, 62, 212, 304
Campbell v. New York Cotton Exchange.15 Jones & Sp. 556.......... 50, 62, 304
Campbell v. Birch..........0.. cece eens 60 N. Y. 214....... Sonera ee Beis 188, 275
Campbell v. Page ........... 0.0. ee ee ees BON. Ys 6585. 6292 css se we case's ostre 234
Cameron v. Equitable Life Ins. Co...... 18 Jones & Sp. 628.......... 50, 62, 63
Campbell v. Kearney..............00005 45 HOW’ (8% asia sginw atieeriaccarnernion 343
Campbell v. Genet ......... 0. esc e neces DS FLING, 200 acne raat wise cen teers 9 68 525
Campbell v. Perkins................005: GUNG Wie BG isissccincde sceudeevrecivwsaeeeietacs 351
Canaday v. Stiger........... 0... cee eee 3 Jones & Sp. 423..........c cece eee 357
Canfield v. Baltimore & Ohio R. R. Co. .14 Jones & Sp. 288..............4. 182
Cantrell v. Connor ............. ee eee eee BL OW B6 ii ctivaisicsencececoareweuaiecasine 102
Capron v. Thompson..............ee008 SEIN. “Vir F 18s sicscwvasdcawigiase wiareseiess opens 353
Capwell v. Ormsby.............eeeee eee 2E. D. Smith, 180................ 435
Carll Vi OAKEY 9.0.0 ccgsavecetiateccewteiearowate ne ON. Ye GBB a scainanemane aca wired 18
Carlton v. Darcy.......... cece eeeeeeee 75 N.Y. 375...... Pipe dogs amiaeas 225
Carman v. PultZ......... 0. cece ee ee eeee BLING, Ke O4 Ts cicie's sale Sete wre sieie's 178, 174
Carnes Vi Platts cieieicisie eis eciewie ai siele saa 4 Jones & Sp. 520............. 338, 503
Carpenter V. Coe... .. ccc cece secre renee 67 Barb, 411...........-..0006 525, 529
Carpenter v. Manhattan Life Assur. Co. .25 Hun, 194..............0...-..4- 480
Carpenter v. Smith.................0045 10 Barb. 668 scp sccwadesdvendneeas 186
Carpenter v. Stillwell..............--.4 TN, YN; Clomediasenavansdcaneanats 183
Carpenter v. Willett..............-...-- 28 Hows BIC sais wecansnawesnonas 486
Carpenter v. Willett.............c0ecees B Robs 700... as ccc ace ected eee eee 490
Carr Vi Cart neces devas socecew ea eceionsis B2 N.Y: 20k ccs cesses years 289
Carraher v. Carraher.............-0000 1 Jones & Sp. 502 .............000- 331
Carrington v. Florida R. R. Co.......... 52 N.Y: 588: sae sions sere neies cea 218
Carroll v. Deimel...... 2... cc eee cece eee 95 Nie Vu 252 swscncnsoaa son 175, 177, 178
Carroll v. Goslin........... cece cece ones 2E. D. Smith, 376................ 441
Carter vs Beck witl.:osccccs.ceesaccs ven 82 Ns Yo S8staniaxes cage aaeeanace 170
Carter v. Ford Plate Glass Co..........- 80 Ind: 180) ss iscccstssaee daeea cas 542
Carvey Vi Ridericssias sia.dirccrasarccseaas vars 2 COWS C1 Tis oss suse ad sence Sakae sess 481
Cary ¥.. WIG ccc ec cieieien nie ceetecsasus BON. WY. B86. ine seiciasace suvsesteianrecnas eae 180
Case v. People.........cceee cece ce ceees 14 Hun, 608) 2 cscs eas eo ee eee anes 348
Caspar v. O’Brien. .......... cece esse eee AE TOW SOL sere: scacscpsdd Baise duanacg edness 503
Cassin v. Delany...........ccee eee ees DONG Yo VIB secs deta nak Wan bin 294, 356
Castle v. Duryea.......... eee ee eee e eee 82 Barb. 480........... 0. eee ee eee 186
Caswell v. Davis..........0.eceeee eee ee 58 N.Y. 228......... 280, 288, 289, 290
Catlin ws Cole onccuueaawiadaveien jase ne 4 19) HO Wrei82.o3.2.e0dn0 ceed oe ade drew 173
Catlin v. Grissler......... 0. cece cece eeee OW Ns ¥. 868.2. eect asaccnsees 163, 211
Catlin, Rikis ss... 08266 e cde vac deaie aioe 91 ONG Vn 668) 0 si cacca ges eteetecens 228
Caughey v. Smith..................0000. ATEN Ni, 244 ects taciocetieges 199
Chaffee v. Morss........0..eeee cece eens STO, C02 onan sited nes hawaiian 343
Chamberlain, Matter of..............005 28 HOW: Vassawcana wueeatte date ve ey eee 104
Chamberlain v. Choles............20005- BBN OV ATT csnnsitisornimureg eens 219, 220
Chamberlain v. Dempsey............... 22 HOW. B56. accodccceuceswnviaiwiere 100
Chamberlain v. Gallup ................- 25 Hun, 818........ cc cc ccc eee eas 9
Chamberlain v. Lindsay...............+. 1 ony 231 ce cskeseancdeautes 526, 533
Chambers v. Appleton...............65% 15 Jones & Sp. 524..........08. 255, 493
Chapin v. Churchill..... Ss ententete nears 12: HOW : 867 sc ccsevacaareaeceecmew 470

Chapin v, Thompson....... Goaaetiaees 28 HUN, Iii cwcseundsaunwneewawess 500
Tasie or Cases. XXXVii

Page
Chapin v. Thompson................005 SONY. 21S scccecseieeees. 120, 121, 522
Chapin v. Thompson...............000- SON. Ye 20 casec ets teloe nomad 500
Chapman v. Erie Railway Co........... DDN Yn OUD nce ecascte se etre ane aanea 182
Chapman v. McCormick..............+. SON. Vo 819s csc cieece crs cave vers 180
Chapman v. O’Brien.......--....ee eee ee 7 Jones & Sp. 244............0005- 529
Chase v. Bibbins............0..0-eeee TAIN, Yoo O02 iss pag. 2s eh eisee's oe sears 58
Chautauqua Co. Bank v. White......... QBN. Vie B40 ice ee vee's occa va seacens 298
Chemung Canal Bank v. Judson...... 38 ONa Y. 264.206 casa ses casieomawans il
Chemung Canal Bank v. Judson........ 10 How. 1388..... ees ee eae BRS 82
Cheney v. Beals............ceeeeeeeeeee 47 Barb. 523 ........-00eeeeeee 447, 449
Cheney v. N. Y. Cent. & H. R. R. R. Co.16 Hun, 415.......... 145, 308, 243, 504
Chesterman v. Eyland..............0065 WAN. Y. 452..... Wh seis waboreisiace 212, 220
Chipman v. Palmer ............-. 00 eee OUND canisree seats seas ds. 184
Choteau v. Suydam...........-...0ee eee BUN VL Gs cada eee ieee ose 355
Chretien v. Douey........ece eee eevee ee Ob Nis, S19 asa ates ieee oataiw appreisl gsereny 194
Christy v. Libby............0.-eeeeee seed ADD. Ne 8. 428 isc sdawemesicence 3
Chubbuck v. Vernam...........--..005- 49: Nia Ys 48e ees csvs aad sai awne 289
Church v. American Telegraph Co ..... 15 Jones & Sp. 558.......... 50, 62, 304
Church v. Howard.............0.-ee0ee AY HN, Gat ecaet aoe eee hea 76
Church v. Kidd.......... wees ete 8B Hud, 204 .oceesd vente cannes ees 176, 514
Church v. Simmons.............0.--06- BON Ve eGL. cia tiawesa a nosaneantls 118
City Bank v. Bangs.................00 4 PRISE 280) cisy a ccawiaawnee deen 76
City Bank of Brooklyn v. Dearborn..... 20 Na Ys Bab sn sta srasres wegen 176
City of Buffalo, Matter of............... SUNS Vi 86 2s. cass sax ewe seigainmierne 6
City of Buffalo v. Makay............... VS Bins 204 263s score sate des Sod’ y ois a et 348
Claflin v. Farmers’ & Citizens’ Bank..... D4 Barby 228 siise cee ccc aes wnies vse 36
Claflin v. Frenkel ............. 0002 ee ees 29 Un 2283 cei edie ans seteaieers 20
Claflin v. Mayor... .......5 cee eee een. TSN, ¥: 260. 06 sce weee eves ace ees 290
Clapp v. Fullerton................0..00: BANE Ys 190: secinieccac: wate 176, 179
Clapp v. Hawley............0.eseeeeeee OTN: No OLOUeaieoes eweeseaes 58, 59
Clark, Matter of..............ccceeceaee 86 Hun, 301.............00--0 0000 476
Clark v. Brooks... .scsacseieissscieae. 26 How. 285.......... 0 cece eee eee 223
Clark v. Brooks...........ccccee cece aes DeDaly, LO9% cx os 24 sere sagen earentieiecess 80
Clark v. Brooks .........e.eeeseee eee 2 Abb. N. 8. 885.............. -83, 210
Clark v. Carroll... 2.2.0... cece eee eee eee 61 How. 47...... 459, 472, 475, 489, 492
Clark v. Dales..............4- P2euedead 20 Bard: 42s cisiecs. eoasteaeewiess 166, 169
Clark v. Donaldson...........-...+.208 40 HOW: OSs cgies veaaee denne te 145, 3412
Clark v. Geery..... eee eee eee eee eens 8 Jones & Sp. 227.......-....0005- 4.7
Clark v.. Lowrie. .siceseesaasaaseovneee 82 Ne Ys 580i 54 a. cache nde ta daneivis 228
Clark v. VOree@s ices isces ssa seus ceeeve 19 Wend. 2382........... 00 eee e eee 182
Clark vi Wises : sacs sex cncaxtavascosenas AGUNG Vio Gli oc cos civics aaa gvaeane 348
Clarke v. Sawyer...........0..0 esse eee 2 ONG Mi 408. cc aw pane sayy cee zanna bn 75
Clemence v. City of Auburn............ GOIN Yn 8845, ocdictecerunbin seraeg aioe 185
Clements v. Benjamine................. 12 Johns. 290......... cc eeece cena 450
Clemons Vv. Davis.........-.ceeeseeeees 4 HUN, 260 os ceesetas caeatenes woes 166
Clinton v. Myers...........0cc ee ee ee eee 43 How. 98.6 6 ce< sotieavaweceres 824
Clowes v. Dickinson................-45- & Cow, 328. cs ansinsimtanasduccesacaes 19
Clute v. Emerich.................. e000 26 Hun, 10....... ties cveie oranda aibrass 334
Clyde v. Rogers. ........ccceeeeeee eens 87 N.Y. 625... .. cece eeeeees 217, 227

Coate v. First Nat. Bank of Emporia....91 N. Y. 20.........0005 eects 188, 275
XXXVili TaBLe oF Cases.

Cobb v. Hatfield. .........cccccceecscees 46. N.. Vi 58800 0060cccccarseecs 246,
Cochrane v. Ingersoll..............20005 RON: XY. OlSinacnsteve tieeeescees
Cochran’s Executor v. Ingersoll......... 66 N. Y. 652........ cece eee 215,
CO6.V? COO ee sei3 ck cacinectens Saws smarts TA ADD 8G ei ass ccs 50 cet ae ed Koti
Coe v. Raymond........ ccc cece eee e eee SOON. OXS G12. Sic ocatnigialcadsiwa
Cogan v. Ebden..........cceeeceeeveeee LT Burr, 888. oieiiaiecsiee nee ebecie sis
Cohn v. Goldman..........cccceeeeeees TEN. Xe 284. cena aac s es ous 188,
Coit v. Stewart...... jhiwkeu wlan at akemeiee DOSING. Yo Pia a arate eotsiesepavadarmiater ore siass
Cole V: Cole canine nd cennsereeseaany 50 How. 59....... cece ese eeaee 525,
Cole v. Gourlay....... ce cr ee ceeeeeeee FOUN. NG. O2Usia daan ea aiowadewiewics
Cole Vv. Malcolm .........cecceeeeeoneee 66. N.Y. 868) cccrceceyieeces ences
Cole v. Terpenning. ........0..0eeeeeee 27 Hun) AVL. os see's sameeoripiunrsareise
Cole V5 UDVI6F si65 ses seat vais esels ceseastoas GD Neo Yo V8 itevis a givieie'e's cloteststnsiarnias
Cole v. Van Keuren..........eeceeeceee 61 Hows Stick wrennccateasiercrarctesee are 528,
Colman v. Dixon......... ce cece eee eens DOAN Vs, S72 eorwtiemenee saicee scares
Coleman vy. Livingston................-- 4 Jones & Sp. 281..............06.
Coleman v. People..............eeeeeees DOING Ye B60. eccicceeaeesacecese
Coleman v. Phelps...........s.ceeeeeee 24 Hun, 820..........00.00 0 cee ee
Coleman v. Playsted..............000008 86 Bath: 26.ccicng sowneeweeeroadec sé
Coleman v. Second Ave. R. R. Co... ... 88Ne YY: 20] vscn coniwiwaan sie es ss
Coleman v. Southwick. ................- 9 Johns: 40 sicn: swwadaiwsiie cease ves
Colliery; “Tift.: sse.csac Smorsen tae coheed MTN Yi TG i rs ceseas sesaciessaaes
Collier v. Van Hoesen............00000 6 Week. Dig. 49.......... 0... 414,
Collms:vi Ball: ico scsc:esic-cc eeiess ae 08 te 81. Hun, 187 222s ce cesanes tases 5
Collins v:. BUTm8. 0.0. ice cases vee tees 63 Ne Ved saegee uence hese casos
Collins) v2; Collins.....c6i0 dics.09 esadaicie soe MLN: Yi 269 3 ceased Said 231,
Colt v. Sixth Ave. R. R. Co............ 1 Jones & Sp. 189 ................-
Combs v. Combs...........cceeeeeeeees 25 Hun, 279 oc ies. osisacniniee ceases 469,
Commercial Bank of Rochester v. Spencer.76 N. Y. 155............0eeeeeueee
Comins v. Board of Supervisors......... GE Ni Y 626.56 c02% cc neces asec eat
Comins v. Hetfield ............. 00 .:e eee BOWN OY. 261. sau bike eadewsctes ces
Comly v. Mayor of New York.......... 1 Civ. Pro. R. 306..............04.
Commissioners of Central Park, Matter of.50 N. Y. 498................-. 215,
C si g r

ee Ot Memeo 2S Ne Ala emarciiets
Commissioners of Pilots v. Spofford..... OB AUD) D2 ies ogee sos e atieraeinleie wine aoe
Commonwealth Life Ins. Co. v. Bowman.90 N. Y. 654....... 2... cece eee eee
Comstock v. AMES ........... 0. cece eee 3 Reyes, 857... 0.0. cess eee eens
Comstock v. Dodge.............eeeeeee AT WOW OF: veacsis: cect sietewst @ereuss
Comstock v. Dye.......... css eee eee eee US HUD, WIS) scsi s eiaae cate ee sree
Jonaughty v. Saratoga Co. Bank........ SQN. Ne AO seve wseciawe argues
Conley v. Meeker ........... cece cece eee 85 Ne. V5 G18) cos cad secant nev euns
Conly v. Mayor.... .. ccc eee se ee ee ee eee 1 Civ. Pro. R. 306 ..........-..4. %,
Conroy v. Campbell...........0.e0s eee 18 Jones & Sp. 326................
Consalus v. Brotherson..............06 54 HOW. 62) costs cc ces oma ociasedts
Continental Nat. Bank v. Adams........ 67 Barb. 318ss0s cto dda cssaes 531,
Cook v. Darrow... .....ce cece eee cence 22 Hun, 806 .. ........... 368, 877,
Cook v. Dickerson... ..........cseeeeeees 1 Duer, 679 .........0085 Saar sie
Cook v. LOWTY......0cccecceeesecseeees 9D Ni. MOB se racsis a ia sree siasenaeico 7
Sea Tet Son Mloatiae eg Vee VSN vee cnc daca

114
185
Tasiy or Cases. XXX1x

Page
Cook v. Swift... .... cc cee ce ese ee ee eee 18 How. 454............4- 878, 440, 446
Cook v. Whipple......... cc ec ce cece wees 55 N.Y. 150....... 00.0 eee 188, 274, 280
Cooke v. Leonard......... 0. cee eee eens 17 Week. Dig. 575........-... 387, 502
Copeland v. Van Alst ............6.-05 9 Week. Dig. 407..........00eee eee 400
Cooper, Matter of......... .ceeceee vee O29 N.Y: 62 wascoenea tau wase see cis 812
Cooper v. Eastern Trans, Line.......... 11 Reporter, 234............065 328, 343
Corbitt v. De Comeau................5. 18 Jones & Sp. 587 .......... 002 e ee 493
Cornish v. Graff ....... cece cece eee 7 Civ. Pro. R. 204 .......... 2.00 eee 127
Costello v. Syracuse, &c. R. R. Co...... 65 Barb: 93 asco. aden sous saeess 508
Coster v. Mayor of Albany.............. ABN NM B09 oon ieaa@auie scien beac vais 167
Coster v. Merest...........0.eeese een ees 3 Brod. & Bing. 272.............-5 548
Costers v. Peters..........e ce eee eee eens TROD. BSG casas -ocsiseis sin a aichere atsce aieik 191
Coster v. Van Schaik..................- G4 OW: 100s serecsicosonnueigsarstin palig- 6 iste. 5) 88
Costes: V; Carroll :.ccaecdesswonwed vee s oe 28 How. 486..........--..-- 39, 40, 65
Cotes'V: Smithwsciccce cavesiesseceeseves 29 How: 826 scusscccdecoureen nese 60
Cothran v, Collins............ ee cee eeees 29 How: 155, cccececssec nea vws 348, 504
Cottrell, Matter of Will ................ 95, NY... B29)s.5 o.se'se eaisis aa 20% 288, 398
Count Joannes v. Jennings.............. 4 Aun, 66.0236 s0s0s4sesadieedaweks 337
Countryman v. Lighthill..... fee queen cree 24 Hun, 405... ... ccc ee ee eee 453
Courteny v. Baker ...........0..0.0e eee GON. Yi dhesciaseaienswaniaueus 46, 501
Cowan v. Smith.......... ccc cece eee eee GL TN, AG eos c ct caatteas aie asnd 528, 535
Cowing v. Altman..............eeeee eee BO Nic Ve 6 fis ocicersiy sy navecau tere treiaibes 167
Cowaditi Vi. Leal cccicsvteccecs ses ecteeee eet GOT ING We 08 hieis scitiscscsgdisiare veesieainet 250
Cowdrey v. Carpenter...............0- 1G ADD: AO sscistdanceisrawianrvewaidteee 104
Cowles v. Watson.........cceeeeee wee 14 Bun, 41, oo e rs ewecneaes se 344
Cox'y.: JAMES iis secnkwiecwiieae ieee e 4D Ny Va DOT ae vee cava cee we cweue 144
Riz ee Nie eee Spi eh Fe Be dh fo Hun, 19B.sccxcetecsccesssens 854, 345
Cox v. Schemerhorn .......... ......05 12 Huh 401 ic asec eceee ce teed 40
Craig v. Fanning ............0..ee ee eee 6 How. 886...........0. eee eee 530, 581
Craig v. Town of Andes................ 93 Ni, Yo 405 oi cedee ete te wes ene es 11
Crane v. Baudouine.................... DON We ROO wicvan coterie sain 181, 288
Crane V. Stiger....... 0. eee cece eee eee OBIS Yor O20) siccouswt vos Saleen ves 229
Crannell v. Comstock............00e0085 12, FN 298i occ cian aaveded eee oa searete-e 443
Crary v. Sprague........... cece cess eee TRE Wend Alioc.5 ciseiumeien ewig ate atlas 176
Crawford v. West Side Bank ........... O2UN Va OL Sire wicwrety pialslones isin oa. 205
Crim v. Starkweather ..............0005 SSUNG Ys, B89) cee sergeeas orton 295, 851
Crist v. Erie Railway Co............... SON. Ys O88. ccs coceeessieeeces 183
Crittenden v. Adams... ....... «2.2.0. BS: How: 810 seve eeesecacee ceesed 67
Crittenden v. Empire Stone Dressing Co.6 Duer, 80...............0ceeeeees 354
Cromwell v. Burr...........s cece e eee QD Ay; 4825 beens ceduseavoueiee 62, 356
Crook v. Harper.... . sicecoase Eriwseuseionenie eds BDalys O8s.cv cca cerese knee ees 451
Cropsey v. Murphy .... .....e.eeeeeeee DAI) I26 sists daca eiune deve waeiea 452
Crosby V. Cobb...... ccc cece ee eeeeeeees 37 Hun, 271............068 495, 496, 497
Crosby v. Stephan ................0eeee OTN. We O06: -:cacwdase cdo 215, 240
Cruger v. Douglass...........-.-..2.00- A-HOW: 215. cceeereserers ceerassy 210
Cuff v. Dorland......... ccc cece eee eee 67M. Wi 560 2 sv civesacsavsanin 802, 854
Culver'¥. Avery sccssuscswevese comveay ys 1 WONG: B84 sie Siew oot ba4 Sint avers 504
Culver v. Hollister ............ ..020+,-29 Hum, 479... 0.0... ccc cus ceeseeees 82

Curley v. Tomlinson..........ssceeeeee DDALY) 2B8 aie iia ceccivie g:dcaie eo a vile vite 260
xi Tass os Cases,

Page
Curtis v. Leavitt.........ccc00 ceceseeee 10 How. 481........ .02 206 wees 76
Cushing v. Vanderbilt.................. MeL IBLY, OUD cses. stesesipsies er dvarsia areca 1938, 461
Cushman v. Brundrett................4. BON, L206 in cs oncctinsrscantigovartnegnoraiono 2382
Cushman v. Hatfield................... DQFN. Nis GOD evenssare-siasriiaceveinnativvelmngpe OE
COVER V.. COBB care. gicceicisrivececergrateivargpsioretevs TO: FLOW: TA iscecssie aiedinr noises oreeres sine 225
Cuykendall v. Douglass................ 17 Week. Dig. 345.............. 60, 359

D.

Dabney v. StevenS............. cece eee 10 Abb. N. 8. 89......... cece eee 146
Dale Vi DACs, jiecuas wig enoncinrrivnscietissiteavece BENG Vic, CBS ii 2 .coiesciereters orcrsenaen ieexace 401
Dainesse v. Allen.......-...-.20002000- 45 How. 480... ...... eee ee cece eee 123
Dainesse v. Allen .........ccseesseeeee 4 Jones & Sp. 98......, ceeeeeeeee 333
Dalrymple v. Hannum,..... ..........- ALIN Wes CO cas caieerecorederanssesstonsoniers ove 227
Dalrymple v. Williams...............6. 63 Ne Ys, 86a cco stegensvgrssrecvetoars 543
DAY Vs BEY IG wassogiregrciencisipeieispeteis etaitisteces Mh Neg Ne LOD! seccnenacos atereig, dare giegiaveniets 179
Dambman v. Schulting...............6. GU) 29 ics eosic sir aes eteneiore eee 20
Dambman v. Schulting................. SB Ne Nic 622) oo cescseencisirse tenes 280
Darbee v. Elwood. .............00e0e 08 67 Barby. B59 siciessrcccewaretacreaieresisisiate 527
Dancer vi Duck Ohssycsescoreiqasrssrnitereleiearnacee A Jone AGT oisnastsicocerarserdawseecs 541, 543
Dart vs Gillies siszssisaistensioncianuaetenilsteneais 14 Jones & Sp. 560................ 835
Dart ¥; McAdams cscs ncveniwodsndeises QT Barbs 18 tong oemeaiessairlecsaxaes 6
Davidson v. Alfar0........... 00 ceeeeee SON, WY 2006' a: wets ewnaunsiets 204, 205
Davie v. Van Wie.........0... cee cee 1N. Y. Sup. Ct. (T. & C.) 580..... 133
Davis v; Borstsssscsissene sews axencv vas 58 Ne Vs 669: ess cen. orecexescvesx 225
Davis: v: Clatkiwe.:csaveesnctaresoesexe BU Ny Vr 628. axisiesuwesevesen wax 398
Davis vi Leopold s. scvc.ccnnsceawex 404 87 Ni Vs 620.cccss escarwiaww veee 279
Dayton v. Churchisiccccessosecas sea os Y Abb: Ni. GC. 860 sc sdccescasawaves 548
Dazel vi Rativacs ses socunoceecmesas nes { 1 a e ae = os ae 145
De Agreda v. Faulberg..............06. 3 E. D. Smith, 179........... ..... 460
De Agreda v. Mantel................... TAD De 180 ined scsseseec cee teoua a lans 170, 350
De Barante v. Deyermand.............. BL ING Ns BOO Sei scaiiesd soussarevstendocselaoseniens 225
De Bussierre v. Holladay............... BO LTIOW:., 210) e-c.cieieccseiaeits eas vomcsereieutss 275
Decker, He parte ..... 0... cc cece eee eee DCO WDD coi secussstaseetsupaneidctissaiceraivs 98
Decker v. Hassell...........c.0e ee eeees OG TOW: 028) 6 ccicics eecsccscre temarecdee 379, 453
Decker v. Judson........... ccc ceee eee DG ABO i scce easteprtnvsourwmaiae saree 114
Decker v. Myres..........00. eee ee eeee B1 How. 372 ....... cece eee 449, 452
Dederick, Matter of............... 206, TULING: We DOO nivacentcons@ameneens 228, 231
De Freest v. City of Troy.............6. BEN. Vi B80 e cce werecinslecewioinmrne tions 242
De Groot v. Van Duzer..............06 20 Wend. 390............. 00ers 187
Delafield v. State of Illinois............. 2 FRAN, 129) ss c.n seicssverancarssavaresorvaieiave 188, 274
Delamater v. Byrne ...........0.eeeeeee 57 How. 170............... 94, 102, 103
De Lamater v. Carman............ 0.06. 2 Daly) 18t ince ccvnosmosgeecaws es 483
De Llamosas v. Liamosas............... GREING Va O18 iste staciciss sintsrstenwr'sparaiterets 231
Deland v. Richardson .................. ASDENIO: OB isos -sietasensioreatarrarvrmences 285
Delaney v. Brett........ 0. ce cee eee ee eees BING Ye (8sccces axeiae sees 28, 199, 275
Delano v. Harp.........eesces eee eeves Be 7G stares ras otateiatalutararaiaveiwloreceid 188
Delaplaine v. Lawrence...........+...4 10 Paige, 602. vsisisemeoswee cw sion 87

De Lavalette v. Wendt........ccseeeeee 11 Hun, 482....... aetna e SRIS! aie 508
TasLe or Caszs. xli

Page
Delaware & Hudson Canal Co., Matter of .69 N. Y. 209:.... sais sleipte sieve 239, 312
De Leyer v. Michaelis................2. 5 Abb: 208% 0. cass issiniwenisesesecees 580
Delmas v. Martin ......... ie eves vRdads 89 Cali O05. 5 iss ict sa ceseirsioweecnien 535
De: Luce vy Kelly: oes. ssa ddeaweswee ve ve 5 Week. Dig. 32.......0.0e000- 3387, 502
Denniston v. Trimmer ..............065 27 Hun, 393. .........00e0- 428, 436, 444
Department of Public Parks, Matter of..85 N. Y. 459...........2:.eeeeveee 240
Depew v. Dewey..........25 ceeeeeeees BONY. GST aeced civ ees eed ves 224, 225
Derham v. Lee...... 0... eee e cece eee eee BIN. Ya. OOD ais ccs ond eure Srsseserateiere 280
Dering v. Metcale................0.000- NOINe. Vay CLs k0% Gasavs nae bow yeseets 110
Desmond v. Rice...........0. scene eeeee DT Hilt S30 i.gca vires given awa 447
Deutsch v. Reilly ........ 0... e cece ee eee 19 Alb, L. J. 162....... iste petscomrecs 243
Devlin v. Mayor. ....... 0... cece eens 22 How. 166... 2... eeeeeeeecees 57
Devlin y; Platts saa sceesee sails ni ae anen 20 HOW: 16%. 5 sessaeecewswmns oe ese 14
Dewey v. Frank occcscceessceestaviecss 62 Cal. B48 ccccwees sie eae weve 530
Dibble v. Camp... ........ se ceee ee eeeee 60 Barbs 150% 23 e500 ces ccconnanee’s 139
Dickinson v. Dickey .........-...000055 WON Ye 608s i.5icewssateaaeniones 347
ee ed See ae ar Mek BON seas 284, 281, 296
Diets v. Farrish. . 0... ..000esneeeee cones 11 Jones & Sp. 87... ... cece eee eee 6
Dillion v. Cockcroft......0.... 0.0 eee DOIN: Ya G4 Oise ccc cs nevesnesieee 185, 186
Dinkle v. Weble ....... cece cee eee ee eee GT OWS 86 esas aia wines vaaiewe es 97
Dinkelspeil v. Levy ...........0..0000 ee 12 BHU; 180 siesse scaisieieie ges vee eine 170
Dinsmore v. Adams..............-.0005 a 48 How. 244; 5 Hun, 149; 66 N. Y.
Direct U.S. Cable Co. v. Dominion Tel.Co.84 - LOS inde ens on esiees's ots 292, 293
Disbrow v. Henshaw..............0006: 8 Cow: 849 2s vied awsn candelpedonses 420
Distin v. Rose\2c es ces cc ccs caw aeereces 69 Ns Vu (eb ie ees sce eve maw deem 182
D'Ivernois v. Leavitt................... 8 ADD: 59.0 csexc sewers sous ec ees 302
Dixon v. Clow............. OR eawcatea acer 24 Wend. 188. ise ecdecaeca seas as 452
Dobson v. Pearce ...........eseeee eens 12 N. Y. 156, 164 ............... 8, 12
Doestader v. Sammons .............-00. AUN 4G io cee cccsantceve marardiecemnsiacenae 6 490
Dodge v. Mann...........-. 0c cece eee SOON. CY O48ics ace aaceces saa 337, 504
cee. OE NEON bi Bppetty ANA adecchnokniaabed: 526
Dolan, Matter of............. 2. cece eee BSN. Ys 209. ewido asa wares sas
Dolan v. Aiétna Ins. Co................- 22 Hun; 896.0 wncediawcawedsweaces 541
Dollnet vi. Lint@se. sce. sce ea ee o9 sees 6 Daly, Uae eck esse vena see ws eveee 843
Donohue v. Henry..............06 cet :4.E, D. Smith, 162.............0.. 447
Donohue v. Hicks................. 1.55 21 How. 488.5. sicecea seasacwes 319
Donovan v. Vandemark..............5- 22: Hin, 80? tiscecewwevsvevssaa ws 481
Doolittle v. Dininny................006. OL Ne Vi B00.. 2 sccnesg aniennsieeains 94, 98
Dorlon v. Lewis... ...........e cece eeee TU WAG We V8 2 si5. midasiidearnawieee hie 58, 61
Doty v. Carolus.......... cc cece eee eee Oh Ne Ye O4D ea ssiaveue asrevanalivansionnieve 174
Doud v. Guthrie..............0 ec ee eee 13. Tl. App. 658..00.0000060 ceeecees 542
Doughty v. Crogier ...........0eeeeeee DAD AU cy comes eyes 447, 451
Doughty v. Hope. ........ eee eee eee eee BDEN0, O94 wisiscccweieaaiane seek eee 183
Douglass v. Douglass............000000e Y HUD, 222 aswiadedeaeais sees eves 129
‘Douglass v. Douglass..........eeeeeeeee 11 Hun, 406 cicsece ces ccccer ees 1838, 188
Douglass v. Haberstro.........sseeeeeee 82 NY Geis emigaaseteve ees 806, 345
Douglass v. Haberstro.......ecseeeeeees 62 How. 29... ......0.6 meen Ss 612
Douglass v. Reilly........ececseeeeees 0-6 Week. Dig. 148........ccecneveee 414
xlii Tasie or Cases.

Page
Dow v. Darragh .........ccceeeee ee cee ONION: SOT nano sisisiacw aye 186, 255, 493
Downing v. Kelly.......... ec cece eee ASIN: Vs 4B) ce cn'nieaa ayialeaeiend 284, 296
Downs v. Jalowack..............6. sees 66 Barb. 458...........ecceeee cease 186
Downs v. New York Cent. R. R. Co..... OG Ne Xi 6643 scons schiaadneeens 282, 286
Dows v. Congdon.........cceee eee e eens 28.N. Vi 182s wccsscatdecsweaces oe 229
Dresser v. Brooks...........0sceeeecees 5 How. 75.........06. 101, 265, 268, 430
Dresser v. Brooks..........--..-002e08- QN« Vs S00 ssc os ces e sees ves eaters q
Dresser v. Van Pelt............ .ss000- 1 Hilts 816 ssc ccss sais ac eee ce 5 0% 54 449
Drucker v. Patterson...............0005 O. Ailts, 180s adcisacieele casa teiew aise 8s 359
Duden v. Waitzfelder.................5 2 Abb. N. C. 296......cc cc ceeeeese 501
Duff, Matter of.............c cece eee 41 How. 350...... 215, 216, 217, 806, 345
Duffany v. Ferguson.............0ee0 ee 66 N. VY. 482... ... ccc cc eee seen eee 182
Duffy v. Duncan............. siieiesoiaieiaugiens 82 Barb. 587.........sseceseees oo. 476
Duffy v. Masterson .............00e005- 44 Nw Vo O5T cca aesies vaesaiec ceed 280
Duffy v. Thompson..............-..086 4 E. D. Smith, 178................ 447
Dumesnil, Matter of.......... cceseeeee BTN Wis: O1 Vinsasasais caters -catewa eerie’ 29 1
Duin, Matter 0f... 2.0.0 cesses cesses eseeee 1 Dem. 294..........cccseescces 40, 41
Dunbar v. Hollinshead................-- LO" WAS: B05. io:5:ss saan inisg-vieteeere sates 529
Dunlap v. Patterson Fire Ins. Co ....... TAN We VAG oe cae ceisces oietis se 219, 228
Dunlop v. Edwards...........-.eeeeees SUNS Way BA oe cocsguunsrcs ak ea ouee'ele 237
Durant v. Abendroth ............. 0005 GOING We TAB tooiasieiciee ag. o's cookie alee 147
Dunseith v. Stark..................000 3 Law Bul. 42.............00e eee 487
Dusenbury v. Dusenbury.............5. 61 How. 482.2... ccc ee rece eeeeeee 501
Dwight v. Enos............00eeee cee DING, Vs 410 acc ewerewiswreeisitide sia ses 7
Dwight v. Germania Life Ins. Co....... SANA UY. 498. wesc vewiawseds sees ane 227

E.

East River Bank v. Hoyt............... 22 How, 478.......... ccc ee cece eee 508
East River Bank v. Kennedy............ A KROVOS) 279 osc cieccidwaaiewiaeeraer 296
Eastabrooks, e@ purté.......sseeceeeeees DP OOW Ole saccsersnaransatanaceas 33 98
Eastwood v. People...........eeeeeenee 8 Park. Cr. R, 25........ cece ee eee 543
Harle v. Harle.......... cece cece eee 17 Week. Dig. 60..........000e eee 101
Eaton v. Erie Railway Oo.............65 Bo INS WOE ores dieia ciate seine aheharetaveree 199
Dy Bi BCs Bacevanse seuss ts saan 28 Barb: 299i cts sivvete o's siete teedie:s 34
Eccles v. Darraugh........6.--.+eeeeee 14 Jones Sp. 186 ........ cece eee 182
Edmonston v. Edmonston............... 13) Hun, 198) oseeudeds waives cei ee es BRI)
Edwards v. Drew.......-......cee eens 2 B. Dy Smith, 58 nccccisiesie ceases: s 453
While v;, Haller .icc coccnecawsieesave sores 6 Bosw. 66li ese. sevweadesuiaeaeeys 340
Ehrich v. De Mill.......0 22. cece eee eee LON: VB bcriwduwe- ieGaguns in’ 353
Ehrman v. Rothschild...............66. 23 Hun, 278.000 ccs ceaw eis 46, 335, 337
Bich v. Taylor.....-..eceesee eee eee eee 17 Minn. 172 0... . cee ee eee ee eee 534
Fiiseman v. Swan.......-..ee0. eevee eee 11 AbD: 122 swxcead as aeesineire ees 110
Eldridge, Matter of....... 2. -e.:.05 vee 82.N. Y. 161. ccc ccereawees 222, 281, 238
Eldridge v. Strenz... 2.6.0.0... cece ee eee 7 Jones &G Sp. 295...... 0... cece ee 132
Eldridge v. Underbill............:..04-- 17 Hun, 241........ ...... 74, 118, 422
Elias v. Babtock..........e cece nsec eee 12 Abb. N.S. 288..............08- 59
Elliott v. Buckland............ ec ee eee B87 How, 71... .. ccc cee cc ee anes 76, 77
Blliott v. Lewis...........ee cece eee eee 16 Tin, OBL. cise stone oop eetas tates 49
Elliott v. Peirsol........ cseeeee ceeeees 1 Peters, 657...... Seales sae eee il
Taste or Caszs. xliii

Page

Ellis v. Howe Machine Co...... veveeeeD Daly, 78...... siwisraie wedewsass s B48
Ellwanger Vv. Fish...........eeceeseeee GON. Y. 651..........0056 Biba ienae 286
Elson v. Murray... .....sceeeeeeeseeeees Oi Hun, S8B ii os cawieck eens 111, 480
Ely v. Bardin........... 0c cc eee e eee ees 12 Week. Dig. 205............ 00008 46
Ely v. O'Leary..........esceeeeeeeeeees 2E. D. Smith, 355...... 22.2008. 449
Emmons v. Wheeler............22000008 S Aun 4/45 5 sisi sissesverssieiesoe dees ve 8 499
Englis v. Furniss. ............sceeeeeees B ADD. 82 oo ovis cocina eneareeeiewne vee 168
Ennis v. Broderick. ..............e00008 13 Jones & Sp. 92.........eeeeeeee 501
Eno v. Crooke..........e0ssecccneesaes 6 How. 462.........ecesseeenes 850, 357
Enos v. Thomas..........sseeeescceaees 5 How. 361, 366...........c0e sence 2
Ensign v. Harney...........ceeseeeeees 15 Neb, 880... 20... . cece cece ween 542
Equitable Life Ins. Society v. Stevens... .63 N. Y. 341.0... 0... cc cece eee ee 217
Erben v. Lorillard. ..........cceeeee sees QIN, Wes 299) 3 cvs ocaveadavaiai™ acaseasie waesecie 177
Erie Railway v. Ramsey............000. 10 Abb. N.S. 109.............00- 492
Erie Railway Co. v. Ramsey............ 45 N.Y. 687...... 00. cc cece ee 218, 238
Erwin v. Hamilton ...............2000- 50 How. 82..... 2... cece seen neces 538
Essex Co, Bank v. Russell...........-.. 20 Ne Vs GTS, siccciniawig dieksacae emo 1380
Estus v. Baldwin.........cceeeeeccccees 9 How:80 se see cas oeleeeiwete ove 191, 193
Evans Vi Harriss cas cwewecewicie oe sas 15 Jones & Sp. 866................ 102
Everett Vv. Parks «5 ccvccsssswscvawsw sees 62 Bath: Qsceexsiwevecwsacecvess 10, 448
Everson v. Gehrman....... 2... seeseee SADD; 4183 occ ci cea ac uses deewewaes 483

F.

Fabbri v. Kalbfleisch..................- 5ONy Ye 28 se secs oiecwesavdieee 279
Fanning v. Lent.............ce eee e eee 3 E. D Smith, 206................. 10
Farley v. Ly dGy «...00600%ece ce ice cae vine 8 Daly, 514.............06- 126, 404, 412
Farmers’ & Citizens’ Bank v. Sherman...83 N. Y. 69.............. cece neues 531
Farrington v. O’Connor............-0005 6 Daly, 209 aac carsrasa nce saeieieeiada sien 405
Farnham v. Benedict..............00005 29 Hum, 44.......... cece eee eee 809
Fash v. Byrne8.......0.cccseceee cone eee TRAD. 12. ces eters sictcscremeieiiaes 540
Fay v. O’Neil....... srelacdehsy aise cia letetelans BOING Yeo DIS cisice oii ste s desniesl gorgectai spina 182
Fearing v. Irwin... ..... ee csee cece ees DOIN. Vs M86 vies cee casewncaanuade 348
Fenno v. Dickinson ...... .......eeeee 4 Denio, 84..........cccseeeenees wh <2
Ferguson v. Crawford............0s0005 10 Nu Vo 2580 65 veces sciee sa saancas 11
Ferguson v. Hamilton.............0.065 85 Barb. 472.0... 0.0.00. ce eee aee 183, 188
Ferris Vi Perriss..i6i03 sa. sadeassevnwecwe OGN.. Ya 6B. 2 ke ce sea ee see aig Se 225
Fiedler v. Darrin... ..........0eseeeeeee 59 Barb. 651.......... cece eee eeee 354
Field v. Leavitt. .... 00... cee ee cence 5 Jones & Sp. 587....... Laie baenae 90
Field v. Stewart ......... cece ee eee eens 41 How. 95....... cc ese eneeeee 220, 309
Fields v. Moul.........cccee eee e eee oees 15: ADD eG Gin wissen y covase baw eee ews 379
Fiester v. Shepard... ......... .seeeee Q2ONe Ye PO hiss cnretenaes waenpetneicle 188, 274
Fiester v. Shepard... ....c.eeeeeeeveaee 26 Huns, 183) ie vesesea aoe ve Sees 382
Filer; Matter’ offs 6 iss e0s cise asasncenses ID Abb. Nw Ci ITs wsecceanee ves xe 95
Finch v. Parker............0.005 inane 49 Ne Ve De esasvawesweanataneets 280, 842
First Nat. Bk. v. Dana...........0.0005 WON Yo 108 cceesvesassecas aa aeats 186
First Nat. Bk. v. Fourth Nat. Bk........84 N. Y. 469......... wesc eee 476, 480
First Nat Bk. of Plattsburgh v. Heaton..6 N. Y. Sup. Ct. 87............ 824, 525
Fischer v. Hope Mut. Ins. Co........... 8 Jones & Sp. 550........ bao eartraiesie 244
xliv TasLe or Caszs.

Page

Fish ‘Ve Skutt, ccs scavianwcnik oensions 21 Barby 888.46 sess ccdavecewe races 449
« Bish v; Thrasher ssviexnsnaecsdeacwraees 21 Hun, 28 iecvscecetesvencadane a0 364
Fish vi W000: i: sss ovesves vow vade des 2 Abb: 410s. ccasedeecues vessels ces 178
Fisher v. Bishop ....... 0... eeeeeeee eee SO Tin, 112 secs sanwsiews ies s< 476
Fisher v. Gould... ..........00ee0es Teh Ne Mis ROB aos els sacs ba eeseuissasy 293
Fisher v. Hepburn. ........-...... 0000 AB IN OY ¢ Fes caiee- snore paaeg ecareanacn ate 38, 218
Fisher v. Hersey..........0.00eeeenee ne TSN: Ys B80 iiss cd necas ea deetes eas 229
Fisher v. Langbein..............00. 000 SL HOD; 272s os ccc sie advosiaerareieianentciace’s 484
Fisher v. Merwin ...........eeeeeeeeee 25 How. 284.......ccceeecseccvece 359
Fisher ¥: Stilsonivn csc cuiv-veaacavaen se 9. ADDy B8scenaceu nd uematnceun amides 347
Fitch v. Devlin ........ 0.0. cc cece cece nee 15 Barb, 47............ 11, 414, 441, 447
Fitch v. Livingston. .............0008 . 7 How. 410..... Se nie bea lease ea ols 1c 173
Fitch v. Mayor, &. of New York....... 88 Ni Vs 500° sees ccs ecioerces 168, 169
Fitch v. Rathbun .. ...........eee eee GL NG Va B19) nese coer ere ee sou sues 275
Fitzgerald v. Quann,............00 eee 62 How. 881... 2.0... 02 eee eee 502, 507
Fitzpatrick v. Woodruff................ 15 Jones & Sp. 486...........66- 46, 335
Fitzsimmons v. Baxter.............. 04. Oo Daly) Sliccscevssvsagsa esei sce 435
Flake v. Van Wagenen...............4- BANCY,. 56.3 ccas sersees seen 9, 201, 202
Flanagan v. Madden... ................ 8LN. YY. 628.cccnccee aveveessescs 286
Fleischmann v. Stern.............0000 0 9O.N. Y. 1102 ssesiseccsaaaaes 227, 358
Flemming v. Hollenbeck ..............- 1 Barbi Othe asacks mie Saeaat oe 525, 526
Fleming v. Smith................ 0.05. 44 Barb. 554........00 cece eae 377, 505
Flinn v. Equitable Life Assurance Society.18 Hun, 212. ............2..00000- 481
Foot v. Zitna Life Ins. Co.............. GI IN We Di Liseis cesecd oaieces Gh dare SES 353
Foote v. Beecher. .........0..c cece ceeee 78N. Y. 155.......... 175, 176, 286, 518
Foote v. Lathrop.... cc... eee eee eee eee 41 N. Y. 358........ .215, 220, 224, 226
Foote v. People........... Headed ah oases OGIN, Ye B2bins dinemeddew cians te, 292
Foote v. Roberts ....... ccc cece e eee eee TARO: UR araiwint heaved eaawace na adn 166, 342
Foote v. Sabine. ......... 0 eee eee eee eee 19) JOWHS: D54 owiehe es eteaseee ceed 186
Foote v. Schneider .........-....eeee ee 5 Week. Dig. 468.............. 107, 108
Forbes v. Willard..... ..... cee ee ee eee 54 Barb. 520..........006 cence eee 365
Ford Vi Ford gcsscecapeawseat yp eaasins vas 35 How. 321 .......... sect ostueal vn Soa 309
Ford v. Holmes............ Fe winias Beet. ois Gl Gai -A19) cacy cee Sestnceeneemnes 542
Pord:ve Tumer gacsevcnewadeiadeanawas Der, 684ocwesistincenwea ene ons 80
Fordham v. Hendrickson............... S4 NG Ve 65 oa ocacavce atyasea's 276
Forrest v. Forrest......... ccs ee seen eee 6 Duler,. 109 sex ssi suse cade nee eee ea 177
Forrest. v. Forrest.........0ees scene cease 20) Nis Xe DOL. eee ces vie sO se Sass 175
Forrest v. Havens...........0.0e cece eee BSN Ve AGO a5 visto sara eee valdaaeacss 73
Forster v. Capewell.......-...eeeeeeeee 1 Hilt; Wena ws co eventsegeeucsnees 441
Foshay v. Drost........... cece ee eeeees 4 Boswy 664.6065 008 ee costes aeseess 310
Foster v. Cleaveland..........seeseeeeee GHOW, 208305 sce sees ssueseee eae s 490
Foster v, Princeisis ccc saas coeeces cece: BADD: 407s cece cee cs eteee dass cae 32
Foster v. Wood. ....... sees eee e eee eee 6 Johns. Ch. 89 ...........00e ee aee 13
Fowler, Matter of..........cc: eee eeees 53 .N. Y. 60........ Siveekyeieeewee 238
Fowler v. Kelly.........0.00 seeeeeeees 11 Jones & Sp. 880..............0- 525
Fox v. Decker. v0. cec.ceds seeaaecnes .8E. D. Smith, 150... ............ 449
Frecking v. Rolland..............00.00 OS) Ni Ve Beer esses sees oiaee wads 185
Fredenburgh v. Biddelcom............- SOUN. Y, 19Giaw suite one ss cease 280
Fredericks v. Taylor..........ceeeeeeeee DOING Vie DOG vieiaicsucdsasacosas 218, 224, 230

Freeman v. Barber..........seeeeeeeees 1 Hun, 488 ....... Reha essa wgeasa coat 298
Taste or Cases. xlv

Page
Freeman v. Coit....... sxiebeeenweuies oNe3 96 Ne Vi68 pveces iw atavanssenkes 477
Freeman v. Falconer...........ee0eee00s 12 Jones & Sp. 579.22. 6... eee eee 359
Freedman v. Ogden.............eeeeeee BOGEN. Vs 105. osahcsnahie aateeae cack 16
French v. Powers. .........eeceeeeeeees BOING WY: 146 paicoctneaceyaseteatee 140
Fretwell v. Laffoon. ....... besbiarels ayergie TS MOs 2G i cies sisesie gies aigie's) vee ste ever 580
Fritze v. Pultz....... 0... ee eee eee eee 2 Civ. Pro. R. 142.............. 448, 455
Frost v. Smith... ...ccceccceeseesceeees TBosw 108 saeniccuntencvte ouselseals ala a 334
Fry v. Bennett....... ss Shia teladeie ative. 6-<.ne'e's' 16 How. 385..... 9 ........ 59, 60, 117
Fuchs v. Pohlman ......c.cccceceseeee 2 Daly; 210 cc sevceas cs veswsa geld 59, 456
Pulton, 22 parte... cece cece cece eens Y Cow. 484. e600 acveiaresniessuays 98
Fuller v. Wilcox...........ceeecceeeeee 19 Weend: 8515) .¢ a sscacecies tases 450
Fuller v. Brierly...........cee cess ences 06 Hun, 40 acacsese sta wiaaiacs 379, 444

G.

Giles: sew, Vote Pent i He lees Bs eg ay Bites as 226, 284, 806
nae ve Nr Te ene LBB Haw. B65 2. cencteeniatsentic 525
sar sient aoe ea &H.RRR. his AU Ds canasiladen dak nkainenares 344
Gallaudet v. Stenmetz...............4.. 13 Jones & Sp. 289 ......-......... 145
Gallaudet v. Steinmetz ........ ........ G6 Abb. N. C. 224.............0008 126
Gallt v. Finch... .....ccccccceeseaccecs 24 HOW 198 sci -sins tase vs daw's ve iene 57, 61
Gardiner v. Schwab.............--.0065 34 Hun, 582 ....... ik acres teniaiateretats 128
Gardner v. Barney..... esa eS Gmumiutess 94 Hows 467 2 aus doesn veaiwe’ 112
Gardner v. Kimball........... seve ciate BS: NW 208522 je cic das aeciaeuseie 541
Gardner v. Smith ..............0000000 2 Civ. Pro. R. 420........-..... 455, 457
Garfield Vy Krkic csesastacteaciweaie owes 65 Barb: 464 53 cc: svaswsseomenvess 122
Garling V.. Lads: s.ccescccsacescems vss 27 Han, 112. oss sccseis aes vee sarees 471
Garner v. Harmony Mills............... 6 Abb. N. C, 212............ 50, 62, 304
Garner v. Mangam..............65- 0005 14 Jones & Sp. 865 ................ 511
Garnett v. Kirkman...........-......4- WA Miss: OAs sic5.632. 02 koe trees bd 533
Garnsey v. Knights............-.... Spt SCY R09: sao koran leattiseaiaaan de 65
Gasper v. Adams............ seeese eee. 24 Barb. 287....... Syomecaes ise hess 168
Gates, Matter of.......... 0.0. cece eens 26 Hun, 179 2 cccasanadcsiueeee ees 2, 62
Gautier v. Douglass Manuf. Co.......... 52 HOw: 825 ccsiicccusacerr eevee 524, 528
Gawthrop v. Leary.......-..0-..eeeeaee ODaly: 858) 6 es eee ee lstoasinen een 584
Gawthrop v. Leary........--. eee eee eee BOUIN: We 622. less enw pew sea big aaa’ 353
Gelhaar v, Ross... <csisseseesuneeoaas A Hilt, 1192s cca yams asensee sass 447
Gelston Vs Moyts.cs.scwnsewsccwcdece ves 13 Jolins. 561...52 s.sisvei sees sewn 199
Genet v. Davenport ..............+-..-- 66 Bath: 42. os coteg as te sartacreaess 163
Genet v. Davenport ........... 0. ee eee GOLN. Vic19G esc s eer eonees dak sees 19
Geneva, Ithaca, ete. R. R. Co. v. Sage...85 Hun, 95.... 0.2... cee eee 524, 525
Genin v. Chadsey........... 0. cece eens ID ADs O9ie as ccceke head wet gacete 105
Genter v. Fields........ccceee seen ec eeee 1 Keyes, 483 ..........00.02005 -70, 111
George v. Jennings ...... .......-..66. AH, 0 2..o.. ice Gee een neers 502
Geraud V. Siagg... ccc cee eee cece eee 4 E. D. Smith, 27..............00. 351
Geraud v. Stagg........ jaimeidiouane: Aisrowrehio 10 How. 869 jonicagsedek eee acer ee ee 35
German Am. Bk. v. Morris Run Coal Co.74 N. Y. 58.2.2... 0.2 eee ee eee eee 225

Gernon Vv, Hoyt......ecceeeeeeeeee cone 9ON. Ns O8 lsc aeesies sas va aera 275
xlvi Taste or Caszs.

Getty v. Spaulding...................8 58 N. Y. 686....... isos wosares sas
Gilchrist v. Rea.......... cece cece eeees 9 Paige, 66.......sseeeceees aes 6 ete
Giles v. Austin. .........ceceeeeecne ees 2 Jones & Sp. 540... ...cccseeeneens
Gillespie v. Torrance ........... .seeee 4 Bosw. 86..........seeeeee scaialoren
Gillotte v. Jackson ..........eceeeeeeees 9 Jones & Sp. 808...... ae
Gilman v. Gilman..........ceeeeee eee 8 Hun, 22......cceceee Sys biesieass 40,
Gilman v. Gilman..............0000e0ee Bb. Barb. G91 vescccaieirnsne. oaoiate
Giraudat v. Korn ............. wanmacnesis 8 Daly, 406.......cs0000 ecasvceees
Glackin v. Zeller. ........c. cc ee cece eee 52 Barbs 147. nine cecoeetwe saci
Glasner v. Wheaton...............00005 2E. D. Smith, 352........ 418, 446,
Glendenning v. Canary.... .........-5- 5 Daly, 489............006 ita cleutee
Godfrey v. Moser.............ceeeeooes { 66N. Y. 8 an ma a0, aoe
Goldberg v. Utley............eeceeeeeee 60 N.Y. 4870. os wineeecisviesiesse 220,
Golden v. Knickerbacker................ 2 Cows Bliss isvscscsscticsice casas
Goldschmidt v. Goldschmidt............ 15 Jones & Sp. 184.............66-
Goldsmith v. Obermier.................. 3 E. D. Smith, 121................
Goldstone v. Sperling ...............-6 99 Cal. 447266 cnscwsecnsnannses ees
Goodridge v. Connor...........-..-..6+ 66 How. 148............. aise wis sate
Goodell v. Harrington ..........6.6++0676 N. V. 547. occ eee eee e eee e eee
Goodwin v. Bunzl.............eeeeeeee 6 Civ. Pro. R. 226...............4.
Goodwin v. Conklin................... 85 N. Y. 21...... 234, 281, 294, 352,
Gordon v. Hartman.................... 19: Ni Me QM a asi secaveca Severe seaparecetbe sents
Gordon v. Nat. Shoe & Leather Co...... TANG Ys 4672s ccc disteF am ecmwcsisei’
Gorman v, South Boston Iron Co........ BO) PUAN, Gis. ss.sjeuscaveveceiorasavarsigras ocbraie Sone
Gormerly v. McGlynn...............685 SAN W284. oe are aiet iaesaveew es
Gormly v. McIntosh..............00008 22 Bath: QTL. .cs.262 dare daccaares 1, 2,
Gopsill v. Decker...........0..eee seen 4 Hum, 625....... cc scence eee e eee
Gottsberger v. Harned..............0005 2E. D. Smith, 128................
Gould v. Moore............6. cece seen 8 Jones & Sp. 887...........0. 000
Gouraud v. Trust... 2.22.0... eee eee eee TPG O18 ese scsrewoeavamece oaaws
Gove v. Laurence.................2-06- 8 Lan. 80s owecks Goeteseceeweiees
Gracie v. Freeland ...... bisighehetichersledy anaes MING WMO 28  erctets are v aracceoniscueve anges
Graham v. Linden................. 2... 50: Nig Ve OA Tose ee ones dos eeatse vate
Graham v. Myer. ............-.. ee eee eee 38 Hun; 4896 occ cileeisnxing as eieewas
Graham v. Sclover..........-....2--606- 46 HOW. M08 ccs See a ce euoes
Granger v. Craig...........0..06 ceeeee SONS Wis GID saetscatisatecaissteisieey 83,
Grant v. Griswold. ............0. 0 eee BOING Ws 069 se caters, ecient 224,
Grant v. Hubbell .:.................-2. 2 Jones & Sp. 224.............005.
Grant v. Morse. ......... eee ee cence ees 22 Ni Vn B28. vessieee gana eae 174,
Graves v. Brinkerhoff .................. 4 Hun: 200s 6 ieee veces saad dees men
Gray Vi Green... ic cc ccsecceeeasesee ese 14 Hun, 18.00 ss 0ecswaden soswascas
Gray Vv: Viskscn snsacwedsten vecwseas anne 63 Ne Ys 6800050256 vecseveerveves
Gray v. Hannah ...........:e cece ee eee 3 Abb. N. 8. 188............0.000.
Gray v. New York Floating Elevator Co.13 Week. Dig. 140............. 3387,
Green v. Bliss.......... cece eee eeeecees 12 How. 428 vsscccevedadasctwesak
Green v. Disbrow ...............0.0005 OG IN. WeB84 e558 tsi ccere acne aeons
Green v. Fortier........ 022-2202 eeeeee BONG Vi 640s ois cccoiieacciecce name anaios
Gregg v. Howe........0.cc ec ee eee ceees 8 Jones & Sp. 420.......... 126, 127,
Green v. Hudson R. R. Co....... se@eeen G2 Bard. 26. cso:bs wesc sade chernee ous

538

19
453
532

853

186

404

231

34
289
349

469
502
543
175
282

17
TasLE oF Cases. xlvii

Page
Green v. Milbank. ........c0.00..eeeeeee 8 Abb. N. C. 188..... slaviistare ds ooee 108
Green v. Telfair..............eccee eens 11 How. 260........... dipeeei seit 5388
Greeti V. Whites c.eaccsis sieaeweewe sees BTN] Ya 400s 00.04 essjawiniengiwienes 286 182
Gridley v. Dygett......... eRe Ree EK SS @ How. 280.0 66sec casomedsavemawas 200
Griffin v. Cranston. ............ 20 eee eee D Bosw. 6084 sisiaeisdtseesdenss 302
Griffin v. Sutherland................... 14 Barb. 456 onc. caecssieasaacawen 6 102
Grimwood v. Wilson...... Morinda ceed 66 How. 283..........- Deseiine ao 94, 114
Grissler v. Fowler. .........00..- eee eee BO ING Ya O15: « soc wiivaidiowss ewieieaavres 23
Griswold v. Van Deusen ............... 2 E. D. Smith, 178.............06. 419
Groativs Giles a schee cen eueesaceareeacce: OLN. VY, 48 lice svdercdyeweresns 184
Grocers’ Bank v. Penfield............... PUD, O79) ete os s'eg bie Sieis ecweerace 834, 342
Grunburg v. Bluminthal............. .- 66 How. 62... .... 0 cece ec ce ev eee 22
Groux v. McGrum............. ese ee ees Wing 8 axiesenecue iiss aw gene 471
Grow v. Garlock... 2... cece eee e eee 29 Hun, 598...........68. %6, 78, 79, 277
Guernesey v. Miller...................- 80 Ne Yi WSlivicmens ediciones 3 170, 353
Se ee eer ee ee {28 Hun, 497....... 63, 117, 118, 420, 429
Gusthal v. Reinhardt................... 1 Law Bul. 36..............---..-% 101
Guidet v. Mayor...........0seeeeeeeees 5 Jones & Sp. 124...... seeeceeccee BOD

H.

Hackett v. Belden...........0.+ shiaaess MTN. Y. 6246. ccc cvs sieenwes 7, 199, 212
Hackley v. Draper.............e00ee0ee 2 Hun, 520ii24.caccinssisccieca adios’ 173
Hackley v. Draper...........sceeeeeeeee GOIN: Y. 8835 scecns asietteaant.ciccielonices 12
Hackley v. Hastie........... 0... ceeeee 3B Johns, 252....... ccc cece eee eeees 540
Hackley v. Hope .........seceeeeecenecs 4 Keyes, 128........... ee ee ee eeeee 32
Haddow v. Lundy ............00ceeeeee D9. Na. Yar de0 vissogierernaaaccinnaieere ottas 167
Hager v. Hager.........6. ceeeeee enone 88 Barb. 92 sicccsciesicisegidcine again 537, 540
Hagaman v. Burr.........e.eeeeeeeeees 9 Jones & Sp. 428.............000 186
Haggart v. Morgan.... 2.2... ee eee eens DANG Me 10D eeieiecc ts eae saeco ed 184
Hahn v. Van Doren..........0..eeeeeee 1E. D. Smith, 411............. 452, 470
Fale v. Clauson.......... 02 e eee e cece es GONG Xr B89) see pscea scales eRe 229
Hallv:. Brooks. sccccccciessce sine soev es 89 Nu Yu B8is 05 ccsecaececs cee swens 32
Hall v. Emmons ..............00e ee eeee 40 HOW: 187 2 oscseic a se cas testers 484
Hall v. McKechnie............ .....- ..22 Barb, 244........... Wale Saar ate 447
Hall v. Sawyer... cece eee ee eee ee care AT Barby L1G ec 3k cece cmiesinie alain 420
Halpin v. Third Ave. R. R. Co.......... 8 Jones & Sp. 175............ «.330, 503
Halsey Estate, Matter of..............-. 93 N. Y. 48...........221, 287, 238, 382
Halsey v. Flint ......cccccceeeeeeeeeees 15 Abb. 867 ............e ee eeees 82, 350
Halstead v. Halstead....... ......-200- 2N. Y. Supt. Ct. (T. & C.) 673..... 476
Hamilton v. Deane..............2-.505- SSW. 290i 65 oes sees ees cence ews . 14
Hamilton v. Eno. ....... 2. eee eee eens BLING Wc 11 Giecss atecs sd we-aa’e uave's apavers 183
Hamilton v. Third Ave. R. R. Co....... 9 Jones & Sp. 588...........000ceee 243
Hamilton v. Third Ave. R. R. Co....... BS Ne OYs 850% ve vin veteneneewmaciens 125, 282
Hammond v. Carpenter ..............-+ 29 HOW: Biscseicenvscsss sesceees 98
Hammond v. Schultz............0-2e00 13 Jones & Sp. 611................ 336
Hance v. Cayuga, etc. R. R. Co......... QO IN: OY PADS 5. ccansisiaadenare-aaieiesae a4 451
Hancock, Matter of ........... 225.5055 20 TU 18 vig sas sea aisremne cic eens rereway 398
Hand v. Barrows. ......-...ceeeee ee eeee 15 Hun, 481......... wet eesnewienG 310

Hand v. Supervisors of Columbia Co....31 Hun, 531............ aati Swe 62
xlvili Tas_e or CasEs.

5 Page
Hannahs v. Hannahs.................4+ 5 Hun, 644... ...... bineee Baesieievean 398
Hannay’ v;, Pell seisc dcitnauersenes aees'sicieres 8H. D. Smith, 423 ...........0006. 354
Hanover Fire Ins. Co. v. Tomlinson..... 68 N. Y. 215.......... 219, 236, 293, 306
Hardy v¥: Seely rac osaesves sacdendsexess BS ADD 108 ccscae arene wuss cee ee x 453
Hatris‘v: Browts.csisss sess ese esas ia es 29 Bunya: vies sstes we wearoegieekcce 22
Harris v. Burdett .............00000-00- 73 N. Y. 186...... 46, 288, 234, 281, 352
Harris '¥., Clatky 2. 05 :)s0.d00csnaieaee 0% 4 HOW: 18. oiiissecrwca wie ences as 210
Harris:v., Clark...000 5s 000 secs 0 oes cae eed 10 How. 415.............200-06- 11, 321
Harris v. Hammond...............6.0-- VSO Wie 128 ecco se ssrcdieswisdsoe Basa siesdre se 309
Harris v. Supervisors of Niagara Co.... 38 Hun, 279..........00. cece ee eee 366
Harris v. Tumbridge.................05 BO Na Yi GR iu tenant dad dd oieie acaciinaey 168
Harris v. Waite............. ce eee ee eee 54 HOW VB eit occ eos srscaie-wnavoaraiore 545
Harrison v. Swart.........e. cece ee eee 34 Hun, 259. .......... eee eeee 472, 475
Harold v. New York Elevated RGR. C6224 Huy 84 ccaiewccciewawsieave oases 344
Harmon v. Hope............eeeeeeeeees OT NA Ve WO nace eye sie nee 109
Harpell v. Curtis..............eeseeeeee 1E. D. Smith, 78.................. 449
Hart vy Phomasitnccwaeiosaweas eeewiads 61 Gas B20 esses ene dis oe oe 533
Harti va Wanless vvsiis vase sitio ak steely OO ING. Y BSL cess ag sees esis where 276
Hartwell v. McMaster ..............-05- A RGAE, B89 ciseswe's's 3's vee oa e's ees 129
Harrington v. Bigelow.................. 2:Denio; 109. .caasvestctcevecsgs's 525
Harrington v. Bruce.. ............0006 84 Ni Vs 108.0208 csc ewes ccs ex sex 224
Harrington v. Robertson................ TUN. Ys 280 cesses os steaeseeees 225
Harrington v. Slade...............5.05. 22 Barb, 16lscs save cease vesvesses 309
Harrower v. Heath................00085 19 Barbs 832 2% esssseesveusx sexs 166
Harvey v. Rickett..............-..2.005 16 Johns. ST iss cece csc caceseevees 541
Harvey v. Van Dyke..............020 66 How. 396...............56.. 428, 436
Hasbrouck v. Kingston Board of Health.3 Keyes, 480...........-...-00ee 220
Hatch, Matter of...................004- TEN. Ne GU hiacccccidinin eoeeeictees 224
Hatch v. Central Nat. Bank............. TOIN:. Nev AB io scaseseaRuaeciemres esac 226
Hatch v. Fogerty .......... ees eee eee M ROD 2 ASS oissco:siacoce Satta sas greveats 1238, 129
Hatfield v. Macy...........-.00-. ee eee 52 How. 198.......... 524, 525, 526, 530
Hathaway v. Russell..................- 14 Jones & Sp. 108........... 0... 304
Hauselt v. Godfrey.............. eee eee 8 Civ. Pro. R. 116.............0-0. 484
Havemeyer v. Havemeyer............... 11 Jones & Sp. 506...............- 177
Havemeyer v. Havemeyer............... 16 Jones & Sp. 104....... .....20. 482
Hawley v. Davis..........6...0 cece eee DS -Hany 642s. 5 sss csc eeee tec ee ee cus 432
Hay v. Douglass...............0.. 0 eee 8 Abb. N. 8. 217..............206, 177
Hayes v. Kedzie... 2.00... 0c eee e cece eees PAPI, B97 gasses son ee eeing oe begins 428
Hayes v. Thompson.................04. 2 NIN BIS: ees oe eas elses 343
Hayner v. American Popular Life Ins. Co.4 Jones & Sp. 211................- 359
Hays ve Millets iciesica sven etuesveaess NOUNS YAR ees ceases pease s dhs 174
Hazman v. Hoboken Land & Impr. Co...50 N. Y. 58................. 0c eee 282
Hazelwell v. Coursen..........-...-000- BL Ne ¥: 680) 00 seeaysssevaeee es 544 145
Head vi Smithy occ. cece s sg esscceteeuns 44 How. 476 1.0... ce eee eee eee 343
zpartment of New York v. r
Be erie te ne re ana se 288
Heebner v. Townsend..............-. 8 Abb: 284. 50s 05 veseawawseneveas 115
Heinrich v. Kom.................-.005- AUN: Ys 608: 54020400 oxen tancaxcnx 208
Helm v. Huntington Bank ............. QD. Tha tase ce xite ecar ce oka ordi ois aes 531

Hemmingway v. Poucher............... OB IN Ne RSL wins crsis Reaceececsaaracesainis 114
Tas.e or Oasxs. xlix

y Page
Henry v. Cuyler........... wndevnsee ewe 17 Johns. 469 0... ceccceessceevees 200
Hensler v. Sefrin......... 0c. cece cece es 19 Hun, 564............ she TERS 176
Hepburn v. Montgomery................ OTN. MIB LU cane ninitennensieasenscnleet's 276
Heritage v. Hall, ..................006. 83 Barb, 847....... 0. cece ee eee eeee 504
Herman v. Lyons ...........c. cece eee LO WU, TIT, op ancaccvaveerstoeralaliea cueiasete 482
Herrick v. Stover......... ...c.e cece eee 8 Wed. 080s scsavrswiacswrtasiaia ee wives 452
Herzig v. Metager.................00005 62 How. 855...............0006- 4, 509
Hesse v. Briggs......0 00.0... cee ee eee 18 Jones & Sp. 417...........,0-05 4u7
Hewlett v. Wood ...........0.0e eens SOTING Nx BO Gee sonies aout. galas 217, 293
Hewlett v. Wood .......-...ececeeeeeee 62: Na Yo Tia one ca ieee saee as aes 224
FA, Bet Parte ‘seiei ss sacoa ma same 4 eae kee 3 Cow. 355...... 5502 ae eieenres SeRe 540
Hill v. Burke................0085 Sota aay 62 NA Ys Des csccswecwe soe 60, 89, 114
Hill v. Heermans.............. 06 cece 17 Hun, 4703632... 64 sea0ti ease vee 275
Hill v. Hotchkin........... 00... ahenes 23 Hun, 414.04 ccs.s eee eet ae eee 501
Hill v. Peekskill Savings Bank.......... 95 N.Y. 675.........-.004. 92, 253, 3871
Hinman v. Stillwell ......66......0000s BE Ey BES one oe a ae ae Bit
Hiscock v. Harris ..............0.00008 80 N. Y. 402 .............0000- 247, 296
Hiscock v. Phelps................00000- 2 Lans. 106...... Seine Sarsmintiataal Mein 65
Hiscock v. Phelps.............00000000% 6 Lans. 105.... .. ee ee 39
Higbie v. Heath...............0.0000005 3.N. Y. Sup. Ct, (T. & C.) 788..... 144
Higbie v. Westlake.................... 14.N. Y. 281.0... ccc see e eee e eee 19
Hitchings v. Van Bruut................ 28-N Ye BBD! pos aes ecules we dmecisan 296
Hinckley v. Kreitz...........00.c0ceceee 5S Ne Ys S88 5.0 5 ve secu ssi rateaaveunrd ions 112
Hinckley v. Miles................000005 15 Huns 100i06< ceca casea sesens oe 12
Hind v. Supervisors of Columbia Co.....81 Hun, 581, ............ceeeee eee 50
Hobart v. Hobart..............0..000 cee 62: Ni Ys 80.csaamsaved veaweees 175, 518
Hobart v. Hobart..............0000ecuee 85 Ni Ys GBT oiccu amiiacases dees 130, 268
Hobart v. Hobart............00ececeeeee 86 N. Y. 636. .......... 34, 38, 219, 231
Hobart v. Hobart................000005 23: Hun, 494:. i ¢:5.c cc case tea cewiein 36
Hobart College v. Fitzhugh.......... .. QIN. Y. 180... . 0... cece eee e ee eee 347
Hobbs v. Wetherwax.............000005 88 How. 889............0 see eens 428
Hoffman v. #tna Fire Ins. Co..... Sages ROD. O0Ms.< <p seca ter c nee warren 146
Se ee ayn ah vrs iasnag avatar ae 187
Hoffman v. Smith...................0.- 34 Hun, 485....... wie eaiyaes oa 108, 114
Hoffenberth v. Muller.................. 12 Abb. N. 8. 221..........0-000 ee 60
Holbrook, Ha parte. ......0 cece cece eens 1B Cows, Bis sites a's setae sere Gsiaisrate stadess 98
Holbrook, Matter of.............000008- 99 Na Vs-589) cso960sn ssa eke naess a9
Holbrook v. Wright...............2.065 24 Wend. 169,............ cee eens 449
Holcomb v. Holcomb ...............555 OBIN: YY. 816s ccvvsxeasscaaas rene 518
Holcomb v. Holcomb .................. 20 Hun, 156....0.2ss.0%8 cs eacscaasese 175
Holden v. Burnham.............-....5- G8N.. Ma 74s ces ees veeeese say wom 279
Hollister v. McNeil...........0. 00.2 eee 81 Bun, 620. ci sciec ss 6 Seed seew an ae 56
Holloway v. Stevens.......... ..-...00. 1. unt, 808 sie vis dineeed oe ogo sass 192
Holtz v. Schmidt........... 0.0.0.0. ee 12 Jones & Sp, 827........... 00 eee 527
Holyoke v. Adams..........-.....0000% BO IN SY, QBS ius catches cantata mam 226
Hone v, Joslien......... 0c cs ce cece e eee 1 HOW'S B88 jeauosawie wea tete eee 403
Honegger v. Wettstein............ 2.22. 15 Jones & Sp, 125.............065 35
Honsee v. Hammond..... ..........--- 89 Barb. 80... 6. sees eed ga eta ned see 504

Hood, Matter of ........ .....00s ee 80 Hun, 472..........6.65. 474, 479, 480
D
1 Tasie or Cases.

Page
Hopkins v. Grinnell....... be ered 28 Bary G58 cen surdias vies eA Bean 506
Horton v. Bloom...........-.006 ceenee 1 Jones & Sp. 115..............6.. 506
TIorton v. Borthwick..............-..4- 15 Week. Dig. 809.............000- 385
Horton v. Horton..........eceseeeeeeee 2 OGW:! 580s: natmnacusinaie siewids 587, 540
Horsfalls, Matter of................008 TEN: Ys O14. sss scca ses et cnet 237
Horn v. Pullman..........-...2 ese eee T2-N: Y.. 269. ca ccevasavarsesaay ave 400
Ulorner v. Lyman........ 0 -....2... 000s 4 Weyes, Ab sere rag ees seh Veen 114
Hossley v. Colerick...............-..06- 8 How. N, S. 169.............- 524, 529
Hotchkiss v. Hodge............ .. 2.06. 88 Barb. 117. ..... 02. e eee eee 499, 518
Hotchkiss v. Platt.............00.00 000s 7 Hun, 56......... Cy slave haternte een bee 34
Houghkirk v. Pres., etc. of D. & H. C. Co.92 N. Y. 219....... 0... 2. seen cee 344
Houghbkirk v. Del. & Hud. Canal Co.....28 Hun, 407.......-...-cceesee eons 505
Houghton v. Ault............-.....008- 16 HOW) Wlainiwaien oe wiwseinwieaciien 307
Houghton v. Kenyon. .............. .- 88 How. 107.............. 428, 486, 444
Howard v. Brown............-.00.20085 2E. D. Smith, 247............. 10, 448
Howard v. Freeman...........-....-+5 BADD. IN: 8292: sccges cise eees 356
Howard v. Freeman................0005 PROD 25 apinsiccccstig ie asgueravaiiscg ins serene eg 301
Howard v. Hayes.. ... ........-.e00e 15 Jones & Sp. 85..............06- 335
Howe v. Searing............20eeeeeeeee 6 Bosw. 684......... 0. cc cece eee eee 105
Howe Sewing Machine Co. v. Haupt....7 Daly, 198 ........... 0. sees eeueee 448
Howell v. Howell...............eeee ee ST MO; 124 ier scnei ssa mmmtiocinenes 534
Howell v. Howell................. 25+ 80 Hun: 625%) 6s cova ees pwwulss ae ae 398
Howell v. Mills......ccccceecceecaeeees 58. N. Y. 822..... 216, 217, 221, 222, 230
Howell v. Van Siclen.... ...........-0.. 8 Buns 495s 4c sees vane sean emarey 481
Howk v. Bishop............0: cess ee eeee 10 How. 509. ..66seesasccreceveeas 351
Howland v. Howland..............0206 0 AGN A728 saved sane oun ease ase 144
Howland v. Taylor............:eeeeeeee OSN YS 620s.) 254 ae san cae wnads 401
Howland v. Willetts...........-.....05 ON. YY. 170. sss wwtscweustevensaws 540
Howland v. Woodruff..............56 GON. Ys%8. scissor seuisnee wees 142
Hoyt v. Long Island R. R. Co........... OU N.Y. 678.4 sac cameras esas 184
Hubbard v. Eames..............--000 6 22 Barb. 097.5 3400s 3. c8as0s0qs00a% 33
Hubbell v. Meigs.............2. cesses BON. ¥:. 480. ess cwas vat ctawiene ts 351
Hudson v. Guttenberg...........-..000- 9 Abb. N.C. 415...............6. 490
Hudson v. Swan........ ce cece eee eee eee 7 Abb. N.C. 824...............6.. 166
Hudspeth v. Henderson ...............- 64 Ind. 483...... 2. c eee e eee eee 539
Huebner v. Roosevelt...........000e0008 T Daly; Wlicc conceit eee tase dees 526
Hughes v. Chicago, ete. R. R. Co....... 13 Jones & Sp. 114.............46. 306
Hulburt, He parte..... 0... c cece ee ee eee 8 Cow, 188...... ccc ec cence e ce ee 98
Hull ve Hartisecccdanas atacvengetgouns QE HOH, 2k ss ceaewemmonnekalod as 82
Humerton v. Hay... .........e ee eeeeeee 35 N. Y. 880............ ge anata teas 113
Hughes v. Stickney...........0.eeees -18 Wend. 280.........0cceee cece eee 32
Humphrey v. Chamberlain ............. AA NG Yo 278 os visa cele swale ene Sainia’s 60
Humphreys v. Hayes............eeeeeee Q4N. Xi O94 ieee es cee cei ee ete des 284
Hunt v. Bloomer.......-... 0. sees ee enee 1S Ny Ne B40 osciaccic crete sce ae 140, 141
Hunt v. Chapman...........-.. eee eee ee GON. Ws BBB a ois cisveiccararanaiswaiscoune 64, 212
Hunt v. Church.... ......c cee eee ee eee TSN: Vo B10 0 ees ss esieanareeais 300
Hunt v. Hoboken Land Co.... ........ 1 Hilt: 161508 seeks seis ca seeataca sts 447
Hunt v. Maybee........ 2... cece eee eens TN. Ys 266.65. 60secanewsnncaee 184, 187
Hunt v. Westervelt.............c ee eeeee 4B. D. Smith, 225............. 193, 448

Hurd v. Beeman.......-... see eeeeeuee 8 How, 254 wscca veswueeesseveas ees 440
Tasie or Cases. li

Page
Hurd v. Hanibal & St. Joseph R. R. Co..83 Hun, 109.......... cere evens 95, 97
Hurry v. Coffin....... .cccs cess cess eens 2 Civ. Pro. R. 319............00. 10, 455
Husted v. Ingraham..............000005 WONG. Ys20526 ses aeanncceen cen 9 58
Fy a Pe nn a octieaaneteinizes B44
Hyatt v. Seeley...........0. ee eee eee ee PEEING M68 sacs cao ciaiwaoue rae e eae’ 239
Hyatt Vic W000 wescssgs shisieese eee euece st 8 Johns. 289 ........ 0c cece e een ens 452
Hydorn v. Cushman .............eeee0 16 Buns, 10 Tiss. ava ecaesaees 177
Hyland v. Sherman ................0.05- 2 E. D. Smith, 284................ 485
Hyland v. Loomis. ............eeeeee0e 48 Barb. 126...... wesc eeeeeeeeee 444
Hynes v. McDermott.............000005 % Abb. Ne C. 98; ccscccemnecesesesa 339
Hynes v. McDermott...........eeeeeees OLN. Ys 40 scenes cesses cee sean ews 278

I.

Ibbotson v. King.........0.ecseereeeeee 10 Jones & Sp. 207... ......... 000s 501
Idley v. Bowen..........eeceeeeeeeeeee VL, Wend. 227. 06 sc cineinsmeeenaserne 32
Ihl v. Forty-second Street, etc. R. R. Co.47 N. Y. B17... 0... cece cece ee eee 283
Ingersoll v. Bostwick......-....ee.seees 22 Na Ys ARG sss ss ces sare eae only porn!
Innes v. Purcell. .........eceee esse eens 58 N. Y. 388........... . 12D) 20 sayy *
Treland v. Nichols...............050e08 40 How. 85. -........ vance eee.

Trroy v. Nathan........... cee eeee cence 4E. D. Smith, 78..............0.- 449
Isaacs v. New York Plaster Works... .. AADDAING Coe oases iecasan agar oan 482
J.

Jacks Vi. Darrin ccdccadscaascaw seew a 3 E. D. Smith, 559. .............6. 449
Jackson, Matter of............0.05 eee 32 Hun, 200........... Seay aah 188, 394
Jackson v. Allen......... cece cece eeeee 26 How. 119... oo. ccc e eee eee eees 2
Jackson v. Dickenson ...............4.: 15 Johns. 809 ........... 0... eee eee 543
Jackson v. FasSitt..........0 2c -e ee eee 88 Barb. 645... 2. ccs eee ee eee eee 63
dackson v. Malin. .........cecce cece anes 15 Johns, 293................ 0s eee 524
Jackton v. Parkhurst..........eeceeeees 4 Wend. 869.............- eee eae 177
Jackson v. Robinson ............eeeeee: 4 Wend. 486................ Saco
Jackson v. Smith ...........0- eee eee PO HOW AT Ghar cis ete see ee ves ats 340
Jackson v. Thurston ............-eeeees BO Cow. 1842. cis swceis ease a's as eitele sis 508
Jackson v. Warford ....-.....0...eeeeee W Wend. 62.20.02 sew a eceacs das 533
Jacobs v. Morange ......... cee ceeeeeee 1 Daly; 028. c<ccacccseis cee aaves 60, 61
saeger Vy, KEY ssc 2 vee cckcsnw seein T Rob. S86 casncis: aaeavaws Lede ees 176
James v. Cowing...............ee eee eee 82 N. Y. 449.......... 146, 279, 291, 333
James v. Shea ......... cece eee cece eee QS RGD, 74 aos casas cdccrovaccusterd arene snetees 48, 305
OE One © Doonan 296
DAUVIS'V, DI BES eic 0:4 ic cist sie sicroisrseraisneieeceies GOON Vs P48 s octeca cana aenke tae alte 125
Jayeox v. Cameron......... eee eee eee AQUN, Ne C40 oiccecer enees aceon 180, 146
Jemison v. Citizens’ Savings Bank....... BEING. Vie B46 os disses oasis 217, 219, 298
Jencks v. Smith.......... .....-. eee eee DN Ys QO seisersine heee ses Gh leres 447, 449
Jenks v. Van Brunt........ ........25- 6 Civ. Pro. R. 158...... . ........ 504
Jermain v. Lake Shore, etc. R. R. Co....28 Hun, 505............. 0. cee eee 480
Jesup v. Carnegie ..............0. eee 13 Jones & Sp. 810.............. 90, 93

Jetter, Matter of........ erandeg: BeLayes nuns TONG WY. 1601 says wo cnate aaiasve. sing dee 312
lii Taste or Caszs.

Page

Jewell v, Heinzell. ........ccsceeeeee ee +B Daly, 411. cc yscceceneececescceses 441
Jewel v. Van Stunburgh.............065 58 N. Y. 85.........6. rem eeecee, 142
Johnson, Matter of..........c0e cece eens 27 Hun, 588....... wirnleee Ayoacions 8, 379
Johnson v. Albany & 8. R. BR. Co....... BAN. Y¥. 416.......... 0000s eevee BOL
Johnson v. Carnley.........ceeeeeeeeee ION. Y:..690s 6 cai caecnaensaeawnsics q
Johnson v. Everelt.........2000000 coos 9 Paige, 686........ at's Sa viele seenas 210
Johnson v. New York, etc. R. R. Co....80 Hun, 166..... ......... 444, §11, 513
Johnson v. Whittock ...........-.-e006 18 N.Y: 844. scccecveweceacesad 140, 147
Johnson v. Yeomans........... 20. secre 8 How: 140 ssdsscaviecniaescee aces 2
Johnson v, Young..........ceesesee eens 65 N.Y. 599... cece cece ee eee 279
Jones V. ANGErSON....... cece eee e ee eees MLN Nie DOO oo oie nk eee Sere . 268, 298
Jones v. Brooklyn Life Ins. Co.......... GINA OY. TDi icc soe ee eee eevee oie os 182
Jones v. Decker ......... cece eeeeeeeeee 14 Abb. 301........ cccccescuceees 81
Jones Vv. Hoyt... ccc c cece eee eee ee nee OS FLOW. 94 os. ce isereseever winsieania wie 345
JONES V. JONES... .. eee esc c eee ee ee ence BLN Ye BB ooo siack dee oper Layee 210, 233
Jones v. Ludlum,...........0-.20s20008 TENA Xie Glin c view ivraiwro gs enti sad 236
Jones v. Osgood .......0..eieeeeeeeeeee 6N. Y. 483..........05 ste sivtabeieints'w t's 184
Jones Vv. OWen.. 2... eee cee eee ec ee ewes SHUN, 1899s can vacieesescewes 418, 446
FW Fig People iicraisiaynis so areisceiers wits tiassserorniate PCOl Te BGke farses eth cy gees Sto casas 539
fs PIG aM wise soe wisi settieaGeeearers 3 E. D. Smith, 155................ 449

J deeniedlar Sle Wat as es tena doewe woatens 7 Civ. Pro. R. 164..........0...008 500

seph ew
cogent Che wee ueible Co, ie New ; SOc Fim, Velevescusavssexeancunnn 306
Josnez v. Conner..... .ecceeeeccceeeces 8D Ne Von LOG eis sures Seadeecene 202, 208
Josnez V. Spencer........eceeeeeeeeeces 6 Daly;.404. cvce isso seas eves ses ees 243
Judson v. Gray... .. ccc cece cece eeeeees 17 Hun, 2893 «cess saws carves vers 171, 298
Justice V. LANs. 6. .2c seas weeeeneweseee 7 Jones & Sp. 288..........0. 06 . 342
Justison v. Crawford........ arasintaieaerens 25 How. 465..........0005 siseatwinie 448
K.

Kain v. Delano......... ccs cece e eens 11 Abb. N.S. 29.................. 219
Kamp v. Kamp......... ceseeeeeeeeees 59 N. Y¥. 212..... seroetavanins 4, 11, 299
Kanouse v. Martin...... gietidiewsgieaihousien 2 Sand. 789....... 0... cc cece eee 2, 486
Kasson v, Mills.......-...-.esee eee eee 8 How. 877........... 378, 440, 448, 453
BAEZ ¥i ICU Gos snentdy in eneneire wee eweeaws 9 Daly, 172.............6. 107, 119, 408
Keck v. Werder...........0eeecceeeeeee BON. Yi 264 sia tewwoewaaeears 224, 226
Kiee:ve Stateviss secou siuaes ¥ 65 sare cea oe S8:ATk. 100.2 42a caie gatas Parary anes 542
Kellum v. Durfoo........... af isteatayetase BBN. We ABS, og die saan sasemngarues 223
Kelly v. Prazierssiccescusea se asowsse anes 2% Hun, 314) oicosus se ccaes 508, 504, 508
Kelly v. Isracl .........e. eee eens wesw Paige, 14%: 5 covueseree eda xewwees By
Kelly v.: PlUm cscseccs0 san eaade enna ve 50 How. 187. ....... ccc eee eee eee 484
Kelly v. Sheehey ...........: cece ee reese 8 Daly, 29. sc oxssswasen vaancaa eters 543
Kelly v. Sheenan............. ese eeeeeee 76 N.Y. 825... .......00.- eaenies ». OT
Kelsey v. Campbell...............0s00ee 38 Barb. 288 2 sis. sivas aseadenieies v1
Keller v. New York Cent. R. R. Co..... 24 How. 172......... 00 eee eee -..e. 183
Kellett v. Rathbun....... .......-0.00- A Paige, 102s 6 0.0% ic eviguve rivets 32
Kellinger v. Roe.........ce cece eee 7 Paige, 362.............06 6 aeaate 40
Kennedy v. Crandall. ............0e eee BS LANS, Lows need sae sacha 4 sehates 166
Kennedy v. Kennedy...........0...005 73 N. Y¥. 869.... ......08. 281, 283, 284

Kennedy v. Mayor..........ecceeeeseened N.Y. 861.0... 0.0.20 eee vee B47, 348
TasLe or Cases. lili

Page

Kenner v. Morrison..........0.00022-00- 12 Hun, 204. ......cccvecccceenenes 444
Kenney v. Apgar... 2... cee ee cece e cease QBN. Ni B89 codart cases esa as ean’ %, 476
Kent v. Popham...........ceee ee ence ees 18 Week. Dig. 489...........0.000 308
Kent v. Quicksilver Mining Co.......... 23 Hun, 199.......... cece eee «e+. 310
Kenyon v. N. Y. Cent. & H. R. R. R. Co.76 N. Y¥. 607.......... 002.00 141, 172
Kerney v. Mayor, ete. of New York..... 02 Ne Ws. 61%; asecccrcsaasen veeeeys 290
Kerr v. Kerr... .... ccc cee cece eee eee ALN, Vo 292. csiced coseveceeececss 11
Ketcham v. Woodruff.............e0005 24 Barb. 147 ........ cece cece ee eee 139
Keuka Navigation Co. v. Holmes ....... 98. N. Vi G08 cusaue te eteis yee casts 264
Kidd v. Qurry.....ccc esc e cee ee eee eeee 99 Hun, 2b cacccisccwaes es oc dese cues 192
Kiefer v. Winkens...... ORGe rola eee 29 How. Li6 sc issccs cacwsdwwasaes 32, 33
Kiff v. Yourmams ...........-..5005 eae QO TAU, “VG os 26 cid dcacecesd'e ee clos F684 505
Kilmer v. Bradley............. seeeeees BON. Y 680 sane conetinend aetdees 209
Kilmer v. Hathorn............ 00sec eee TS Ne V 228 o.oo cisow a cidveserardibauecuacens 57, 65
Kilmer v. N. Y. Cent. & H. R. R. R. Co.94 N.Y. 495.0... ccc cece e eee eens 147
Kilmer v. O’Brien... ..........e eee eeees 18 Hun, 224..:............ 868, 378, 613
Kilpatrick v. Carr...........eeeeeeeeeee PADD: 117 ccn aiswneseceeseeennts 435
Kincaid v. Richardson..............-++5 25 Hun, 287........ cece eee eee 364, 365
King v. Armold........0....e cece eee eee B84 Ne Ys 6680 ie cceccuesceeesee ones 228
King v. Galvin. ......cceeee cesses ences GOON. Vi, 288i 20s ses viedaeele else yaae 203
King'v.. Plattscs0c. 0 ask cctaiedsaenay 84 How, 26. ei ccs ace dees sane 210, 280
King v. Whaley ............seceeeeeeee 59 Barb. 71....ccceccseesentecetae 286
Kingsbridge Road, Matter of............ 4 :HUD, O99 seis recent eae taaeseds 312
sings (er Migvated. Railway Co, Mat: t 82 Oi Ae OB accutane 297, 232, 279
Kings Co. Elevated R. R. Co., Matter of.78 N. Y. 388............... cece eee 25
Kingsley v. City of Brooklyn............ OAD. IN « Co duonsclcgsioe steed werises 356
Kinnier v. Kinnier.............0.cee0 ee AIR ONG» Von BD iex's sta cist pceevesaraioia auscarsnes 12, 18
Kirkland v. Leary..........0cceeceeeees BON: Nv O18 ous skates vee cmeny alee 296
Kissenger v. N. Y. & H. R. R. R. Co....56 N. Y. 588... 1. eee eee eee eee 182
Koapp v. Anderson ..........0..es eee 71 N. Y. 466...... FAME SERED 114
Knapp v. Brown............0.ee eee oe 45 N.Y. Q0 iss sccscdias tes eenaeeus 18
Knapp v. Fowler...............e essen 26 Hun, 200). 36 3. oss hea ca awe 309
Knapp v. Post...........0. 2. eee eee eens NO IGT: BOs scsssieauicee: tase ete hes 8 4, 521
Knapp v. Simon................. eee eee OG IN. OX 284. cadiece casa aaqaeeins tie 167
Knapp v. Roche .............ecee eens 5 Jones & Sp. 895 ........-....008- 343
Knapp v. Roche ..........0.eeeeeeeeeee 82 No Ys 866i cece eevee. 209, 357, 358
Knauer v. Globe Mut. Life Ins. Co...... 14 Jones & Sp. 870............. 302, 356
Knickerbocker Ice Co. v. Mayor........ 8 Law Bull, Gysisis stvaeedoeeseee 520
Knickerbocker Life Ins. Co. v. Nelson...7 Abb, N. C. 181.............-0205. 166
OS ee a (RE Me Me Was sans nsncinea deaanies 282
Knox v. McDonald.................0085 26 Hun, 268... sec. acawaies waa 88
Kicehiler'v,  Adlerixs ceise.sices-csgooes seed dace ees IBOIN, OY ctO8d sieieis 88 scouts ne ntocs ene 186
Krekeler v. Ritter...........2-.--2 20 eee GB IN Yio BI sas, 5c teens Sy ca area rape 225
’ Krekeler v. Thaule.............-.000008 W3N. Y. 608 .........008 sca vats siege 247
Krom v, Levy ........cc00 ce cee eee ees 6N. Y. Supt. Ct. (T. & C.) 253.... 359
Kuhndolf v. Thalheimer....... ....... 12 Ni Yi B98. oss sisieie sige sieeainnseieas 11
Kuntz, vi. Licht sccedcenescesaw cae see os 8 Bun, 14 wea nge egies eee eed 865, 423

Kyle Vi Kyless.sswscewwswaan aie ca cece id BPN. Ys 400: 65 es nsiansrwswsiecowres -». 898
liv: TasLe or Caszs.

L.

Page
Lachenmeyer v. Lachenmeyer........... 4 Law Bulletin, 17..........00.008 84
Paielaiaine Menatizen OD) Niet Be UPD t 16 Hun, 494....... 0.00.8 . .50, 62, 304
La Farge, Hz parte. ..... 2... e eee ees 26: COW; 6Liiweer tives eaeniccntiaws 14, 422
Lafarge v. Larfarge..............000005 14 HOW. 26 iscnisiscgeansvwwsowsaaas 309
Lafferty v. Lafferty ..........0.2 seen ee 5 Redf. B26) sceciceyecciiewrewwees 37
Lahens v. Fielden............. 0... eeaee 8 Abb. Ct. App. 1..............66. 172
Lake v. Artisan’s Bank..............56 8 Abb. N. 8. 209.................. 511
Lake v. Gibson... 2... 2... cece eee e eee QIN) Me ASB iiscsesaicisecdisnsee sie ist oieaid sia 8 8 199
Lake v. Nathans............ see eee eee GTN, Vi 89) oe ss eeis cae es scars 246, 296
Lamb v. Camden & Amboy R. R. & T. C..2 Daly, 454.0... .... cece eee ewes 176
Lamkin v. Douglass .............eeeeee 63 How. 47...... 0c. cece eee esis 94
La Motte v. Archer............0.-0e-08 4H. D. Smith, 46....... .. .. ... 452
Lane: Vi, Baileys ses si.ciscose yinssic ca ee ae wes 30 How. 76........... ceeseeee 308, 339
Lander V.. Bishi aecas ssa ob aie e's ia 6 cise vis'8% 24 Hun. 648............. Heese hes 3807
Landrum v. Farmer.... .........2..005 7 Bush (Ky.) 46..........0-..0000. 533
Lang v. Marks..............00 ceeeeeee 3 Civ. Pro. R. 287..........2 22s e ee 455
Langdon v. Evans.........0.20eeeeeeeee 29 Hun, 652....... 6. ce cece e eee 65
Langley v. Warner.............e0ee ee TNX 606 og ssiss tees ve veces 72, 120
Langley v. Sixth Ave. R. R. Co......... 16 Jones & Sp. 542................ 356
Langicy v. Wordsworth...........-566 99 NN Glens ciiecasicomaes ewes 345
Larrimore v. Williams .................. 80 Ind: USse2caca wekensaseaeewuaee ke 531
Tathers ¥. Fish... coc cccc sss ceeveecaaees 4 Dans: 2182 ¢. aise ssivwes aesnnecies 347
Latson v. Wallace....... 0.65 seseeneees 9 How. 884i ciaisasvcswesiexecees 273
Larson, Matter of.......... 0c. ee ceeeeee 96 Nix Vis881s svecuensoawdains 5, 274, 294
Lattimer v. Hill..... Li 2S RET EN AS OS 8 Bun, 171 ii cccsecurs sees 125, 336, 508
Lavalle v. Skelly......... cece e ee eee ee OON: Y.6462ccssiwewangc ae vtedey s 60
Law v. McDonald.............. sesso 9 FUN, 28 icc seetecn x wits tictecatte see 2382
Lawler v. Van Aernam...............6 22 ALD: Died LOG ses. t sins eeicises ea acs 102
Lawrence v. Bank of the Republic...... GUROD AO Tite secur eicasie ed ees een4 297
Lawrence v. Ely.......... 2. cece e eens SONG Y AR. cea cine tea tas nes 227, 535
Lawrence v. Farley ............200ee005 WB: Nig NS. LOM ess teed 8S dalek 221, 225, 231
Lawrence v. Farmers’ Loan & Trust Co. .6 Duer, 689...........0.cccee neces 302
Lawrence Vv. GreeD. .... cece cece eee eee SAU, AS tee. cn dansongheoseetocs 340
Lawrence v. Lindsay............00.000% TOUN LY. 1966 asccwastweaanies ao 475, 482
Lawson v. Pinkney........... cece eee 8 Jones & Sp. 187.............. 350, 476
Lawton v. Commissioners of Highways. .2 Caines R. 122...............008. 15
Toeach ‘V... Wilbur sc. dence si cata dee oted 9 ALIEN, 219. ce ccc aces ane ae an otces 538
Leavy v. Roberts... 2.0.0... ccc cece enes 2. Mtlt 280s css nevkeea vests Heese ees 525
Lee v. McLeod... .......... 0. ee eee eee 16. N@V; M58 eo eicsavece sea seen 542
Lee v. Schmidt. .......... ccc cee cece ee A Hilts O87 2:2 covegeicaccea sea seed 449
Leffler vi Biel @is.ccaicisccsiccccesieis einige eereceto 50 Barb. 407.2... cece eee eee 123
Leighton v. People...........-.....0006 10 Abb. N.C. 261....... 20.0.0... 335
Lentilhon v. Mayor...............eeee 0 3 Bandf. W21.00.06 sever edueeceee nes 88
Leonard v. Collins..............ses ee eee MOAN YY D0 ose stead scx chaos doe 182
Leonard v. Columbia Steam Nav. Co....84.N. Y. 48........... cece cece eee a
Leonard v. Martin........... Resa cewaees 62 Barb: 118. ceeiacevacwesveveseess 354
Leonard v. Mulry ....... ee ce ceee cece eee 9S.N. Vi 892 cswcesccauiencencis 217, 226

Leroy v. Mayor, etc. of New York...... 20 Johns. 480....... 0... ccc eee eee W2
TasLe or Caszs. lv

Page
Lenox v. Eldred. ............. ce eee e ees 65. Barb:.526 wiicceunthne ee veawasies 479
Lesser v. Wunder..........-.0e. ee eee 9 Dally; "(0s ncsastsrene snes va oy 404, 412
Letson v. Dodge ..........0 eee e eee e eee 61. Bat: 128.5 ccsseineawcns enayeee 113
Mev V DON ccc neiroin Cuidado oe aei ee 2B°HOWs 207 ross aks Sock eed ve ore 114
Levin v. Russell..........0.2.eeee eee eee BON Vs. 20M vr cicicahie waGin ses ow vee 179
Lewis v. Greider.............. sce cece DLN Wa OSL aiasowa cis ne ceexee ves 212
Lewis vs Tnving 0 .0cccsccaveus cone seas 15 Abb: 140. 6 ic sccs cee. seuteeweis 20
Lewis v. Jones. .........ces eee eeeceees 50 Barby 645.0. ccc cccaseseceyeues 37
Libby v. Rosekrans .................045 DO Barby, 202s sid ctesecacotie ties akaiv aes 6
Liddell v. Patoness ccs. ties ies ba abe GEN VedBO8 s dosceseresussd cnguadosrerevasele Ras 228
Linden v. Beach ........... Bs auhan sateen epiass GH, 200 sis. hasten selsud seatavwaleredas 2 236
Lippincott v. Westray...............005 6 Civ. Pro. R. 74....... 0.0... eee 341
Livermore v. Bainbridge................ 47 How. 850........ 0... ee eee ee eee 340
Livermore v. Bainbridge................ OO IN OW 2s scot mctaacaaincees 217, 226, 306
Livingston v. Miller.................04- MLO We lQ19 ai iacaiaccis pias sea tiaraatwacielees tees 172
Lockwood v. Quackenbush............- 83 Na Ys AOC iesies tdapaierienrcwaamcas 275
Loeb v. Hellman............... ec cece SSN: Ys Gls cee a eanaieeeinencd 292
Loeschigk v. Addison................ weed ROD: B06 a vise execs bese cas wnrnve 355
Loew, Matter of............ cece e eee SON. Y. 666s csscmwneicnoninreenics 226
Logan v. Thomas..............02. 0000 TY, HOW? 160 ees ei oss secs vasa vines 495
Logue v. Gillick ............. ee cece eee 1E. D. Smith, 398................ 470
Louden v. Louden.................-.065 65 How. 411............ 22.200. 34, 306
Long Island R. R. Co., Matter of........ AB ING Xs 1B Bk sisceivice wiapeinvesotensd! oaie's 239
Loomer v. Meeker............---. 00000 ON Kis OO Licsassesinrssoesiatolgnstausisccrade Gueite> 186
Lorrimer v. Kelly.............0.000000 1B: Ka8) 78 ocpsves giashtenean vaewaiele aiears 542
Losee v..Buchanan............22. 2.000 OLN: Ye ANG. «cic nas wewccenmmenwa 183
Lott Vi, SWE€ZY i. wesc ccscewaewcacaee eee 29: Baths 8% oc cccosmewneceges aeons 192
Lounsbury v. Purdy.................04- IB! Nes DLO esid cisanee tote weats 0% 166, 167
Low Wisely sescsisecdare tersamorennecte gs AT Wee 10 vcroci sti nee sind asepaaive eerste 186
LOW Vi PA yD sressssacia ss cicistes Givemaiie niin etd BIN Ne RA beacuse! ead hs stag ona ener 450
Lowber v. Mayor..............0ee ee ee ee D ADD. 268% asco: in edios sens weedeat 104
Lowry Vis TeWesiceccessseuiessesaese sd 25 Mun, 257. cesses cr gesetesesaeas, 113
Lucas v, McEnerna................6005 19 Fun; 140 oe. scccdenncanes acct eae 503
Luce v. Morrison...........-...0.-0 000 2 Law. Bull. 85................005 514
Luckey v. Frantzkee.................6. 1E. D. Smith, 47... ......... 447, 451
Luyster v. Sniffin...................... 3 How. 250................147, 171, 172
Lynch v. McBeth...................005 f HOW, 118 vacucsnacainaia enlas 6-465 378, 446
Lynch v. St. Jobn.............0 000008. BuDaly; 142 it tataoseicive eenes 405
Lynde v. Noble. ............ cee eee eeee 20 Johns, 80..... .....2...0000. 14, 15
Lynsky v. Pendegrast...............0... 2E. D. Smith, 48................. 435
Lyons v. Erie R. R. Co....... 0... cee ee DEIN We ABO sei atu alee we dete eae 145

M.

Machen v. Lamar Ins. Co............... 2Civi Pro: Re 28 csccnsaes sani: 507
Macgregor v. Buell...............00008 1? Abby Blecaned cies vas ceaveeeeds. 480
Mackay v. Lewis...............0.000005 WS: Ni Ys B82sccreaaeeonees seans 247
Mackay v. Lewis .......... ec eee ee eee 54 How. 508.............005 64, 234, 339
Macy v. Nelson...........e.cesseeeeeee 49 How. 204....... cece eee e eee eee 486

Magie v. Baker ..... eeRaage oS Goals 14 NOY 148) in oonisialsanada ase ss 128
lvi Taste or Cases.

Page
Magee v. Badger..........scseseseeeeee 30 Barb. 240.........ceeeee seine Bane 184
Maher v. Central Park, &. R. R. Co....67 N. Y. 52......00c008 ce cee 282, 283
Mahon v. Hall..........6. ceeeee ween 2 Hun, 154.0... 0... cece eee e eens 341
Mahoney v. Decker ....... ......0eeees AS HUH, BOS scessavawreaciecguaxcnaiseas 537
Main v. Eagle........0cecececceeecceree 1E. D. Smith, 619............. 452, 470
Maier v. Homan.............0cseeeeees A Daly, UGB sssie: cose: swines eos wae 125, 336
Mairs v. Manhattan Real Estate Ass’n ...15 Jones & Sp. 31.........00.0eeeee 182
Malcolm v. Hamil................eee eee 65 How. 506.........c. cece eee 486
Maltby v. Green ....... cee eee e eee eee 1 Keyes, 548... 66 eases siewiels sae ore'e 200
Mandeville v. Marvin ...........0.eeees 80 Hun, 282............02. 125, 301, 333
Mandeville v. Reynolds...............5. 68 N.Y. 588. 05 ccies cwacicemaredasarare 12
Mann v. Fairlee.............0cceeeeneee AEN 6: O12 ccc naw suisse arene a mbavevars 539
Manning v. Gould..........cc.e eee eeee 90 N. Y. 476.......... 101, 108, 114, 265
Mapes v. Coffin...........c.eee rece ones 5 Paige, 206.0 <6s000ssesiesonnnden 211
Marine Nat. Bank v. Nat. City Bank... 59 N. Y. 67 2..........-.. ee eee 163, 299
Marckwald v. Oceanic Steam Nav. Co...8 Hun, 547........... cece eceeeee 143
Market Nat. Bank v. Pacific Nat. Bank. .80 Hun, 50...............--.20eee- 807
Marselis v. Seaman..........e.cceeeeeee OL) Barb. 819. os: cies sane aheeaeeras 449
Marsh v. Woolsey.......... ccesecseees 14 OM, do iseccie at ete caseeee seca 82
Marshall v. Macy ..........0e0eeeeceuee 10 Abb. N.C. 87......... cece ee eee 195
Marshall v. Macy .........cceceeeeeeees 5 Week. Dig. 90............. wees 297
Marshall v. Macy ............ecseeeeeee 9 Week. Dig. 21...........2 02 ee eee 192
Martin, Matter of.............0. cee e eee OS ING Ys ADB ay s-ccese- ce aed 294, 401, 477
Martin v. Houghton.................0.. BL. HOW, 82 cae naceeev ces nsen sews 452
Martin v. Kanowse...........seee eee QADY: B90). wie tees wav oteen genes 33
Martin v. Rector........ ee ee 68 How. 362.......... 2c cece ee cee 194
Martin v. Windsor Hotel Co............ WON. Y. 101.......... 216, 221, 228, 306
Martine v. Lowenstein..............-..- 68: Ne Yn 4062 dee chee oe eran 223
Marston v. Gould......-.....eecee ee oe O9UN.. Vy 220bsaatcakieaawasrewanteee 180
Marvin v, Marvin. sci cscs y veisweccenna tae 11 Abb. N.S. 97......... 18, 87, 69, 545
Marvin v. Matvin......... 0.0.0... 0 0 eee MD Nig Net QA0  crerinacae secorarthieraessin vi tuanaresss 61
Marvin v. Universal Life Ins. Co........ SON Wie Sr Bx” Paiicietniierebes os aise 285
Marx ve McGlynn) sccccavacu seems ys SSN EV 80 Te ccnp oecseecasen 288, 398
Masonry. Lord occ ceersectaaenetwainceancs 40 NOM AIGi ccd Aaa a eee 280
Massoth v. Delaware & Hudson Canal Co.64 N. Y. 525...........0.0. cece 187
Mathews v. Arnold............-.2..006. 14 Hun, 376............... 439, 446, 460
Mathews v. Coe. 22... cece ee eee ee eens BOUIN. Mi Digases celiocwasmt anaes 280
Matthews v. Mevbery...............006. 63 NEY. 656 a sccs ccrkesaitennernaies 126
Matter of N. Y. Cent. & H. R. R. R. Co.64.N. Y. 60........ ccc cece cece e eee 7
Matteson v. Hall.............4.. ee ess 64 How. 515 ............. 365, 428, 486
Mattison v. Jones........ ...... Views 9 Hows 152) « scsciwssevies veyed 35, 418
Maxon v. Reed .... oo. cee eee cece cece 8 Hun; 618 isc cc secs come Sanaa’ 378, 448
May v, Stratss..css.cecra ves saw saree acies 8 Abb. N.C. 274... .. 0. cece eee eee 527
Mayor of Albany, Hz parte...........66. 28 Wend: Q7ivaciude. cenwew one 15, 17
Mayor v. Fiegel.........eceeeeee ee eeees 88. Hows 424s ovcnecdee eose esas 520
Mayor v. Green... .. eee e eee eee eee 1 Tilt, B98 ca eeec ec eaactecnusawnsac 448
Mayor of N. Y., Matter of.............. BONY M00. oe cs ceence ieee ata 17
Mayor, etc. of New York v. Erben...... 24 How. 858... oe eee eee e eens «+ 128
McAleer v. Corning........eeseeeeeeene 17 Jones & Sp, 522........000 337, 502

McAlister v. Sexton.....cssseseeeseess4 EB, D, Smith, 41... ...ccceeecee eee 463
TABLE or Cases. lvii

‘ Page
McArdle, Matter of......... eee cetyeees 80 Hun; C5 5.s16s owed oredie epee 865
McCann v. Sheeke............ 0.0. ee ee 5 Week. Dig. 420..............0068 444
McCarter, Matter of................2005 O4 N.Y. 658. socccscwases HEEB Sie Et 4°7
McCarthy vi Bly scscec cee ssvesv eves swe 4E. D. Smith, 875................ 449
McClary v. State........... cece cece ee 76 Ind. 260.5 sis osceecanenaiecaeoes 542
McCoimbie v. Spader ...............00-- PAWn W908 escs cciesas ian ane 180, 336
McConnell v. Hampton............-..6% 12 Johns. 284......... ccc eeeeeeee 345
McCotter v. Hooker...............000ee BING W407. cose sae ound seinen 187
eo Moms ent 7 Hi Ey Cin Re Yi 190 as. asavees 220, 282, 286
McConihe v. New York & Erie R. R. Co..20 N. Y. 495............. cece ences 506
McDonald v. ae \satelo ure theta athens 5 Barb. 560....-........- 000s 448, 449
McDonald v. Walter. . wie ae peeaeteta aie Nic. Yc ODL y ayecarcectaccesrasas 844, 505, 506
McEtecre v. Little............ 0... eee 7 Abb. N. C. 374..125, 404, 405, 411, 412
McGean v. Mackeller.............-.0065 67 How: 278................ 95, 97, 103
McGinley v. United States Life Ins. Co..77 N. Y. 495.22... ..... cc eee e eee 184
McGinniss v. Mayor, etc. of New York. .6 Daly, 416...0........... ccc ee eee 168
McGown v. Leavenworth............... 2E. D. Smith, 24............ 2.8. 309
McGregor v. Comstock..............66- ION: YO8liese ects snag ccsaad 218, 240
McHenry v. Jewett........... cece eee SON X08: oad cores seelat etes treats elas 285
McIntyre v. Hernandez............00005 7 Abb. N.S. 214..........000c eee 405
McIntyre v. New York Cent. R. R. Co. .47 Barb. 515... ... ccc eee eens 845
McIntyre v. Strong........... cee ee eens 2 Civ. Pro, Re 86... eesccceesisiese 250
Mclatyre v. Strong............. cece eee 16 Jones & Sp. 209.............088 90
Mclihenny v. Wasson ...............005 1 Daly, 2803 so: eiels'e'c osans sisvares aerate 457
McKeever v. Weyer..........0cseeeeeee 11 Week. Dig. 258........... 0.08. 506
McKenna v. Bolger............e0e0eeees 94 NN: Ys 64l vas sacgseedsceawseeens 232
McKenzie v. Rhodes............200e000 13: Abb. 887s seers secnsodtoneregees 84
McKeon v. Horsfall.................4.- 88 Ne Ys 400. 3s ssc snugad aan eees 496
McKnight v. Devlin............... ee eee OB Ne Ve BOO es ind Sassi aneteinn sbrenactneneaee 167
McLachlin v. Brett.............. ee. ee ee OF Wun; 18) ies cons aseeseaee ans 38, 117
McLaughlin v. Smith ................0. B HUN, 20s «occ caeoraes maledienlcawiews 487
McMahon v. Allen............-. ee eeeee 22 Barb. 198... 60sec. cee cece eee .. 80
McMahon vy. Harrison...............-.- 5 How. 860........ 0.0. e eee eee 48, 61
McMahon v. Rauhr................0-005 47 N. Y. 67..... 9, 11, 200, 201, 294, 403
McMillan v.-Croin...........ecee eee ee es TOON: Mie AT 4 scsciwGais es saitaweweiine 207
McMurray v. McMurray... ...........- GON 5 Ve 16a es'csece secs Qa ple 12
McNamara v. Canada Steamship Co..... 16 Week. Dig. 86.................. 22
McNish v. Bowers. ... ccc. cee ee cee eens 30 Hun, 214. va cwre sox seaeese 148, 173
McQueen v. Stewart...........e..e eee Ind. 685 ws eccces ass seen sities «» 529
McVickar v. Wolcott........ soaeraianiacpenca? A PONDS! 510 isc as es sacs aches “ane 13
Meacham v. Burke........ ......s..05- OA Neils soos seats Sa eeens 280
Mead v. Mead..........cecceeee eee eens 2 E. D. Smith, 223 ................ 310
Mead Vi Sh@a.sss sececcdcees cee saeenawares O20N i Yi Wee nnues gmbenans 180, 188
Mead vi Shea.i. se ccciecsencicnrdaewnee es 26 Hun, 898 22... 6... eee eeeee 148, 173
Mead v. Smith. .........05 seeseeeneees 28 Hun, 639.......... 128, 126, 128, 384
Mead v. Smith....... 23 sSies Taesisies saws 3 Civ. Pro. R.171........ 0. ee eeeee 124
‘Meakim v. Anderson...........e.eee000 11, Barb, 210; cc0ive vederdexseeees 531
Megrath v. Van Wyck..............:.+.8 Sandf. 750..... ieee iabameeos 808
Mehl v. Vonderwulbeke............008. 46 N. Y. 589........ iPiea eer eecatea 209

Meltzler v. Doll... ..cccsesceeccceeceee OLN, Y. B65... ccc eccen eevee s 808, 284
lviii TABLE or CaszEs. 7

: Page
Menard v. Stevens. ........ceceee ee eeaee 12 Jones & Sp. 215........ see eeee 182
Merceron vy. Fowler............seeeee08 8 Daly).636 cascode cates cceusie aoa se sees 404
Merchant v. Belding......-..........005 DOW. B44, ooo ccscinceisss eee arsine SF is B42
eh aa aseuie oe o eyo bor IN SY BOD ai ae seebusseeesiee cated nomads 477
Merrill v. Pattison. ..............c eee eee 44 How. 289.......0. cc cece ce eeeee 428
Merritt v. Arden...........c.eeeeeeeeee TV Wend, 915.0556 005 sissnwu seis ees 225
Merritt v Seaman..................- pasO Ne Ne 168 ui viee ses eeeGawed nu. os 180
Merritt v. Thompson.........eceseeeeee Dit 000. soc os'e's'p guises sees xa 340
Messenger v. Fourth Nat. Bank......... 48 How. 542...........c eevee 624, 548
Messenger v. Fourth Nat. Bank..........6 Daly, 190.......... seeceeeeeeue 531
Metropolitan Gas Light Co. v. Mayor ...9 Hun, 706..............eee0 123, 342
Metropolitan Nat. Bank v. Sirret........ OT Ni Yi 820. cic ccccasseccssesans 518
Meyer v. Amidon........... ec cee eee eees 45 N.Y: 169.6260 scccas sssewsecees 174
Meyer v. Cullen. .....cscccccsecsecceece B4.N. Y. 892.......... (Feee ease eRe 231
Meyer v. Lathrop......c.esseeeseeeceeee W3 N. V3 818) ccscinwesacaveneas 174, 289
Meyers v. Riley..........csceeeeeeeeees 3G FLUID, 20! os sectiautaieieiesctse. 6.325 Seareuncers 525
Miannay v. Blogg..........seeeeeeeeeee Al IN. Yo Oh es 26s3ea5888 2217, 226, 233
Milbau. v.. Sharp ...ccis.es sas scene ccrnencpacens QUIN. Xo. 6240 cc eoce near eseeatee 174
Military Parade Ground, Matter of...... GOIN: Yo SIGS sien a Segoe es oat 225
Miles v. Clark... ...c.. ccs sees cece eens 4 BOsW. 6825.6. is res aceis.one ab avesearice 100
Miller v. Coates.......... ccc cece ceeeees 2 HUN, 668s osc ciescoes ede wkd waias 484
Miller v. Eagle Life & Health Ins. Co....8 E. D. Smith, 184......... ...... 350
Miller v. Ins. Co. of North America..... 1 Abb. N. ©. 470.............4.. - 342
Miller v. Perrine... ......ccccceeeeeceees 1 Hun, 620............. 00. c eee 66, 421
Miller v. Shall..............05. Kiraeeielee’ 67 Barb. 446 ...... ccc cece eee eens 59
Miller v. Sheldon... .........ceeeeeee 15 Hun, 220.............-.6. 50, 62, 304
Miller v. St Louis R. R. Co.............. 5 Mo. App. 471........... 0.0 e ce eee 541
Miller v. Tyler......... Siseda vieeatvistor ae BEING Me AT Esa ipa earulsiern rhein ted 9, 225
Millerd v. Thorn.............. e ¥sayeero BLN. Y. 402........... 0. cece eee 126
Milliner v. Lucas. .........ceese sees eee SHUN 496 tise ioes caaue dines ae vas 176
Mills'V: Davis css. oie eec ed ec eciey coe BONS Vs B49 wties! Ayana cahawne- sy 237
Mills v. Forbes... 2.22... eeceece cece eee 12 How. 4663 esas sion aacasinaoases 92, 115
Mills v. Hildreth.....................5. SINE Y Oke. acess ean es eee ae 282
MillsvVs Shualtssscujoaid camcaccwdosiessaterions 2 E. D. Smith, 189................ 420
Mills v. Thursby........... cece cece cease 18 How, 261.5. .a%6.swsccue ss des 119
Mills v. Thursby..... 2.0.0. cece eee e eens AL How. 129. 6.6 ccs ssceee ca eeies 82
Minick v. City of Troy..............008 19 Hun, 2583 66 ceecc ace a sand 344, 505
Minor v. Mayor, etc. of New York...... 5 Jones & Sp. 171....-......... 186, 336
Mitchell v. Carter........ .........00.. 14 Hun, 448........0........... 540, 543
Mitchell v. Eble............... 0-20 e eee 1O Wend. 090 sid. de einen easas 541
Mitchell v. Menkle............-. cee eens 1 Hilt, 148......... cee ee 412, 449
Mitchel v. Pike... ....... ccc e cee ce ees VE Han A142) ios cute ateatamanag wowace 27
Moak v. Hayes..........000c cece cece ene 25 Hun, 816................. 70, 82, 314
Moffett v. Sackett...........cce cence eee 18 IN Xi B22 ec istcialsaibie acacnaurna’ 294, 355
Molony v. DowS.......0eeseeeeeeeeeeee PADDING. secs dcusaias agrees 511
Moody v. Osgood ........cceeeeeeeeenes BEN 488 wc crate niceties gies 182
Mojarrieta v. SaenZ.......ece reece eens BOUIN. YS G4 i cccastce, weace avscote-wiasers wri - 219
Montefore v. Favilla ...........0.eeeeee 8 Weck. Dig. 198,.............2005 77

Montefeiore v. Favilla........... rere 63 How. 386 .........c cece eevee 111
TaBLE oF Cases. - lix

Page
Migpigoneeny Co. Bank v. Albany City by NN.) ¥.400. wsacnwcneaaessees.s. ANT
deca: Vi. MOLAR secs asicinewadionuecaacay TB ANG, Min 2D csse.6.c00cohibw ei osevasd wae wi 180, 287
Morange v. Morris...........0.000- eee 20 HOW. 257 ccceeesacieeenae gases 808
Morehead v. Holden..............00008% TCs PIO: Ri ASB csscawwieitceeusiares 46
Morehouse v. Agricultural Ins. Co...... 11 Week. Dig. 228................ 46
Morehouse v. Yeager..........0eeeeeeee TL: Wie B94 soncietaenane awasidosica was 182
Morey v.. Tracey sic ss. cscives once sees 92 N2 Vi S8lacesgsaiecencecsasuenste 104
Morgan v. Reid. ....... .. cc eee eee eee WADD: 215 sc00 ae ncws sien saxcmemaes 177
Moore, Matter of...........5 eereeeeeee G7 N.Y: S05 vcsccode. avewreces 237, 238
Moore v. Appleby.........ce ees eeeeees 86 Hun, 86862. icc tierce tenes 476
Moore v. Noble. .... 2... cece cece eee eee 58 Barb. 425....... alc aseaeatenrisias 448 .
Morris v. Morange....... ..... cece eens 26 How. 247... 0... cece cee eee 67
Morris v. Morange.........ccc esse ee eeee BOLING Va LTD chaecrearteein ancient “arses 210
Morris v. Talcott......... ccceveeereees OG NL Vis M00 ss scstss nae ares gienng tio win ss 284
Morris v. Wheeler. ........-.cceeeeeeene AB IN Ys 108 aise ts aig sieeve oieteroseierey et 231, 295
Morrison v, Agate... 0.0... ce eee e eens -20 Hun, 28.... 2.0... cece eee 806, 345
Morrison v. Morrison.......... ....00e- 16 Bun, 507 o06 cc edcedssedes 58, 59, 321
ee eee } 38 Barly, BOS. vxvvixnvnasvewanned 308
Morss'v:. Sherills csccissws ssanseaeceeoies 63 Barb. 21...........2.25 w... 048, 504
Moses v. Hasbrouck...........ee ere eet 68 HOW. 84.05 ccc cin cndeane cease 76, 94
Mott v.Consumers’ Ice Co.............. Si Dal ys 244 oscscssticsstscaccuevinace nad daanmes 481
Mott v. Lansing. .........ee.ee eee e ween 5 Lans. 516.......... ccc eee eee 64, 118
Mount v. Mitchel ...............0006 06 BREN Ye V0 ca icsscew ccraserd yeahs 299, 359
Muldoon v. Blackwell..............0005 BEE INE Wie CBG aca ercsavaiejascielet eisre taacecaie 275
Muller v. Higgins..............00. 00005 dE TOW B24 oinccies ey aneewaiors 508
Mulqueen vy. Duffy ..............65 eee G6 Wun, 209 casecssersiway dees 180, 336
Mundorff v. Mundorff.................. BOUIN. Ye G80 cc ccs enneena bananas 227
Murphy v. Haswell..........6. ce seeeee 65 Barb. 880........... 0. cece eee 508
Murphy v. Spaulding............. 0.08. AG Ne Ve S06. cas. axes sex eesnna ec 18
Murray v. New York Life Ins. Co....... 85 N.Y. 236 cccccessncwin sede eces 126
Murtha v. Curley ........... 00.0 es eeees 92 Ni Xe BO9icceeconawanene 474, 478, 479
Mutual Life Ins. Co. v. Hoyt............ BON. Y. 615.0... . cece eee eee ee 290
Mygatt v. Wilkins. .............: ee eeeee 1 Lang, 55.0... cece cece eee ees 851

N.

=
eV GH Bok. Hee tot SRDS sence. 170, 171, 172
TG OD conn asicnad 228, 807
Nat. State Bank v. Rising............... AGH, (O8iuc ccgoccerisenseore gee 46
Naugatuck Cutlery Co. v. Babcock...... Oo Min, AGT. weve ciwne wieltewews 843
Naugatuck Cutlery Co. v. Rowe........ 5 Abb. N. C. 142...... waa mea anaing 508
Neff yi Chutes: isiccanneseecsvewsncaoawns 12. Barb. 466. ccccece cas oa secsens 448
Nehresheimer v. Bowe.......-...005 6+ 8 Civ. Pro. R. 368............6. 306, 309
Neil ¥.. Abels iis viacaes nana sacatarinese 24 Wend. 186............0..06. 587, 540
Neil ¥. (PROUD josie us scuineinainn dae Meir BRIN YQ sa; crass vscansudactaaoaaad aeamrancle 177
Nelson v. Neell...... cece cece erence enes 12 Week. Dig. 161...............4. 525

Nesmith v. Clinton Fire Ins. Co ........ SAD be 14s. siaearesievnesened 524, 585, 543
lx TasLe or Caszs.

Page
New v. Aland ..........0.eeeee sree 62 How. 185........005 f aiigieichona og 365
Newcomb vy. Clark.... .......ee eee econ 1 Denio, 226.2... 0 ccc cece vniesceces 285
Newcomb v. Hale..........eeseeeeeeeee 64 How. 400...... siaig distanctsiereleiviotens 479
Newel v. Cutler.......... ccc eeeeeeeee 1D FAM, 74 sess sarevsrs siatecaresvennes woes. 365
Newel v. Doty........ sccceecneeeneeee BSN: YESS ase ine hedaewedawe vanes 276
Newell v. Wheeler.............0000000 A Rob: 190. ects aes vaiewns eeees 358, 359
Newhall v. Appleton. ..............008- 15 Jones & Sp. 88...........6. 528, 581
Newhall v. Appleton..............0 0005 14 Jones & Sp. 6......... «++. -d09, 520
Newman v. Goddard...........ec.ee00: 8 Hun). (02sec eset s cea see's cae wes 177
Newman v. Grieff..............00006 0s 8 Civ. Pro. R. 862...... .....eeee 496
Newton v. Pope...... eRe eee 1 Cow. 109s 0 sc. ea cc tessa aie 449
Newton v. Yale.......... cece eee eee eee 15 Week. Dig. 38..........000eeees 46
New York Cent. R. R. Co., Matter of...60 N. Y. 112........ ....005 21,44, 61
New York Cent. R. R. Co. v. Marvin....11 N. Y. 276...... 0... ees e eee eee 239
RCN Svat avant By B On MOE 4 At Alby Tad OVE ea nn mencnans 237
OT OL jeacinas naeiinae na waatnacee Gas
New York & Harlem R. R. Co. v. Haws.56 N. Y.175........... cece ee eee 13
Nee ee NG Oy otinaennnet 227, 229
ee t 98 PO Ae enti ach al eine. 282
r ot. & H. R. R. R. iy
Ai af BuCT Grn oh 0 Me WB aocnscasrasaneaie 518, 286
New York Ice Co. v. Northwestern
Pee ee ee \ 23 Ny Ws Gor cra edcesesieas aos 232
New York Ins. Co. v. Walden.......... 12 Johns. 5138...... 0. cee ee eee 187
ew Yor ilk Pan Co. v. Remington
ee Bir) 8b HI, 60s «dieu teadintaaraedee' 309
ye ial 0 7 1 7 .
N ae, eee i ue joa Hin; B67 choca reuenseoiees 487

New York & West Shore R. R. Co., { 94 N. Y. 287...215, 218, 227, 239,
Matteriofiicai2scccccetansesmlcues 240, 473

ee one econ Sues Te Ee 08 2g Pita B 0B seiko tala 480, 484
Pah cece cco) EN MR ee eaters teat ATT
Nicholas v. Nicholas.............0.005- 186 Mass. 256....... 0. cc cece eee eee 5387
Nichols v. MacLean............ seseeee 08 N.Y... 458). seas deauas 94, 95, 96, 270
Nichols v. Voorhis. .............0..00: MAN. W298 sas cr owene ane maoen 207
Niles v. Battershall ...............0000- 26 How: 9352 cceastedguneiceceaesd 70, 82
Noble v. Prescott ..........05 ceeeeeees 4E. D. Smith, 189................ 22
Nolan v. Harris........  .... Sinise 62 HOW: 409 .ainvcsatinuetaseres 506
North v. Sergeant............ adtardigowtnts 83 Barb. 850........ 0... cece eee ees 508
Northup v. Jackson............eeeeeeee 13 Wend. 85......... Sertheniiewe ies 10
Noyes v. Childrens’ Aid Society..... ... TONS Veil ace sicn cas andiewscs 225, 298
Noyes v. Hewill....... SxisduGmmemenncees 18 Wend. 141......... .....08, 878, 448
O.
Oakley v. Sears......0c.ceeeese sense eee 7 Rob. 111............ 524, 525, 580, 534
O'Brien v. Browning.........eseseeeeee 49 How. 109........ 0.0.05 ceeeeeee 33
O’Brien v. Merchants’ Ins, Co........... 48 HOW, 448) cscs sada e reas Seulsa es 535

Oakley v. Van Horn... .... pGesntce oh us 21 Wend. 305... ...... eck sae v ES 378
Taste oF Cases. lxi

Page
Oberlander v. Speiss...... die aia averniose voi 04D ON Yi(0 iis vavinsvemiewasds as 174
O'Gara v. Kearney........0.000 eeeeeees MEN Y ARB anecoedisawuwre aes 194, 195

; hamplain R: R.
etn ee PGB N.Y. 178... eeesseess ens 18, 218
O’Gorman v. Kamack.... ..........00 § Daly; BL. sco0ssiiccueudiiheees 173
O'Keefe v. Shiperd..............0. sees 28 Huns 171s csesiseseesicad Saas s .. 496
Oldfield v. New York & Harlem R. R.Co.14 N. Y. 810.............. 184, 276, 282
Olendorf Vv. Cook .........cceeeceeeeeee 1 Vans: 872 ssasscmwcaciwaceen sede 192
Oliver v. Trustees First Presby. Church,.5 Cow. 283........ .20.seeeeeeeeee 540
Olmstead v. Reed. ............ cece ee eee % Civ: Pros Re 1906..c00s eiescieeinie's 8 46
Onderdonk v. Emmons....... ......-+- 9D G04 a.26 aoacesseniave-cvsrader, saath dete-o 453
O'Neil v. James... cece eee e eee eee 43. NOV BE. sien teaecaeca alsa anaes 185
O'Neil v. Keokuk, &c. R. R. Co...... +45 Towa, 546....... ccc cece ween oe 542
Orcutt v. Cahill. .... 0.2... eee e ee eee 24 Ne VIO (8 gercctisanuee eaten ss 451
O'Reilly: ¥, aD Css cisdeasestewserecaee 28 How: 408 ci.cdiateviencioncaniesy coe 223
Ornes v. Dauchy.............55- ayes erator 82 No ¥ 448 ws nanwouaci serene be « 185
Orser v. GrosSMaD .......scee cece eee eee 4H. D. Smith, 443................ 450
Osborn v. Nelson ...........000. eexeges 59 Barb 875. secawessvsvias ces veces BVT
Osgood v. Manhattan Co............... BO Cow. O18 sc54 saa sadiaie weds iis 176
Osgood v. Toole ..........ceceeee eee ees GON. Yi TB cag as ciessat oecaee wares niacass 188
Ostrander v. Harper...... ......-..000- 14 HOW), (Giese os sae c td ceeeanaaicais 38
Ostrander v. People..............-eeee: 28. HUD, 3B)... eecictee news Faycecccens 548
O'Sullivan v. Roberts...............0005 7 Jones & Sp. 860.............0085 Lv?
Otis Vi SPenceF «04 wiscsciectuerwade see se SHOW. UA yas crewmen sin ey Coeees 83
Ovenshire v. Adee... ...... cece cece eee 27 How. 368. ........ cece eee cee oe 428
Overing v. Russell.......... ccs cece een 28 Hows: TOV sos sieeie ve gcd seg he aire
Owen v. Hudson River R. R. Co........ BOUN Mi BIGy «exe eee eae cae eaiees 182
Owen v. Warburton. ...............2005 4 Bos. & Pul. 826................. 548
P.

Pacific Mail Steamship Co. v. Irwin..... GT BAD 2072s ony cece oes ae eee ees 305
Pacific Mail Steamship Co. v. Toel...... 9 Daly: B04, oc ceccuey sais ai ea 331
Paige v. Fazackerly ...............000- 36 Barb. 392..... Ree eyes ee any 275, 449
Painton v. Northern Cent. R. R. Co.....883 N.Y. 7.0... ccc cece cece ee ees 187
Palmer v. De Witt.................000 42 HOw: 466 oes cccs ccc cc eae Gawes 486
Palmer v. Lawrence...........0..0-000: DN Y.0400; sau cesaewed sands 171, 297
Palmer v. Lorrilard ................000. 16 Johns. 848 ....... eee 285
Palmer v. Mulligan................ 0... 8 Caines, 807.00... eee eee ee eee 525
Palmer v. Phenix Ins. Co.............. BO) AUN 224... esacrnamaucmuannw geceke top 128
Parfitt v. Warner .......... cece cee e cues 13. Abbe AT eco s ute eacdex a cue gue: 97
Park Bank v. Titton...............0.008 15 Abb. N.S. 217..........0000.0.. 177
Parker v. Baxter..........cccceeeee eens 86 MY 08G pecan cass e93 503 vies 288
Parker v. City of Cohoes............... 10 Hun, 18d eee esd. ces eee 338
Parker v. Eaton... 2... 2... sc cece ee ee eee 25 Barb, 122.3 ccc cscs case cease cwues 449
Parshall v. Klinck ..............0e ee eee 43 Barb. 293 ........0 6. cc cece wees 528
Parkhurst v. Berdell ...........020-000% 87 N.Y. 145............. aires igtars 219
Parsons V. Brown.......-...seeeeeeee) 5 Hun, 112.0000. cee e cece neces 342
Parsons v. Coburn...........0. cece eens 2N. Y. Sup. Ct. (T. & C.) 824..... 144
Parsons v. Hayes ............... Here taaie 18 Jones & Sp. 29.......... 50, 62, 304
lxii Taste or Cases.

Page
Parrish v. Parrish.......0...seeeeeesees 42 Barb. 274..... Rgiticacie ey 33
Parsons v. Sprague...........seeeeeeeee 80 Hun, 19......... ccc cece eee eee 307
Parsons v. Travig..........cecceeeeeees 2 DUCE, 6592-5 sessnnas srneraw eroieaare - 90
Parsons v. Winnie. .........ceceeeeeeee 17 Week. Dig. 286................. 60
Patchen v. Devin .........ccecseenceeee 87 Barb. 480.........0... ee eeeeeee 401
Patten v. Elevated R. R. Co............ BTN We ABS asin siete cae os is 220, 228
Patten V.. Stitt. cccccscecesceaassswes se DO. Ni Y 5 DOL: asics tneiesbans aenctiionvs 480
Patterson v. Hamilton...............6.- 26 Hun, 665. sceniewaveasoanceas eres 40
Patullo’s Estate... ....... cc cece cence 1 Turek, 106: s ccisssoswevees aesivere 98
Paul vi. Munger vcwescsccew cine casses sie AT Ns Xe 469i cau cigs cosas evecs 220, 228
TSMC Fe Uae none Weuiea Pe }19 Week. Dig. 78.02... .sseeeeeeees 524
Payne v: Beckeriscccsisesscanasswaacies 80 N.Y. 1088.2 vee caw cesces ceeaseys 206
Peake: Vi Bell sia. wyadawsedadevwieetedie Y Win; 464. se s2c cascuc ties ar 608 503
Pearson v. Fiske...........cccceeeeeeee MADD. 419 po ciesscesoseicineibinidssesscssie sie oa 447
Pearson v. Lovejoy..........sceeeeeeeee 85 How. 193...59, 60, 363, 364, 419, 420
Peck v. Cohen. ....ccccccccserssccseees 8 Jones & Sp. 142..............05- 338
POC Vs TAU CPY wsaserc se Sancie nsetsye sia oieieie Siatals- 2 0.8 30 Barb. 655.......... cece cece eee 525
a ne a PT Ao0 beet aiates 505
fe ee ne ee OHH 286 cn ie waar eens 356
ee ii ee ga Sapte sil daa as 345
Br re EE TON OO caged aaetcnten 284
BOCK Wi POC je lasudsisé saves cara ta ave oes OO EWN 181 aes ciate: eases chris Seg e dc 40
Petrie v. Adams .............0eeceeeeee LANG Ni OF ee cae eeceeealte sige sod 206, 207
BECEIS So MISEY Coase EAtnS 12, 2 bY Barb. 204........eeeeeeeees 77, 78
People v. Alker.......cccccceeccceccees 12: Hiiny' 88)s.4 ses ends oessaceeasenes 83
People v. Allen ...........c eee eeeeeeees BOUN. YY: O88 yaccnsesnseaweecesiwn 16
People v. Assessors of Albany.... ...... 40. N.Y. Wdisce cae ae vidave ses 15, 16
People v. Bergen... .... 2.0... c eee eeees 68 N: YY: 404. ces cee enc Bis cusSanacaus 4
People v. Betts ............. cc eeeeeeeee 55 N. Y. 600.............. 7, 15, 17, 239
People v. Board of Fire Commissioners. .82 N. Y. 858.........-.0ceceececee 16
People v. Board of Police............... TR Ni Ys ALG stints cstente eee gece 15, 16
People v. Board of Police Commissioners.82 N. Y. 506....... cc. ccceeeeeees 214
People v. Board of Police and Excise....69 N. Y. 408............00.000 wee 16
People v. Board of Police Commissioners.86 N. Y. 639...........cccecceeeee 229
People v. Board of Police Commissioners.93 N. Y. 97...........0cccceceeees 16
People v. Board of Police Commissioners.6 Hun, 227..............cccecceees 16
People v. Board of Metropolitan Police. .89 N. Y. 506......... ccc ec eceeaee 15
People v. Campbell............. 2.00000 WO Ne Yi 496 si scnenanaomccavacs aaa 228
People v. Campbell.............eeeeeees Be INL Wah. oo scsc curd eonig a Seeisiae alt 16
People v. Canal Board.................. 7 Lang! 220. ies coin eae adindsaens 17
Peopley: Catal osccscssiecnviaiseeaes 1 Park. Cr. R. 256... .........0.006 536
People ve: Came yincscicsyciscnsGinkese aes QO AUD ADs as Pe isd oe earas coy sa epnlomars 363
People v. Chautauqua Common Pleas ...2 Wend. 618..................005. 98
People vi Clyd@ss sss 20065 6n sainewsiews ad 69 N. Y. 603.......... 220, 226, 228, 288
People v. Columbia Common Pleas...... L WONG. 29% acsieicisinnay aaee toes 543
Pcople v. Commissioners of Cortland Co.58 Barb. 189. ........cccecceseece 19
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.
People v.

TasLe or Cases. lxili

Page
Commissioners of Excise. .....61 How. 514.......... cece eee eens 12
Commissioners of Highways...80 N. Y. 72.........cceeeeee cence 15
Common Council ............- WBN: Ys BO sccccre sagen aevenes 222, 232
Common Council............- 80. Hun, 686 cccvies vi sane edvcceces 8
Common Council of Buffalo.. ..80 Hun, 686.............000005 306, 312
Common Council of Troy ..... B20 NM. O70 usc ceed cea aai Reece 8 277
Contracting Board ........... 46 Barb. 254....... 0... cc cece eens 138
Coopers sien scsesintunmare ses rai AL HUG, Oho ore eddies ene easin oe 14
COVillsssedbownswmaeussed dees 20 Hud, 460. sscsccwieei vances se oes 14
Board of Health.............. 33 Barb::044. occ aurns wesionaignees 14, 15
Daly sccsntewresd aortas sae is 67 Barb. 825 .......... ccc cece eee 14
David... as.4%. s4acessvececwees 15 Hun, 209 wessa cccccesvecene’s tes 363
Dennison............-. 22 cee ee SAN: Vis 222s vead eh cs vets oeeese ees 296
Dennison...........0..-2e0005 28 Hun, 328.0. ceve cess cae awae ss vies 14
DO WEYs ii cee cae icadciet eaees 1 Bun, 529.503 ceva se ose ee eee saree 17
DoOn0ntIe.. 023 see estes ane ee 16 Hun, 4185.00. ..00s.neke ev eeed sede 312
Duchess Common Pleas....... D COWL84 ¢ is.c cere ridesese diecast 98
DWYGP aie ee tea edawee ease 90 N. Y. 402....... 2... 4, 218, 2388, 366
Hggleston ....... cscs ee eeeee 13 How. 123 ....... ccc cee cece nee 11
WEDTISs oases ose ease eed 16 No Ys B26 occ see arene waceewea eareneinaes 228
Fire Commussioners........... EIN: YY . O08 5 sence seahtioe ieee ecatiee 229
Fire Commissioners........... BO Fain, STG sicis a 5 2ietcsie'y eityets aa eateceeeins 16
Fire Commissioners........... 5 Abb. Ni Ce 144s snwieees tees es 477, 485
Power vis wsscniacccuwde eave wv OO IN: Vs Clo nwsevewdecwnsawaes 198, 248
Freemans cowie saw se oe ves ses 8 Lans. 148............... gussets 17
Pronch ..cwccsccwnses cea caces 92 N. Ys 806.0 cac cs seawes ace 16, 17, 278
Genesee Common Pleas....... 4 Weend:208: 5 ssicns cisions ve daereaanees 74
GHIDDONE ic aseis creas eee ecsisacecerernne 88 N. Y. 626. ........ 215, 229, 240, 473
Globe Mut. Ins, Co........... 27 Hun, 589............005 306, 340, 345
GOME ajar ois ad naleie we diaaniedeade ee DING Va 484. 8 osc aacanetnwein aun q
Gonzalez: «: csccauasiwneon gwar BONO 40s 05.24 eu Saag vaneina wcll 177
GRACO: «thine Haka someone 16 Week. Dig. 349............ 02. 14
ELBIT vicars sence oe Secon Bk ee neni 29 AUD 125: masta paix euecine ss 17
Hamilton .. 06666) eases cerns POLADD: Boo esi san eA anees 193
HANNS ies dasisnseacewaeess VEHOW: 85: sigs sisiaeacansieacass 537
Ilerkimer Common Pleas...... 1 Wend. 810 cciacaarnasemseviene hee 98
Hileses: ove ecaa wn sen ewlosasins 53 Ni Wedd nk ae cee ediores 228
HitidSsccccswevee sa yeas cx cage 80: Ne Ys 410 e casew scam sdeeec cee os 103
Horton ss s.0e2240 aden eee NG 64 Ne YY, SB sccawscaeadense s 208, 206, 207
Hurlburt) sscacccteasia basins dues AGN Veo VIO sos cron son tele Rake Saks 15
JONSON oeccievere douse cesniere 8 odes S08 BSN. V.08 ss 55 844 ceedereaniwvenen 191, 193
JOUPAH, <j sa cotirdeee wuialdcwns 1 Civ. Pro. R. 828........... 0.000 16
Justices of Marine Court...... 81 N. Y. 500...............00. 228, 232
Livingston ..............0 000 BOON. Me 0G iinet aes sale ete geeann ate 192
Livingston...............008- TON Xie BUD caine owe as's ge eas as aa 184
Lockwood..........00eeee sees SEU B04 cae lsecite deans PAs t sa 193
Lynehin.'ocssuseveasaGets oeae es O4 Ne Ys 68livcsine aweaacave sass 82, 34
MeCafirey ss iiss asancvecercase AR Barby B30 owe a0 eae sees wea See eee 194
Manhattan El. Ry. Co......... 19 Daily Register, 183...........68 83

Mathews..........seeceeeeeee DOIN. Ver Olid) ie sacstind ones Qeleets 193
lxiv Tasie or Caszs.

Page
People v. Mayor, etc. of New York..... 2 HN, 9. case ssuneioswanives ee m.0 0K 15
People v. McGuire.......... cess eee ee 2 Hun, 269. 60% denis ose 180, 525, 527
People v. Monrce Common Pleas,....... 3 Wend. 486............0-.ee evens 98
People v. Morrissey .........cseeeeeeeee 1 Sheldon, 295.. ..........0e00eee 542
People v. Murphy............eeseeeneee L. Daly 5 B68 cc cccsincsdieiiie tore sete sce vs 321
Pe .. wmen i-
eee 192 Rs OP naasecuatescareacee 347
People v. National Trust Co............ Ol Hi, 20.1. cecwcins wreneie wee were 4
People v. New York Cent. R. R. Co.....29 N. Y. 418.... .......05 216, 218, 293
People v. New York Cent.& H.R.R.R.Co.28 Hun, 548..... 0... cece eee weer 340
People v. Nolan .......-.ce cece ee ee eee 68 HOW B28 jwi sasemwainwaiiionenas 83
People v. Norton...........e. ee ee eee eee BO FLUID, QT Te siscd sale duinie sekistorolea arose 477
People v. Orleans Common Pleas........ D Wrennds 1292 sis ities divetare che epaiens cise. 98
People ve Perrys is: 6 sicrsisis aaiss ain opiorgna sists 16: Flun, 461 0.3. cuseerisgurcae eeu oes 312
People v. Phillip.............. 22s scenes OT ING Wis 082. sorineacieisnpsuaisaciors 277
People v. Randall..............00. ee eee 8 Daly, Slssus esacsameseseinwese acs 479

Ty Vv. n k in;

Hey : toned ee - “eae ae = bee Hany 298: sor aiesineensesries 264
People v. Sanders...............0.0 000 8 Bun; 16 seccccdceurscxan’s ovben es. 16
People v. Saratoga Common Pleas....... 1 Wend. 282................ 74, 98, 422
People v. Schoonmaker................. DO-Ni: Vis 499 execs wa sdaas 220, 228, 237
People: v: Scottss ciisadsevewinwecnean wens 6 Hun 566 ssicccacuscacy siowemenawes 108
People v. Seward...........c.0eeceeeee 1 Wentt $18 wae sisavesos vvvexe ces 12
People Vi Sinith. cscs sccsccsvioevess sed. BD N.. Yo G2 iaccwios Meccaewes .....15, 16
People v. Smith. ..........-cce cece eeeee 80 N.Y 628i: cies ccasicache cae 237, 238
People v. Spencer........ ......2 eee eee DONG Yiod save ia sclesietan hase 15
People v. Spicer........... cece eee ee ee 34 Hun, 584.............c cee eee 52, 56
People v. State Line R. R. Co .......... 16 RUNS ABB ee cisecsceosie odie arte sieraewiases 21
People v. Sturtevant..................4. D9 THOW 2804 - cicemaisesiecny aceon nee acer 485
People v. Supervisors ...........0..0005 NONI: Mic BAB. a5 Ss iaseuesesai seiecate cleveies 285, 294
People v. Supervisors of Queens......... DU 198 i, sis costs aeecoidgactieucas Sees sane 15
People v. Supervisors of St. Lawrence Co.25 Hun, 181 ............ cece eee 14
People v. Supervisors of Livingston Co. .43 Barb. 287...............0 000 ee 14, 15
People v. Supervisors of Madison Co... .51 N. Y. 442.0 oo. c cece cece eee ees 16
People v. Supervisors of Ulster Co....... 65 How. 827 0.0... eee ee cece ee 487
People v. Superior Court of New York..5 Wend. 114.......... 222, 225, 527, 528
People v. Superior Court of New York. .10 Wend. 285.............. 524, 525, 528
People v. Tax Commissioners ........... SOUN. Yi, 600 nae deiiid ammnnweeexisey 228
People v. Tarbell............. eee eee es 17 How. 120...............0.0-. 62, 118
People v. Thacher...........-...-00008- BON. YO 2Gie ss deseviesageas sae 235
People v. Townsend..............e0000 10 Abb. N. C. 169..............06. 14
People v. Trustees of Ogdensburgh...... AS ING Nis B00 vse icicias wisest a werk eaiereie os 16
People v. Trustees of Palmyra.......... 3 Hun, 6400. sa vcascis veveeee ces 14
People v. Tweed.......... eee ee eee eeee GBiING. Yeo 9 4s ais ois vee eae 226, 227
People v. Village of Nelliston........... TOWING Vo 638: scetegeainw aaeoeed 297, 298
People v. Walter... 0... ccc cece eee ee eees GSN CY. 208 ie ee ees dene heed 277
People v. Westbrook ...........0..e eee 80.Ne Yi 152. cee ices cer esouseuys 228
People’s Bank v. Heerdt.... .. ........ 19 Daily Registcr, 129............. 343
Perkins ve Fills. cesis veeseecsecusce ees DONG Mis BGs ncctien dovaueatas 148, 144
Pennie v. Continental Life Ins. Co.......67 N. Y. 278.......... 0.000008 204, 206

Pennell vy: Wilson .........ccce eee eeeee BD Rob: 624s ic cavcsaxce caee exces 4%6
Tasie or Cases. lxv

Page
Perrine v. Hotchkiss ................00 2N. Y. Sup. Ct. (T. & C.) 370..... 144
Perkins v. Ailliscs cess steer sesstieisiows 56 N.Y. 80ianivaws ye see sees ot wes 288
Perkins v. Stebbins .................. 2609 Barbi O23hcccaateareias eevee nas 10
Peterson v. Rawson.............eeeeeee BAN, Vs 800.0. se ekatived sa vtaces 279
Perry v. Lansing............-. cece ee ee es EF TAU, BA ors ie tac oalddawievsiess 854-34 343
Peterson v. Walsh.......-...-eeeeeeeees Daly: 182 aves saeaes ade sueeee . B54
Petrie v. Fitzgerald .................005 2 Abb. N.S. 854... .......0..000- 106
Pfeffele v. Second Ave. R. R. Co........ D4; Han, AQT, ciiereseinteiete, xpos, oc wae 181
Pfohl v. Sampson...........-.0. cece eee DONG Ye TIE» css tones aeons 220, 228
Phelps Vz Bukéts cso: ccs. sagraneasenceds 60 Barb. 107 ; 41 How. 287......... 6
Phelps v. McDonald...............-..0- 26 Nu Ve 82 ionssscvewmewsecgwer ess 174
Phelps v. Vischet. cc ccecccess aoousscen BOON: (Ys 69:ccia: see nivsewsies dante 287
Phenix v. Baldwin..................565 14 Wend) 62 c.h0: ccc aeatedvaeee se 534
Phillip v. Gallant .......0 ce... seeee eee GOIN: Ne oO caste a scraecsaes wid 174
Phyfe v. Masterson.............0eeeeees 13 Jones & Sp. 388.......-.....08. 545
Pickersgill v. Read... ... cc cee eee eee eee T Hun, 686...........0-00. 39, 57, 60, 65
Pickett v. Barron .........5+ seeeeeeees 29 Barb. 505..............04- sane 476
Pilgrim v. Donnelly........ geaa’e kG ore 1 HOW: NEB Robs acacia wiles 487
Piper v. Van Buren...............-00- 27 Hun, 884.............04. 60, 211, 341
Pittive Davisony oes ceveac dessa x nie ase 87 Barb. 97; 18 Abb. 129.......... 6
Pittsburg, &c. R. R. Co. v. Porter....... 82 Oli0;, GeBicis vee vdals ee aves s 587, 542
Place'y; Howard oes.cs ve exec cv yedusss a eve 22 Week. Dig. 801................ 223
Plimpton v. Bigelow.. ...............4. 93. N.Y: 002. seas ceva wierveomebesas 219
Plattvi Plattiwwscswsscvs savesy ses. e444 BS IN. Ys G40: owties wee asies stiearcdies 279
Plate Vi PIR wecccsetisgacend toca seer ee G6 IN: Ve BOO» vaceuie tek, dccreagureine 217
Platt v. Munroe. ............ eee ee eee: 34 Barb. 291 ..............0,6- 529, 530
Platz v. City of Cohoes.............0005 B ADD. IN. Go 092 oi cece este cbs cea 20
Plunkett v. Appleton............... 008 9 Jones SSP. lice ceewnne ceeds. 5387
Poillon v. Volkenning...............0.5 1A EEGs 8853 vavewsle cchewatn saa tows 166
PoUOCK MAMONG ss toca sete cad bent geeks 416. D. Stith, AD pois. ccden cee cae 447
Pollock v. Pollock .............00eeeeee TAIN NG LOT somsaceiuen eaeea's 280, 281
Pollock v. Wannamacker............... 6D How, 0S ye sis see eee ced eee 501
Poilock v. Webster............0.000ec es 1G Fan VO oko dais woas weaned a at 851
Pomeroy v. Hulin .......... .......0.- T How: 1Gle esa as cawosewes, Genes e 432
Poole v. Johustoa................08 2 82 Han, 215 sccssaewe x 133, 139, 318, 316
Polbamus v. Moser.......... eebyeeys eas T WOW: 448 sesecaciedenci suscaseisinus eauees a due 83
Pollet. LONG. is fo2.4 6s cece caes wens DOIN V5 200 Li ices aay Sih ewed te DOL
Popham v. Twenty-third Si. Rt. R. Co...16 Jones G Sp. 229...........2.... 85
Potter v. Carpenter ........... 00-0 eee Tih Nis Mrs, Waneaclacen dea ene aeaeues 280
Potter v. Markham,.............. 0. DO HOW. B90 inci cacieus aun eaccee -. 492
POMter Vs COW: noscnsa Sehoieesnecsees: ee LLU TN OFS einen g aoc rev in gchar eenche devotes 453
Porter v. Cobb........ 0... eee eee eee 25 Thun, 184...............0006 469, 490
Porter v. Parks ....... 0... cece cece eee OUT Gi siaconmontulintattihe cae a sade 173
Porter v. Parmly.............2.-0-00 28 6 Jones & Sp. 490.............0.04 20
Porter v. Smith.............0 20 eee eee 85 lun, 118 .......... 22, 124, 144, 334
Porter'v, Tridla..ssccssesscesswisaccnes 84 1), $85; esa xs sorgweos aad. eee 583
Porter v. Waring .............-06- ve es OO NG, Vi Ra0s attics ei aucaecetewart decks 163
Post v. Doremus.............. 6. tals fs AOQUING Vig Bl lick ag nisastictins weecereaten 82s 80
Post v. Hathorn....... ccc cece eee eee eee BEN. Ye 14 Foie decides wee 512, 520

Powell v. one RSpavesarwinlandia ousWa,aseiornodei aed 42 Barb. 24...............526, 527, 528
Ixvi TABLE or Oaszs.

Page
Powell v. Waldron..............0 ee eee 89 ING Ye B28). os vsacee stds ieiere acta 275
Power v. Village of Athens............. 1) Hun, 10 ice osneuwcs anes en aaess on 106
Pratt: v, Alleticccscssssvigas seasacesues 19 How: 450.2 ccsswvewieseccceeeus 483
Pratt v. Hudson River R. R. Co......... OLN: Ve B08s ccscxeceieveszes oes 166
Pratt v. New York Cent. Ins. Co........ BON. WV. O05 isscccasevesrsasesaea.: 279
Pritt. Ve States cauracercsionacentiee daa. ¢ DSi Mis8 (BOS). ced cacscersciy isc ak deen 542
“ NC 2 jacsmenaes = - {19 Johns. 244.0... ..cc cece eee e ees 22
Prescott v. Tousey.....0 .....e cece ences 17 Week. Dig. 58.... ...... 22-00. 22
Preston v. Eureka Art Stone Co......... SA Cal. 198 cacciwninaranvacssae wees 535
Preston v. Morrow..........62 ce ceeeee GON. Xa bQcesigen  wiauenye ene 219
Price, Matter of.........0 cc. ee eee ee eee BIN: Ye 28). cc casein cagentacs 6
Prieervi Kevess ov'e aise vensageneearc ess 1 Hun, 177....... 144, 499, 518, 520, 521
Pricbe v. Kellogg Bridge Co ........... UT Ns XO sae ee sasece ties Saaraie since 182
Price Ve Price sescoxnéanewaviialvokoumuates 85 Hun, 482.............. 353, 854, 525
Pringle v. Leverich...........0.06. cee 1 Civ: Pro. Ry 892 ceviesesw ie sasues 90
Produce Bank v. Morton... ........... 10 Jones & Sp. 124............ 358, 515
Produce Bank v. Morton .............4- OT ING Ye 199 i asecannueceyeres 203, 210
Prospect Park, ete. R. R. Co., Matter of .85 N. Y. 489.............0+-5- 227, 239
Prospect Park & C, I. R. R. Co., Matter of 67 N.Y. 871.000... 0.0. c eee eee 482
PYOSSED’ V.. SCOP Ss, csi cose idea nacwii esis an 5 Barb, 60%: sassa seer ssegeecee da 450
Protestant Epis. Pub. School, Matter of..86 N. Y. 396...... ....... 476, 4.9, 485
Provost v. Farrall....... 0.00... c eee eee 13 Hin, 308 ces sce scaeewesss mee 482
Pugsley v. Kisselburg...............665 LON, Yu AQisnivicewna wees we +e. 208
Pultz v. Diossy.......... ieee lecular a 68 HOW. 270.2 sees ceseeess sees 10, 455
Purchase v. Bellows ........... .-..055 16: ADD 10D a tay decease nde anaewes ATT
Purchase v. Mattison............... Let Ms CU sa nteaseste Bares 802, 354
Putman v. Hubbell...................4- BOING Yi LOG: ccc say scereoc eee ayeucns Gudhcusiond 280

Q.
Quackenbush v. Leonard.............-- 10 Pale, 18s oss vec a 34 saz vieres ire 76
Quick Vi Wik0ts. eccocs sisedeseavnedis 52 Te SOR as eek a> wae s as BRS 472
Quincy ¥; White sssenccsse crescents 63° Ny Vs B70 xa semendenese cenws 280, 291
Quincey Vi Young occccacesstsasnesese 68 N.Y: 604) vas ccacscsesainicans 64, 292
Quinn v. Halbert....6 562055000 s ects ce 52 Vite 858 ssaceseas yg iaanaasaeAs tes 539
Quinn Vi Moydisc.20s<s0e5. acsideies ey 1 Sweeny; 253.02 .c0sc84dscstaeeans 526
Quinn v. Long Island R. R. Co.......... 32 Hn, 88) ccccccea sedis seeeaas 505
Quint ve Wed 3 canary an cae ee a see es 6 Hun, 350) oc. cheek cake ccasenes 377
Quimby v. Claflin. ...........0 0.0... eee 2a Hui, OL svseeeuneees Aa eraies yu 3809
Quimby v. Strauss.............. coma: SON: Y Bb S. ins otaavciaaun Srnes 179
&R.

Rae v. Mayor, etc. of New York ........ G2 Ne Xe O8la sieeve esas uns ceded 228
Radway v. Graham ......... 0... epee AAD C408 26 cciewisleg eawie AGAR RAE ORE 20
Randolph v. Loughlin...............085 48:Nu YAO C ks cago caege ceed aatenss 46
Rankin v. Pine i iicsscecessceeceeeeeeaes ANDY: 409). isecind weaiewera teres hess 53
Raphelsky v. Lynch.............-20 eee 2 dones & Sp. 8l.................. 527

Raphelsky v. Lynch...........eeeeeeees 48 How, 157... cc ccc s cece ee eee §24, 525
Tasie oF Casus. Ixvii

Page
Raymond v. Raymond ............00+--76 N. Y. 106........ srnivarelerereroans 266, 267
Raymond v. Richardson..............0% 4 E. D. Smith, 471................ 452
Raymond v. Richmond................. SSN. Xe OTL siscs ce esa siewiume nace 182
Raymond v. Richmond................. MG IN. Noy L0G isis. 0' See's vets ea 71, 99, 324
Raynor v. Raynor.........0ceeee uence | 94 N. Y¥. 248. ..210, eres 518
Rathbone v. Morris..............00.0085 DQ Abb. 218 ic cccaaccsses tewicen 105, 106
Rawson v. Grow ....... 0. cece cece ee eae 4K. D. Smith, 18........ aiden Sloe scn 435
Raux Vi. Brand scien de5 ccdec a ccise cteincectes GON a Yi B00: cee tcsiees te easaae 280
Regaiv.LOzins psa eas. saad ohare sce aie BL Hun, 286 csiescs canna nw aeenaien 21, 22
Read v. Potter. ....... ce ccee nsec ences TL ADD: 418) sic se dec pew bt oseeceiereiere 83
Reading v. Gray ...... see cece cence eens 5 Jones & Sp. 79...........0. eee 506
Rector, etc. v. Higgins ...............65 A ROD, B72. ccaiscseyeepenencoaeees 359
Reed v. Mayor, ete. of N. Y............ QIN Ne O20 5 aves scott oak eees elociniats 293
Reeder v. Sayre........ cess eeccscceees RONG YeoUBO se ates sgn ded oe 166, 168, 186
Rees vi Snelliai vice ci cecvalse¢ ieee neon 8 How: 18bisc.cccesees evan sgeeeats 101
Reese v. Boese.......0.c00 cece ee secece 62. N.Y: 682x005 caeen sax 71, 118, 147, 288
Reese v. Rutherford.................05- 15 Week. Dig. 365,................ 291
Reese v. Smyth.........cc0.ccceccosceee 95 N. Y. 649.......... 130, 163, 337, 373
Reese V., SMUth: sees cies asrosavew a cerwes 95 N. Y. 645...... Rok ahtew es 51, 68, 211
Reese v. Strader ......... cc ec eee ve eeee DL. HOW: 492. cicenaitean cieaens 6% 525
Reeves, Matter of ....... ... cece eee eee BANE, Vi SOO ccccasandaemaceeees 227
Reid v. Vanderheyden. ................- 5 COW. 19s dics aenestoudages ontes 32
Reinmiller v. Skidmore................. DONA Ys 66 Liev cccsiinwes uewe save 180, 146
Reno v. Millspaugh .................08. 14 UD, 229) Sscedn oe ens 169, 437
Renoul v. Harris. ..............0. eens 2 Oand is GAL 0 ccties ssygp aia koa 59
Remington Paper Co. v. O’Dougherty....386 Hun, 79....... ccc ee eee eee 476
Rensselaer & Saratoga R. R. Co. v. Davis.48 N.Y. 187....... 0.00 cscs eee eee 289
Requa v. City of Rochester...... ...... 4DNN, Vi 120 is vies nia scare deenas 184
Revere Coffee Co. v. Dimmock.......... 29 ns 299 cimeawou eek ceux ss 469, 478
Reynolds v. Champlain Transp. Co ..... ON Howe Tens vend ashen eounien eek 585, 548
Rhinebeck & Conn. R. R. Co., Matter of .67 N. Y. 242......... 0... ccc eens 225
Rice’v.. Childsixsi0sgscoss becewes senses 28: Hun; 808 ic a nocecserwscwas sels: 7%, 30%
Rice'v. Ebley. esec2si8ced acacaioesawes 5B IN. Ye518 costco eves pe 218, 235
Rice y-FlO yd soccer tele ese = TV COAG IIe) 3 Sesotho nts 2
Rice v. Isham.......... cee eee eee eeeeeee TCV 8) 44. 5 cscct scott ee seeaineiaomean 171
Richardson v. Kropf............eeeee0- AT HOW, 286.0005 00s eacewwe carceweae 112
Rider, Matter of ............ cece ee eee 23 Han, N78) ie wsquauma wed ved ves 365
Rider-y, Powell ccc: expose ccs wees sees 3 NW, B10. s scceieceyaphnera ers 174
Rider Life Raft Co. v. Roach........... QUAN: Mir BU Bicc svi eres ds ened 278, 279
Riggs v. Waydell........... cece eee eee OBS NOY. 86 sscuiaocidan sag aces ss 226
Risley v. Phoenix Bank of New York....83 N. Y. 818..........-..0.000005- 11
Risley v. Squires..........ce cece eee 53 Barb). 280. .svasccciaswes save es 351
Risley v. Wightman..............6..06. 13 Hut; 1685620006004 cia soraewcen 167
Ritter v. Kreckler..............-.2-00005 44 How. 445....... ccc eseneee 70, 119
Ritter v. Phillips.............22 sesso 3 Jones & Sp. 388..............6.. 532
Roach v. Colbern ........... sees econ ees QMO; G2 A a iadsserdces gcd ed dsbak Rd Bo dedloeaae 584
Robbins v. Codman.............0-000ee 4K. D. Smith, 315................ 418
Robinson v. Plimpton.................. QB Ne Xie 484s oka e oroe avetendcilens 112
Robinson v. Raynor...........eee- sees 20 Neo Y e404). vara ewe xia seuumaae 398

Roberts v. Donnell............6 eee BL Ne Ys G4G. s iese-sl eidiasiciacesieties: OL
Ixviii TasLe oF Caszs.

Page
Roberts v. Failis.........c:eeeseeeeee coh, COW: 288 ca iceeasweennsaiesicenses 541
Robertson v. Ketchum...............66. 11 Barks O02 vceussiensaemwevesaes 449
Hee eet Done Sie ee bet HU NBO a vine eed xee rote 338, 508
Rockwell v. Merwin..............e ee eee 45 N. Y. 166........... weihiee enemies 163
ee Se jes Tpit toca eiciomadoceeheinunuce at
Rue'v. Boylev.cseccaccewss caves scans eon 81 Ne Yi 808 scecsstsers 198, 234, 237 238
ROGV: R0@icxccdsavsa tea years vars cease 14 Aun) 612 we. cee eee escore Seeds 122
Rogers v. Ackerman ..........00.eeeeee 22 Barb. 184.............ece eee 378; 449
Rogers v. King ......... cece cece ee eee 66 Barb. 495.......... 0c. cee eeee 45, 335
Rogers v. Laytin. ......... 00. cece ee eee BIN ¥. 7642 vaicccseu sien elancietae 272, 300
Rogers v. Long Island R. R. Co......... MOON. V. 00s. cca Danae nnaennerans 296
Rogers v. Moulthrop...........0.+0005+ 13 Wend, 274......... cc ceeeeeeeee 537
Rogers v. Rogers.........ceesceeeeeeees 2 Paige, 458.2... ccccee seececcees 496
Rogers v. Schmersahl ...........-206-. A HUD, C235 sicicinarereincig caress Sere eile as 298
Rogers v. Village of Sandy Hill....... “DENY Vs O98 5505 sic eiseces seateioe 207
Rollins v. AMeS.... cc. cece ee eee weenie 9 Am. Dec. 79, 81, n...........08- 539
Roman v. State... ....... cece eee eee eeee Al Wis S12 ise care ee eens eleven seeed 542
Roosa v. Smith ............. cee eee eee LY UD; 188 6 2 c:iscgsiescienass aes 181, 342
Root v. Great Western R. R. Co......... ADIN e Nn O24 cawideiaiwiow. ea cee oes ee 280
Rosebrooks v. Dinsmore.....- .....+6.. BE HOW... 188 .1ccccerecscreceecses 167
Rosevelt v. Linkert...............008- GTN.Y, 4h ssicnaeewanncwweguaess 204
Ross, Matter Of 1.2... ... ccc eeee ee ee eee 87 N. Y. 514..... 278, 279, 282, 283, 398
Ross v. Colby........- Ha wlemag'esieeiers aed 8 Hun, 646.6 sascicicecsenwaenen ses 508
Ross v, Ferris.....000:000 ceeeeeereenes 18 Hun; 218 a0 vvate vias sow ocaeec's 115
Ross v. Harden..........:cceeeee sence 10 Jones & Sp. 427............00.. 499
Ross V.. WO0d ss cc0sescaesos sa eeesdesees 10 Na Yai8s snwiea sities saieacee Gocien 13
Rowe v. Conley.........seeccecceeecees 2 Civ: Pro. Ri 424. cscwssicn cacecnes 126
Rowe v. Stevens ..............ee cece eee 2 Jones & Sp. 436....... ..... 338, 503
Royce v. Watrons.... ......see eee eens © DUS 8 lis ccotdiec cette statue seca eraroaecnan 186
Ruv@vie Perry) s.aca nsec ctu cegtaees anne ae 41 How. 885 .......... cece eee ees 447
Ruggles v. Hall... 1... ssc ee eee ence eee 14 Johns, 112 ....... 2... eee eee eee 534
Rundle v. Allison............... 2.00 eee SAN. Y 5180.2 aas icaaaminnaes ableend 176
Russell v. Burton ....... 0. cece ee eee eee 66 Barb. 539....... cece eee eee 342
Russell v. Conn..... ee. e cece eee eee ees OEE Ve 81 5 scctecosinwaduns aerate mans 292
Russell v. Duflon ......... cece eee ee eee 4 VANS 3999) 2... gente pawdciame enn oe 333
Russell v. State... . ccc cece eee eens 53 Miss. 868............... 02. eee ee 542
Rust v. Hauselt ....... 0... cece eee eee eee 14 Jones & Sp. 88 ..............00 480
Rust v. Hauselt ....... 0... ce eee eee ees GON. Y. 485....... 0... ccc eee eee 209
Rust v. Ketchum..........-.. eee ee eens AG: Gai DBA cc cisacs hs whew gare-are'y sees 533
Ryers, Matter of ....... .seeseeee sees 12 Ne. Yor daa saves sneak eine mienreterd 240, 366
Ryan v. Wavle........ seeseeeeee seen es 4 Hun, 804............. cece eae ne 143

8.

G., Matter of.........c cece eee e cence noes 85 N.Y. 680........ 0... eee seve e 283
Sage, Matter of ......... sees eee e eee eee HOON: Yin O20 isis: datlecacgaice oeaty 228
Sage v. Volkening.....-....+-:.see eee 46 N.Y. 448.000... cece 264, 267

altus v, Gemin ..... cece cece cttw eee eee 19) HOW: 288s .cctensawense veseeces 309
TasLe or Oasxs. lxix

Page
Salisbury v. Howe .............0... 2005 BT Ni Y. 12B os pis gisrenie Siideeewagees 275
Salisbury v. McClaskey..............005 26 Hun, 262.........ccc cece er evees 539
Salles'vs Butler issu cvev ses eceeleeseeiee eos 27 N. Y. 688........ 59, 60, 63, 133, 237
Salmon v. Gedney............e.eeee eee TSN. Y. 479........048.6 25, 225, 278, 301
Salter v. Utica & Black River R. R. Co..86 N. Y. 401...........-.0000e- «.. 492
Salters v. Sheppard..............0ee eee 11 Week. Dig. 189................. 321
Sanders v. Townsend...........eeeee00- 11 Abb. N. C. 217............. 478, 481
Sands v. Codwise.............. cence ener A TOWNS: “G86 adie: se ie'eis sinceid eas oe soa 211
Sands v. Crook.... 2... cess eee ee eee eee 46 N. Y. 564...........06. 233, 281, 296
Sanford v. Sanford..............eeeeeee DOIN. VN 6is.is05 oe edaweaeeey 88, 35
Sargent v. Roberts...............eeee ee VPICK: B8la ssewiceecawiewsaaeers 587
Sartwell v. Field........ .....eeeee eee 68 NYY. 84lin cee sasinds cesiesise vere 228
Savage Vi Goulds osscsesscicwwesdaseeras OO OW 5 208 oc os. sesjarserare sie gine: 483
Savoni v. Brashear..............22ee eee AG MO: S45 s:c5:0:5i a deine Saeiyoreerioo as 581
Sayre ‘v; Frazer wis cssascececuss sacees 47 Barb: 26; .< 5.405 osesseewewedss 309
Schaetter v. Gardiner .................. AYN Yo M04 ceed sotnemeieeaus 220
Schappner v. Second Ave. R. R. Co..... 50 Barby. 497 oc cscs ccassewscwevewes 540
Scheider v. Corby..........-..0eeee eens 15 Hun; 498.008 cs sas sateen wens 506
Schell v. Devlin... 2.0.0... 0.000000 0. 82 N.Y. 888. eee ee eee 163
a ea ie pe hi N.Y, 100) orig ee eee 187
Schermerhorn v. Anderson.............. LING Yi 80 sec evacuees wnceweegiaa 73
Schermerhorn v. City of Brooklyn....... LNG YE AB aces ce ges oes cetee wane 118
Schermerhorn v. Whceeler..............- BD Dalyi, 472i ices eae i eleasis sid Eada 19
Schermerhorn v. Wood.........-.....4. BO HOw? B16. c's cicise 5 pans Sassen 309
Schenck v. Dart ..........000 eee e eens DONG Wor Alc obs sb wast ne scenes 179, 398
Schenck v. Prame.... ........005 eee 63 How: 165.0 .025 cece ccc aceenwes 88
Schile v. Brokhabns.................... 80 N.Y; Giteneneocudesmaxa veces. 183
Schneider v. McCabe..............2000 4 Jones & Sp. 838....... cee eee eens 844
Schoonmaker v. Spencer.............05- DAN] WY.) B66: stake tae Soe sede aie 450
Schoonmaker v. Wolford............... 20 Hun, 166.......... 175, 176, 316, 383
Scholle, Matter of...............0... 000 TA UN TAS accicasearetne 841 nen aed 476
Scofield v. Whitelegge...............0.. BOUN 200 a voneuaue eee btaued 167
Scholey v. Halsey..........--.eeeee cues PON Ns ON Bias uiowin atu segs wih sete cs 192
Schreiber, Matter of...............00005 58 How. 859 1.0.2... cece cece eee 60
Schroff v. Bauer............cs.eeeeeees 1 Jones & Sp. 199.............20.. 336
Schuchardt v. Remiers............ 0.5. BO HOW OAs circiie's: wea ey bn ctelet 41
Schultz v. Hoagland ................... BON. Yin 404. os uc ages seve see es 279
Schweizer v. Raymond...............05 GADD. NiO. 878 ccc cee ceee cee as 535
Schwinger v. Raymond................, SBN. We 192s. cavviedesyiessed'ss 286
Scott’y. Varleyccscnissaccnwse yese cece oe 3 Law Bull. 29................004. 490
Scott v. Morgans. case ssi siversvenceaen. GEN: Y. B08. 05.8.0 6 asiaceieeceiane save 285, 3873
Scott v. Pilkington..................00% 16: ADD: 280i 50ccsc carats case aaas 285
Scott v. Waldeck.............. eee ee eee IZ INED) Bisse ned cacao eee acer ad 542
Scoville v. Landon...............00. 200 50 N. Y. 686..... sulsitibee: ane gaceibie ar 227, 234
Scroggs v. Palmer...........00.eee eee BO NOY. 648 scsicanicaxs yoete casts 212
Scully v. Sanders.......... 0.0... eee e eee BT Nis V0 98 ssc ccwic wwraesdesisiauies s-aiatate 207
Seaman v. McReynolds................. 8 Jones & Sp. 545.........00 000s 62, 118
Searles: Vi Cronk ies css sais nor dhariacnanrgns 88 How. 820 csccucaneaeseveseeea ss 452
Sears v. Conover.........e.eeeceeeeeees 8 Reyes, 118.06 scccecsccsiccccass 355

Second Nat. Bank of Oswego v. Poucher.56 N. Y. 348.............0ceeeeeee 288
Ixx TasBie or Cases.

Page
Secord v. Morgan...............0eeeeee 17 How, 394........ iakisitinetaN ys «+ 298
Security Bank v. Bank of Commonwealth.2 Hun, 287...........00006 -9, 215, 216
Seeley v. Chittenden.................005 4: HOW: 2650666665003 0s 20s adenwnste 507
ice oe Cote ae Tee PO Han, Boca ses Wanarecenn . Bit
Seeley v. Pritchard................0008 8 Ducr, 669....... cece cece cee eece 2
Selden v. Delaware & Hudson Canal Co..29 N. Y. 634. .64, 212, 227, 237, 535, 538
Sceman v. Reiche...................065 16 Week. Dig. 561................. 106
Sencca Nation v. Knight............... 19) IN WV BB Tic arose narateenresitase 201, 382
Seymour v. Judd............00..002008 DENS We AGA 20 tc Sects needs Bais 365
Shaw v. Davis. .........0. ccc cece ee eeeee 55 Barb. 389 .............. 350, 449, 453
Shaw v. McCarty... 0.0.0... cece eee eee 2 Civ. Pro. R. 285............... 88, 426
Shaw v. McCarty...............0000008 63 HOW: 2862006 e ee evened eee vices 405
Shearman v. Wells.............. 0000 eee 14 How. 522......... cece cece 68, 429
Sheldon v. Adams...........0..00ceeee 1B) ADs B05 case alecssa ute se aeie ate e's grb de 309
Sheldon v. Shearman................... AQ NG M484 watdeosaresen cog veh 174
Sheldon v. Sheldon.................0045 GLUING. Mis 804 he sauinadeegeaues oy 280
Sheldon v. Stryker................ 0008 at HOW. 88%) 4 scsiesseeeneewene su -.. 525
Sheldon v. Wood .........-. cece cece eee 14 HOW: 185s coceansaveewsouadead.s 129
Shepard v. Hill... 2.0... ec. eee eee eee. 6 Lanse: 887-2 scaeesceigeseweaatcves 342
Sherar’v. Willisi«cncsecs asec eases eee aus 6 Dans: 320 ns sceuecaceite cis tae aces 449
Sheridan v. Andrews.............-0-005 SION Ys 650.4 sunctnewienncceecas 57
Sheridan v. Mann...............0. 20005 DO HOW? 20l ia. 2scsc5ceeaccse temas 194
Sherman v. Hauser...............e00ee D4 ON Vo G26k oy ccc neantandinchaeaias 287
Sherman v. Felt..............2 00-0 eee DING Vo TOO sc240,4.2aeeeannan wea 237
Shearman v. Henderson .............+0. 12 Hun, 170 co. ccccuveccees cos 503, 504
Sherman v. Parish..............--00005 BING Ws 4882 acct ee san bicnnwewns 167
Sherwood v. Plauser.................0.. 94 NOY) 626 cassecacsanuteees enue 181
Sherwood v. Travelers’ Ins. Co......... 65 How. 198............... 74, 489, 492
Shipman v. Shafer.................008 14 ADD: 449s oiccc coaerateea yen eves s 340
Shook v. O'Neil... 0.0.22... eee ee eee 1 Law Bull. 88...................- 146
Shotwell, Matter of.................... 10: Johns. 204) sos cc eaeesawa sea se 193
Shotwell v. Mali..................2000. 88 Barhs 446 oye sew cue eves gee ee es 186
Shuliz v. Hoagland ...............-.04. BD ING Y AGS cds soci asa Sead 181, 287
Shultz v. Third Ave. R. R. Co.......... 15 Jones & Sp. 285............ 525, 534
Shuman v. Strauss.... .-.....-.e eee ee DEN. es 404s cam eine sas aude oes 226
Shumway v. Fowler. .............. eee 4 Johns 496.5 50.2 enwsveneswediese 525
Shumway v. Shumway...............4+ AUN. YG, 148accdseaw a vigaaseeey es 545
Sickles v. Flanagan....... 0 ..2.....005- NOUN, Vj 224. sim eemees ees yess 124, 281
Sickles v. Gillies. ............. ccc ec ees 45. How? 942.2 vanes eoxetaves 838, 508
Siegrist v. Holloway..........-....00eee Civ Pro. TR: SS8icacwus vesesiate es 509
Silkman v. Baiger.................00005 4E. D. Smith, 286................ 441
Silsbee v, Gillespie........ .. eee ee eae S- Abbe NS: W839 ses cecsenaaece's 3 . 62
Simar v. Canaday.......... cece eee eee 58 N. Y. 298 ......... 247, 285, 352, 507
Simmonds v. Simmons.............+-- TON: Ys 61 2 cciaaccensiese ia Queckodwe 220
Simpson v. Greeley........-... eeeeeeee 20 Wall Tb 2 cine ccccacmeadeesals oekes 85
Sinclair v. Neill.......... .. eee eee eee 1 Hun, 80......... Sti adler elope 180
Sindram v. People ...........0+ essere 88) NN TOG iain aie wetetinnre Gre 187
Singerland, Matter of........ Eshreamaeietes BG THUD, S70: veces tae aa ceadendabes 4t7

Sisters of Charity v. Kelly............-- GS NG Vin 6285 os cage qasmuntinaiateainecns 479
TasLe or Cases. xxi

Page
ey EN, Y. 490. vantnemreew 105, 217, 224
ae an A CBB cacy cacl mami 105
Skidmore v. Davies................2.0-- LOSPAIBE, S16 a cicccjncntasta ni caiciveg aie e.ce 73
DiRT Wy Quill. co.cc nens oe guess ABN Mee OD ii cos secaseeds corde giecde eros Shere 48, 44
Slaman v. Buckley.................0005 29 Barb. 280 seca, xeweawacenne eos 418
Slater va Meads ccs aceaais sigsnes wenn DS HOW) OT ossisguaerwiwsns saneaeeulans 588
Sluyter v. Williams.............. 2.0... 1 Sweeny, QS salons eieanstesanise sia 3 es 855
Smedis v. ae & Rockaway Beach {ss NY 13 LALA ALG Gt erate 184
Smith Malice of Will of.......... Bach ou 95 N. Y. 516......... 175, 177, 179, 399
Smith v. Aitna Life Ins. Co...........,. AO Ne We Qe eae a cata Cenena shane 181
Smith v. Belden.......... 0... eee eee COUN OV, BA8i a sancaiascagantacenne 225
Smith v. Cheetham...................4. 8 Caines R. 57.2... ce eee 541
Smith v. Coe ..... . eek eee cee eee OON. VY 606 sscccccadae weekandeds 174
Smith v. Cooper............ 00. e eee BON, 895. seca cee san aaa eed ee 490
Smith v. Crouse..... 2... cs cee ence 24 Barbe 438s cece steaks gaencesion 113
Smith v. Cushing ...............-.-.00. 18 Wiss 298. csc wun etrismeaie vee 528
Smnithevs Davis's cas eee x dig alteeavnenuae 29) Hun, BOG pis Grea ek vs leeslese o's a 307
Smith vi Hvanse esc cccceceeeusereeeee vs LADD: Ny Cr 898 42000 cewdesag sins 70
Smith v. Floyd........c.cccceee eee cae 18 Barb. 523..........cceee scenes "169
Smith v. Hermance............-.....-. 18 How: 261 wis ccesccecsssaaays 82, 119
Smith Vi Hilly cas sccseer si aceteiee oo 22 Barb. 656........... 878, 447, 448, 449
Smith v. Holland .................--64- 6£ Barbi: B88 siune sone wares 168
Smith V., Lewis: ss.i aie stew ede sae saans 3 Johns. 157, 168...............60. 38
Smith v. Lymes......... cece ee eee ees DN AN; A000 sulatnnisiahdanstelasgiea ies 73
Smith v. Mayor, etc. of New York...... BU Ne Yi D1 Gos cae ok oes unesoniian 169
Smith v. Nelson............. 22 cece e eee 62 N,V R286 cawisitrnca snc anenicnes see 13
Smith v. Newland........... 0.0. e eee ee 9D FDU, SOB bisa views ga haces. 6 wevinle 174
Smith v. N. Y. Cent. & H. R. R. R. Co.30 Hun, 144............... 148, 145, 178
Smith v. Osborn . 2... cscs cee cee neeecas 45 How, 80h. cesvae desis aeaaieeen 533
Smith v. Ostrander.............-.0.e0 0 4. Law Bully 88; vss naanekwas ike dee 457
Smith v. Pettee..............06 cee eee 10: Na Vo Wise iiversscacead are akonde 290
Smith ve Platts. stews ccotasserce csevees 96 .N Y. 6808:i2: ces eascca sess 217, 227
Smith v. Rathbun....................0.. TD IN: Vc 122 tacoma nokia. Aes 19
Smith v. Rathbun...................... BON. Xs O60. aieewacsaues ee et ees 228, 302
Smith ‘v. Smith «0.0.00 ees peeece bere nas 11 Jones & Sp. 140................ 346
Smith v. Spaulding..................... 30 How. 889..............0.00;42. 810
Siith ¥. Stari. c.occcsasens seats cores NOUNS Ye 1052 cage cate matentan ever s 276
Smith v. Thompson.................-4. DL COWN2 21» cnchcnmsryen wakes is 540
Smith v. Zalinski.............0.....008 OA ING. Wes 19) cosas distance atgdatesns 227
Snebley v. Conner...............00eeeee WB Na Nie 218s cwintetolens 238, 246, 281, 296
Snyder v. Goodrich ............-..0006. 2B. D. Smith, 84. 060 scnssidiecaces 470
Snyder v. Hughes. ..............022000- 2% Hun, 8i8acciis See ash taiwan 471, 472
Snyder v. Shearman.......... eehecbieteatit oa SOUN Vi G56! bcs esiveehaem ene as 179, 399
Somerset, etc. Savings Bank v. Muyck...83 How, 323............ 0.22 cee eee 102
Sourwine v. Trusscott...... ..... .....25 Tun, 67.0.0... cee eee eee 306
Scuthard v. Philips .................05. PT PLU, POs sete. anna wrtensinsaes 74, 365, 422
Southwick v. First Nat. Bk. of Memphis.84 N. Y. 420..................000- 167

Southwick v. Southwick................ AQ IN: WY: O10 sedate wow wade a vee 225
lxxili TasLe oF Cases.

Page
Spatz v. Lyons......... eee eee e enone JD05 BATA 16s 26 sista avetiverd alevererwies 502, 506
Sperrs v. Mayor, etc. of New York...... ORIN Vg BAR secs saceiggtonase arerataciereseinrents 226
Spence:v: Beck vo eccwseeecadisee weenie FUNG, 257 Oh seccceie lalscens satster carn oretecwisegnre 435
Spence'vs LindOsecs: ca caava va veguoeens 19 Alb: Te. Te LGB ease cen iesreiescnacesis 244
Spencer v. Saratoga & Wash. R. R. Co..12 Barb. 382........ cs. sees ee eee 451
Sperling v. Conner.............- 20s e ee 9 Baw Bully 25g :esiegemienenwarenleee 514
Sperry Vi Miller. cave cies sccaweasdees ox ION: Ys 40 Viscacanancsigiecwnenace 183
Sperry v. Reynolds .......... ..-..e eee 0 LANs: 40 ned ces sa salnetanioennes 440
Spicer v. Fulgum........ 22.0... eee ee 67 Ni Ca T8iceseaewieeanenas eeaues 539
Spooner v. Keeler............. 2002 ee eee OLN. OY: O0tsescassstad saeseaieete 854
Spoor v. Annan...... 0... cece ee eee eee 16 N.Y. 620.3 .cesccestiawiss 256, 263
Sprague v. Richards...... 0 .......eeeee OO: HIN, 246 ..,2 6 cnc. tmrnaetesied 469, 473
Sprague v. Dunton.......... subdassedeavackois D4 PRD, 490) cs seo sees ve sstccs ccs tealecs 805, 306
Springsteene v. Gillett..............0 00 SU HUD. 260i ecacsesinis mieeghaeiiecbacnt 210
Sprong v. Boston & Albany R. 2. Co....58 N.Y. 56...... 0... eee eee eee ee 282
Sproul v. Resolute Fire Ins, Cv......... 1 PANS Ml in ccwaeonacsenos 524, 525, 531
Squier Vv. Gould... .ccccccnawaeaswawsene DA WGI) 159 os cestenccrereniance evecare 10
Staats v. Hudson R. R. Co....... 2... 89 Barb, 298... 6 ccvet cece wanes 879, 453
Stafford Vi LCAMY ec cieevere cv variates 43. FLOM AO se ceecenaceicawee aie 342
Stafford v. Williams...............00085 A DGHIG, WSR sice.sccciacencoeitiacon scoceretereis 450
Sthiger vi SHUMZ .sccssvesevacwacea sea « DP ACCF ES, O14 .c:artraseascrerscaraiavarerarn wai 225
Standard Oil Co. v. Amazon Ins. Co.... e N.Y. 506...125, 178, a SOL 508
Stanton v. Crispell...........e eee e ees Ds EP UTR 250 Bi aie casts rere lerwcess ie agate wees econy 503
Dian ON Vi. KUNG a cs csassecenaeesineccne 16 Ne ¥V2585s cwesugsieeceeis wines 215, 483
Starbird v. Barrous............... ..06- OOH Me Clb ee nscdiae cesuasetaese 283
Starbird Vv. BarPOiincec. ccaauvasncecans AGUNG WE 200) sascha yeuiecen nite tele 177, 286
SEAPlES Vi GOK Cie qpeeinieia’ siateve senate aa ves BEE Wa O SO i atersteiaceanalstateeanerepsiovateters 115
Mtaring we OUGS:, sisavesssiedt sonesee eearetetre AS HOW, 428 yore cccreminnniaeacsiaunn ea 82
Starr v. Trustees of Rochiester.......... G Wend, 094 cuss sauneginavn sees 11, 15, 414
State Vi ConWay jacccce cease emeunasgaiege 20 Minn), 29). wc nwannsengate anes 542
State v. Hartmann..................0.. AG Wis: 2484 ccuasncexenewieedeess 542
ME CGIMLOF NOG ee cnc, te Glatt Ol eaacimeaencrarss 11
State of Michigan v. Phenix Bank...... D0 Nis Ve Qewiiwos vay hee ooneete es 12
Stauth vs Mah eric isis acess sane cman 2 Dal ye 14 Oa 6 wax eoecewarniss tence dee 355
Stecle-vi Whilesn scccageseeaauniaiaweds 2 Paige: 478 sv exsusex net wees ccekan 82
Steers v. Liverpool, &c. Steamship Co...57 N. Y. 1... cece cee ee eee 274
Stebbins v. Cowles...........0.ce ce eee £D0 Hany 528 evicaerseanacivenacn ccoaase 366
Stedcker v. Bernard ................2.. 93 NV S89: sciccaeecscieis sneer 18
Stephens, Hv parte........... 0. eee e eee 6 COW: 69 5 6 e des idee ve cee one 74, 422
Stephens v. Wider ...... ....ceeeceeues BON. Ys SOL peste cieniainnare boca 452
Stephenson v. Hall............. eee eee 14 Bars 222 xsis-sieeca iw saccuass.acawisieidie ve 448
Steuben Co. Bank v. Alberger.......... MOINS Yee Bais aca sien wateebanees 219
Steuben Co. Bank v. Alberger.......... MONG, Mic. B0 Oi cssciaeeiaun Shy onnnaecoresieah claves 307
Stevens v. Benton.............0.. e000 DANSE TOG sors deaiasacsranwneneareareaeeas 185
Stevens v. Benton......... 00. cece eens 89 HOW: 1B cs. cacascsedws meccas 378, 443
Stevens v. Brennan..............0eeee0 TON Vo ROM saan puies Sastesieieen -. 179
Stevens v. Glover ..........eceee nace 83.N. Y. 611.............. 201, 225, 321
Stevens v. Hyde........... Kea ecieloraats 82 Barb. 171.0... cee cece eee 284
Stevenson v. McNitt .........0.0cseee vSt HOW, 885.00. ccc ceee eee e eee 60, 821
Taste or Casss. lxxiii

Stewart v. Morss..........cecceece ewes TON. Y. 629........ epaverwters wi 22ND,
Stillwell v. Carpenter. ..............008 BON: Vols. cowsedwn wesee se’ 0%
Stilwell v. Priest. . 0.2.00... ... eee eee SBN. Y. 649. oc west ccgieene ewan 227,
Stimson v. Huggins.................005 O HOW. BG ie 6. eas ots. 6 bbe dr ecein wveysiocesaes
St. Clair v. Day....... 2... ce ce ee eee ee BOLING Ve SOl veka ddeeeeeea noes
St. John v. Croel...... 0. cece eee ee ee eee TOMHOW:: 208 ais weave seer nace eee
St. John v. Skinner ...........-.. 00. eee 3 Jones & Sp. 565............- 335,
St. John v. West...........6.- eee ee eee A HOW: B29 cosisecwietnuciearee yes 308,
Stoddard v. Whitney.............0.0005 AG IN: Yip G2Tinwasawicressiesjew ee a's 145,
Stoney: Mlowers caer aieacemarwmcaw vee AT IN Vg 066 seve cise sc eisceivexeveets 185,
Stone v. Mayor, etc. of New York....... 25 Wend « 15 Tives oe i cede sess dine mares
Stone v. Western Trans. Co...........5. 88: Ne Ya 240 es se csvss oes caw saeen
Story v. New York & Harlem R. R. Co. .60 N. Y. 85.......... 0. eee eee 295,
tory v. Williamsburgh Masonic Mu-
: stl Benefit Asweaien se uarecuprscennse ou N.Y. Wb. .ee esses esse ee eeees
Storp v. Harbutt............. cee ee eee 4E. D. Smith, 464................
Storrs sv, WN. cvyesas nase scadsiscsnvsieicses 14 Jones & Sp. 498................
Stowell v. Hazlett........... 2... eee eeee OTN: Ys 6805 vssie seine dais pcan
Stratton v. Cornfield ..............000 0 DK EVES, OD 5 oy dsis vials'ae we singed wes
Striker’vi Motte sos ceeds -s tuitegaas wens 6 Wend. 465...........0.....04. 11,
Stricker v. Wakeman................... 18 Abb. 85....... Ra ae Aided ys 105,
a oo ee ear an k sa Hien, A0Y suinnancensencyas'ss 344,
Strong v. Hardenburgh... . ......... .25 How. 488..............0000. 129,
Strons Vv; JONES: va sci secvesvecmwerses 25 Hun), 819 vessconvenccass veces eos
Struve'v. Droge..s.scssicvses seams sswes 62 How. 258 .......-. ec eee. 70, 423,
Struver v. Ocean Ins. Co.... .......... D ADD: 28 pasdae des sd eid isie de code eed one
Sturgiss v. Spofford...............0. 005 58 N. Y. 103...... 218, 231, 240, 474,
Stryker v. Bergen.........e:eeeseeeeeee 15 Wend. 490.0... scscecnenea enue
Sudlow v. Knox... -.....e.eeeeeeee eee T Abb. N.S. 411.............. 218,
Suggs v. Anderson..............eeeeaee UR Gs Molnlaie sodae dees weatence s ates
Sun Association v. Tribune Association. .12 Jones & Sp. 186......... ......
Sullivan v. O’Connors........... 0.0000 O22 Tins. TST. « scsstscssniw vias see's 8 118,
Supervisors of Richmond v. Van Clief...16 Abb. Pr. N. 8. 97..............
Supervisors of Tompkins Co. v. Bristol. .58 How. 8...............0 0.0 469,
Sutherland v. Rose.........0. cee eee eee AT Barb: 144.3 045 ceva ses saa vaeseee
Sutton v. Davis.i..0.c-swcee sce esses ces 64 Ni Ys 688. 5 ecccswencaiw ese inde
SUtton VY. Ray ca caeceee bee es bask Het WON: Ve A@tistes avsiceeyscced 294,
Suydam v. Munson ............-0e ee eee 25. D. Smith, 198................
Swan, Matter of..... 2... 0. c cece eee eee 83 Hun, 200....... ccc eee ee ee ee 366,
Swan, Matter of........... cece eee ewes OT Ne Mi 492 a craisicrataie hiner iene wey
Swartzel v. Rogers...........0.eeeeeeee 8 Kansas, 874....... ccc. cece ceceee
Sweetman v. Prince..............0000ee 62) Bat: 256 visi iacecerereinsasn <coten ausiace os

Syracuse Savings Bank v. Syracuse,
We os COs eeeen alae hss N. Y. 110.....125, 236, 801, 802,

Zs

Taaks v. Schmidt.....ccsscceceeceeses- 19 How, BABE so sreise ie sinie wise wmiere Oars
Tabor v. Gardner..scscsesssccccseceeecdd Ny Y. 232. .cseccevcceccvseerees

286

414
107

505

140
19
456
60
478
448
238
529
184
120
244
478
838
229
401
460
367
240

505
356

225
226
Ixxiv TABLE or Cases.

Page
Tabor v. Van Tassell..............0000- SON. Y. 642) 6s assieerececu sees one 177
Tit Wi WHEL oe owcianeascesw envio awed 47 HOW. Ae oascnant dlesecexeres 834, 352
Talcott v. Rosenberg............00.000+ BDaly, 208% csavess nescence ore se 172
Tallman v. Hinman.................00 10 HOW: 89seeccwmsasswieavee ice 216, 308
PE eee ee BIS | DUN BiB acne denen teeperaesas 217
Tanner v. Marsh. ...........00..0eeeeee 53 Barb. 488...........0. cece scene 366
Tanner v. Marsh.............ecee ee eaee 36 How. 140.... ..........2. 2 eee 440
Tasker v. Wallace.............2.0-0000 6 Daly, 364. ..... 0... c cree eee eee 168
Tate v. McCormick...............0.0065 23. Aan, 218i oc eecatcered reine 46, 338, 505
Tanton v. Groh.............0..6005 6a D ADD, Nw 5. 4B8 ccna tices wdicaen 485
Taylor v. Betsford ..................04- 13 JODNS.nAS 7. eo seccawigceayeeiwcass 537
Taylor v. Everett .............0.002008 2 OW: 28 si sda cie eae sauiniew es 536
Taylor v. Guest......... 00. sce cece eee O08 Ne Yi 262 hey ewan soe soyseuceees 279
Taylot vi Grant... cc cuines congas senee 4 Jones & Sp. 261...........-..085 359
Tay] OF Ve HA OW + oioc ede cegengeisetes TE HOW 280 iessieinenasaigacesesianeisscdios 5382
Taylor v. Ketchum...............000065 O ROD D0 cceceavee de see was s estes 184
Taylor: ¥; Roote:case isin sccgesinens hoops weyers AS NY O87 a caniatsipid's'tares wale nieve 225
Taylor vi Drone0s0s se sccesearwiewsstcce tein’ MOINS Vo 599" es vacsinadie's seas see si 219
Taylor v:, WADE ie. esstes eee eee vse ne 83 NOY: S21 isasc nce sucess necune 260
Tenney’ Vi Berger coisa swcssanisicewlew 4. ass 98... VF cscsieswnweinesedeeses 286
Terry vi Dudley 3 cs.ce\staes ssiav edenanen 11 Reporter, 306...-.............-. 452
Terry We Walt. co ses ses saeescense aaales BG Ny Yi Qliss avian i osna vcednanasad 299
Thacher v. Hannahs..............-..2+ 4 Rob. 407........ ..0.- fs piece ease 132
Thaule v Kreckler............ .. e220. 17 Hun, 888)0% eosesic cease viasd 302, 856
Thayer v. Marsh............. .ee05- san GO Ne Vo @lQscsst esses ores sees 186, 188
Thayer Man’f Co, v. Steinau........ ... 53 How. $15.63 escnseietcesene a 501, 524
Thierry v. Crawford. ............000005- Bo. FUN, OG: s sie wa eevcaticraradhe gi aaneiess 62
Thomas v. Chapman ..............0000. 45 Barb. 98..4.6s0¢ cece. ceases 535, 543
Thomas v. Dickinson..............2...+ TDN. Ye BOS csicicenmeesdinn auaeaces 041
Thomas v. Thomas...................05 TS UD, ABT a ss acsctus aacere erties v8 G4, 422
Thompson, Matter of................... VD Baire:, 208 i 0.5csiavoaeuntaanaunis Sanne 40
Thompson v. Blanchard................. SING Ni JO80suicoma is ony Bap ye ees 94
Thompson v. Blanchard ............... a Ne ¥oOGL a cnlese eee nee ss an 263, 266
Thompson v. Ellsworth. ................ 1 Barb. Ch. 624.................0. 65
Thompson v. Pine ...........-..0eee eee 6B Hun, O47 .0 ee sie ceawkeeees 879, 428, 444
Thompson v. Taylor........ 0 6. se... 18 Hun, 201...............00. 163, 340
Thompson v. Wood............ ..-..5- A Hilt. 935 ccssswnimnon anarnencens 348
; ritish y a
Se ee eee 175, 279, 291
Thomson v. Tracy .............0..0005- GOIN We, Si sigs ie cide miata tienes 12
Thorn Ve Turek ssacasceeesak dene nceses DANS We G0 cease aches Satan x wyos alee 286
Thorn’ Vi TUrek . sesseuis aaa screceeasredicricn 18 Week. Dig. 550................. 505
Thrasher v. Anderson ................0% 45 Ga. 588... cece ee eee 533
Thurber v. Harlem Bridge, etc. R. R. Co.60 N. Y. 826....... 46, 212, 281, 335, 337
Thurber v. Townsend.................. RON. VY OL%s ese sae tak s Swe acoso atT
Tibbite vi. Perey: os. sas seas scewesienees 24. Bars'89 viscces ey sees oacsue wane dee 447
Tibbles v. C’Connor..............00.0 0 OS Bar. O28 c0us acc ceca cee oes eee 113
Tiffany v. Gilbert............... ee, 4 Barb: B20. ecescaaaeas canons woos 447

Tift v. Tift... cece eter e eee e cece eee es @ DEMO 19 orca sd casieest da wan Heian 448
TasLe or Caszs. Ixxv

Page
Tilden v. Gardiner................ 2.0.25 Wend. 663....... 0. cece cece eee 534
Tilton v. Beecher. ..........0. cece ee eee 59 N. Y. 176.......... 217, 227, 292, 298
Tiers v. Carnaham ............6-. 00 eee DS ADD: 69 50sec cade sae cigete sea ae 80
Tinsdale v. Murray................ 004. 9 DAY, FAG wiia aias ei sce else acciears 404
Tinson v. Welch...........0 casaceeeeee Oil Ns Wer 24 big oases cia vores 838, 505
Tisdale v. Morgan................00000% © PLUM). OS Bias nyse’ s cass 6/4 als ages in ao eyaie 167
Todd Ve Stateyc. Misses ose v osc ee dees sane 26 Ind 212 weceuckcehusy + cues ae sas 584
Tod devs DOd so aca daciiniecdee gutalonseis 6% 38 HUD, 298 nec wedaeewesee dase cae sae 336
ee } OF NY SNe gael ee 278, 292, 298
Tomlinson v. Mayor..........0..-eeeees 44N. Y. 601... .......... 148, 145, 289
Tompkins v. Hyatt..............-...066 LOIN Vir 0B aise cisusicevannigwolsarey e6 eb, 210
Tompkins v. Lee........... 0.0 e eee eee DOIN. Yv 662) «.ccenscnernan dew eanad ss 286
Tooker v. ArDOuX....... 00s. eee eee nee 16 IN: Ne 89 Vorveiaan wie seg soe es 167
POY Vi: BaCOD isa seas coa vain nt ve Suny MON E84 acs pacigieseiigeieiane sreeek 179
Toplitz v. Raymond..............-...5. 10 ADD: 60. sais: siscuaw veesees aee'ss 172
Town of Lyons v. Chamberlain......... 25 Aun, 49. coiwge aed eediesue eae 64
Townsend v. Masterson, etc. Stone
Dressing Coss wvssceedsves 6 1D N.Y. B87. .-- 00 se esses cee eeeee 18
Townsend v. Hendricks............ ... 40 How. 148............... 06. 219, 231
Townsend v. Keenan................06+ 2: Hilt, 54k set sie oy si eee eee oa eee 460
Townsend v. Nebenzahl................ 2 McCarthy, 342.... ........ 2605. 493
Townsend v. Peyster.............2+-008 4 Daly, 556............006 seeeeeee 334
Tracey v. Altmeyer.............0+-000- 46 N.Y. 598... .178, ee ey 535
Tracy v. First Nat. Bank of Selma...... SUNG, WiiB 28: basses aiantsearsovte as 34, 36
Tracy v. Steam Faucet Co.............. 1E. D. Smith, 346................ 308
Train v. Holland Purchase Ins, Co...... G2 ING Wis O98 ecw sees srvseee 126, 185
Trask;v, Annet oseiey dees each se vels ns L Dems. Vid sasisaiin Re aieiiitnle epin's «na 95
Traver v. Eighth Ave. R. R. Co......... B Ke ye8) FT cos ssw clad aviadesen 177
Traver v. Nichols...........0..-0eeeees i Wend 434.0 ve000 25 ccd 4 aga ees 2, 113
Travisi ¥; ScTibet:c.ccccecvowaseasiuced 4+ 12° Hun; 891.5 cesccscesswsunaceece 142
‘Treadwell v. Pomeroy.............2.0-+ 2N. Y. Supt. Ct. (T. & C.) 470..... 217
Tribune Association v. Smith........... 8 Jones & Sp. 251...............0. 126
Trimmer v. Trimmer................... TS HU, 182... 6.2.4.0 ide avcunaacuwen 1%5
EPP Ws COOK: sa-si:secsesinotan Sales ve eee BY 26 Wend. 148. can nue cies berets 222
Tripp Vs De. BOW cseserccvesesddose os SOW. WIE sees escas aaeaeas Remarc’ 64
Tripp: Ve Pulver). ccc vsaccscavs ae oeeey 2 BUD Olt. con abso aeeoner es 167
o. v. Boston,
Tye eee B. 0. + ce 7 Mone, 46. ssdcncneaverwaes 78, 106
Trusscott v. King... .......-.0--- ee eee GaN Yo VAT seve dasa dgeeieh eee 275
Trust v. Delaplaine .................6-. 8 E. D. Smith, 219................ 435
Trust Deposit Co. v. Pratt.. ........--- 20 Hn 28s 65 a5 ys eawdewamedoaiendes 304
Trustees of East Hampton v. Kirk...... 68° Ne Vs:400cc:2 ese ccateasen 126, 185
Trustees of Penn Yan v. Forbes......... 8 HOW 285 ioe s scans abiaece, < wmrissee 309
Tryon v. Jennings ..........0.eee ee eee 22 How. 421........ 0... eee ee eee 460
Tucker v. ATNOuX......-.. 20 ec eee eee eee GIN YOO oo 3 vn tea eo iste area avatars 126
Tucker vi Leland sics:c eee ese sie eee nsignene 10 Ne Ve 186iacacceyeaaiiwss ine 223
Tweed v. Davis.......-....205 cee eenee 1N. Y. Supt. Ct. (T. & C.) 252.... 145
Twombly v. Cassiday ...............05. BQN We lbSv cress ssecee sees eae 283

Tyler v. Hoornbeck..........06.-20.0+- 48 Barb. 198..........006- 581, 582, 535
lxxvi TaBLe or Caszs.

Page
Tyng v. Commercial Warehouse Co..... 58 N.Y. 808......cccceeee aiaie lstacerabe 167
Tyng v. Halsted «sissies wes naeeceec BSS Ne Mi OO8 escenario santa tinioodiasss 222
i eet Go HO ie ashame 280
TYTON V.. Bakery. siscieiaceeisideiacesiie d eisiece U TsOM8. GUD tise aaind eins 4409 ces wee 334
Tyron v. Jennings .............0.-0000- 22 How. 421..........006 dda ane’ 410, 411

U.
Uline v. N. Y. Cent. & H. R. R. R. Co..79 N. VY. 175... 0... cee ee ee eee 218, 310
Underhill v. Dennis.................... 9 Paige, 202. ......0. ce eceveceneeee 40
Underhill v. Nichols ................06. 8 Week. Dig. 276.........0.008 128, 333
Underhill v. N. Y. & H. R. R. R. Co.. .21 Barb. 489........... 0. eee ee eee 177
Underwood v. Green.............eeeees GUNG Vis 24 vee ess teen eveten 220, 226
Union Bank v. Mott................205. 19 HOW 26% ois aes os esos valne's ed 309
Union Dime Sav. Institution v. Duryea. .67 N. Y. 84...... 00. eee e eee ee eee 109
Union India Rubber Co. v. Babcock..... AL) UCR 620 x5 serrsisw ava aaeecancatees 293
Union Nat. Bank v. Kupper............ 638. Ny Yu Gli ecssssecscacedss 6, 347, 348
Union Nat. Bank of Troy v. Bassett.....8 Abb. N. 8. 859................4- 309
Union Trust Co. v. Whiton............. 1? Hun: 598 v sauesrevanvowecon anions aia. 482
United States v. Baker.................- 8 Bey 68es sve. c9 sca a5cse veces cves 539
Utica City Water Works v. City of Utica.31 Hun, 426..........-..eee eee eeee 470
V.
Wailevi Remsen.siscs oa vece. waeeseecnues T Paige, 206. oceans oernawsws vee 19
Vail v. Rice.......... Haars dave Rane aes 6 DIN: ¥, doosenceiesewtan. Soemeeaae 187
Vaise'vi Deélaval wi ccinweses wonswasicens 1d Terni. Ri. VWescicesis vases o eeacsee 543
. National Loan Fund Life

Valen Yee Louie eae 19 Hig Bt vn fv cae axnatesanesde 57, 80
Valiente v. Bryan. .......... ccc eee ee eee 66 How. 809. o6 os csieceeeieccscews 548
Vann v. Rouse......... RO eda aa meee 94.N: Ys 401s cecewaccidtaaat ates 275
Van Bushkirk v. Dougherty............ AA VOW 5, 44 ict ei a see chee aietdn neces 542
Van Clief v. Mersereau ..............85- BAD: NUS. 193) 6s6cseicccseasaaae 67
Vanderbilt v. Schreyer ..............66. BE IN Ye GAG os revecoa cavers Gincesecopnbis ater ans 225
Vandemark v. Vandemark.............. 26 Barb. 416............ 0.2.0.0. 83
Vandevort v. Gould... .... ccc cece ee eee 86. N.Y... 686... 5 cece cece saeeass 176, 177
Vandervoort v. Smith............60..8 "2 Caines, 154........ 0... cease 524, 525
Van Dewater v. Kelscy............2..-- MONG Vi 080.6.6c6 ch carcwa oe cee) 228
Van Doren v. Horton ...........0..00ee POH os 8 irae ane swanndaminesed 303
Van Gelder v. Van Gelder.......... 02. MD AN. NAG: as ace cht sw omen aeraaton 280
Van Gelder v. Van Gelder....... ...... BLING Yee ERB oes aceasta tess eres 208, 204
Van Gelder v. Van Gelder.............. BAN. Y. 658.0... ccc ccc ees senes 485
Van Heusen v. Kirkpatrick............. DO HOW 428 voces eee tee ewe 422, 433
Van Hoesen, He parte. ....cceecceeeceee 4 Cow. 505...... ns ata aSenstascsetete peatehieate 98
Van Horne v. France..........0ceeeenee 82 Attn, G04 o.:se:sw aes sctesiaeecaewas 42
Van Sickle v. Van Sickle...........665 8 HOW, 265 sce tds edusenssassecwsc 348
Van Slyke v. Hyatt.......sseeeeeeeees 46 N.Y. 259 cess cesauesesices 220, 224

Van Slyke v. Snell .......e.eeee vee eees GO Lans;299) ep sxdewstatwuskaies 851
Taste or COaszs. lxxvii

Page
Van Tassel v. Wood..........c0. ee eeaee WON. Yi OlAvecciaw aie dbrceacs 278, 279
Van Tuyl v. Westchester Fire Ins. Co....55 N. Y. 607.............0000 278, 280
Van Wyck v. Baker ................00 11, Hung B00 icc crapieniyapcaccetas 481
Van Wyck v. Reid............ cece eee es 10 HOWE: 266 cans is oeiains stains 496
Van Wyck v. Walters...............0.. 81ND YN: Bbeees ssae si yes een eunny 279
Veeder vi Mudgett.. ..ccccsccs wes sareves 95° N: Mi 290 viscvsearvswsemea ence 483
Vermilye v. Selden ..............- 0c ee 9 How: 41 .escsasecatascexeaaes ses 298
Vernon v. Palmers........0 02. cece eae Gi HOW. TBs since edna, xk ensu sae 48, 49
Verplank v. Member..... ........2.04- MA Nee: Mea Oe Ole ay “al absuacks sere wesiaiausety wince Qn
Wietory Vi. BIGOU), coscscecasonioce tinsel in ieunie OB IN Mi CBO Siu. c cies fale ie arse soars 212, 304
Viele v. Troy & Boston R. R. Co........ ROS Nis Mie 1S Masa csaiie meter ansiae mines 288
Volkening v. DeGraaf.................. SLONG Vis ROB csc suncgranrnnrnenaren dancans 168
Von Keller v. Schulting ..............0. AT THON. TBO scrtcnrreagueinia act onuas s 480, 484
Vose-ws Cockcroftigicsecsineciseaucea ew BANG. Mee Al 6 itis acvais bass eau vero sietnats 199
W.
Wade v. DeLeyer............. cece ee eee 63 N. Y. 318...... T1, 220, 224, 225, 264
WF ONOR Vs SONGS cscs eres tacnioieieciaiaaaes MDa ye COR Or eset are agate etes 835
Wagner v. Long Island R. It. Co........ HOUNG Moe O14 a siete 9) wierdninennesniveennane 234
Waldov. Waldo siccescccsascagacieagnees B82 Hany OMe ws tunctoericcswaatvales 129, 137
Walker v. Johnson...............+. .-- 8 HOw: 240.2. sceawienn wee aeeecs 432
Walker v. Spencer ...........0000000s #86 N.Y, 162... sc0c006 25% 212, 214, 304
Wallace v. American Linen Thread Co..2 N. Y. Supt. Ct. (T. & C.) 874..... 217
Wallace v. Castle. ............ 0. cece eee 68 N. Y. 870...... 21, 216, 217, 219, 228
Wallace'v., Drew... seine ee vineiitesereivecs DE Nir Wi OMB aise Goslestwcniaie, seduce ees 279
Walls, Fa parte... 2ceclsccteccdsecnoscanal GE TWA AG oi, ccecsiectacectinnacaraein se sratasce 530
Walsh v. Cornett....... 2.0... cece ee eee WT ELM Dies siussarsvvaaan eo aentnedndane 450
Walsh v. Kelly .......... 0s. cee ee eee eee AON NOOB 2 ace sacintae nae amialelonas 184
Walsh Vv. Scholy.cucso piece cc eeceaeeane 67 How. 186.............. 405, 411, 412
EE eee t BRD BI scene a hetios oa e 350
Walsh v. Van Allen................eeee 86 Hun, 629 wciccvsaecenensvecs caus 487
. Ward v. Central Park, etc. R. R. Co....2 Sweeny, 71..........0. 0 cece ee 835
Ward ¥i CobDs:oioice-c:ctenscmnsstntsienanvens LO Vexas, 148. ccwwnwan aces vase was 535
Wiatdev Craigs os ccaecwisiueteisele lcgtaisete 87 N, Ye 850s sscxswnavaws 276, 279, 285
Ward v; JameSss.si% ca cvessevwnses eves 8 Hon. 526: csc secekis Seca actus 105
Ward v. Kilpatrick.................0086 85 N. VAR ecccosece endo s 176, 180
Ward v. Reynolds...............-02006 25 Hun, 885..........0 ccc ce ce cees 88
Ward v. Warren..........- 202. e eee eee 15 Hun, 600.............. 120, 121, 500
Ward v. Woodburn................005. 27 Barb, 846......... cc cece cece ee 508
Warren v. Warren.......-...... eee eee QE THOW: Lae oo os cccavearwainedereredereesi 133
WY BELG VE ANOS ia ioste Siu dee Sectnase TQADB: VIB ccs cineca, aeiigazesaidelne 78
Warring v. Loomis ................4... A Barby ASS croc cutourwaniinyenee eat 450
Waring v. McKinley.. ...........0..05. 62 Bath; C12 c.ssceeesnanveven 441, 442
Waring v. O'Neilin.2 82 c2ccs eecexavews LS. Buny 105 cee ce waaweaacedsieeen 349
Waring v. Senior. 4.2.2... ... cece eee eee 48 How. 226.............084 60, 67, 321
Waring v. Somborn........ ..-...-...- 12) AUD Bhs ates eutaaiaw saoe: 88, 84
Waring v. United States Tel. Co........ A DANY 288 ccs citine ta eieceege caters svc AIF

Warner v. Blakeman ...............44 4 Keyes, 487.......... socerccccesee 12
lxxvili TasLe or Cases

Page
Warner v. Henderson .........-.....-4- 25 Hun, 308..........00005 361, 563, 364
Warner v. Gillette ...............0004- 15 Week. Dig. 158.............0065 834
Warner v. Western Trans. Co.......... BD Rob 490 waicksutie wings dhens oes ek 5 5 525
Warnick v. Crane.............0ccceenee 4 Denio, 460 ....... 0... eee eee eee 10
Wassam v. Feeney....... ....eesee eee 121 Mass: 080s ssecesces ices sakes 539
Water Comm. of Amsterdam v. Chalmers.86 Hun, 584...........0.00eeeeeee 20
Watertown Bank & Loan Co. v. Mix....51 N. Y. 558.......... 219, 234, 536, 537
Waterman v. Whitney...............4.. T ELOW, 401 cscs ce ee asses Reg Soc eh ace 264
Watrons v. Kearney............. 000000 TONG Ni 49G siaics pclae pdaaniereeiareaie. 24 229
Watrons v. Kearney..............--0008 LEU, 4584 wis on widen catenin Genactnnverataios 4
Wiattivi Walt. ceca se cianssaweu see eeced TS ADD: BOT is.0:5 ssn ecies steeerroe neve 93, 78
Watts v. Cleavland .............ee0ee 0 38 E. D. Smith, 553 ............... 449
Waverly Water Works Co., Matter of....16 Hun, 57............ 00.0 ee ee eee 312
Waverley Water Works Co., Matter of...85 N. Y. 478...........-..0.06- 20, 230
Waryle wi: Tuttle vec a. paws gies He eevadardns 11 Week. Dig. 186.............-. . 847
Weavle vis Wa Wiles sinecasii ae geass oo e's 9) ran 120) ccc eecaus 845, 505, 506
Wavel v., Wiles. ..0..00 cack cwsne sews 4 INE Vir GOO negli’ s hase ecless 366, 441
Weaver v. Barden.............. .e..0-. AQUING Ve RSG oo sa die sa ae ees apie e'sie s 211
Webb v. Norton .......... 22. cece eee 10 Hows. 18%. 3s vaea se deseien ie ney hs 486
Webster v. Cole...........0..02e0 ee eee 17 Bun, 00% edeace eneedasaesuds 511, 512
Webster v. Stevens...............0200e- D Duet;.682-. aay acs encdnaennenc 99, 100
Weed vi Lee ssccicasccisucuccseiveeavs 50 Barb. 3854.............. 379, 449, 452
Wehle v. Haviland...............--2-.5 42 How. 399.......... 00.00 eee 506, 508
Weichsel v. Spear............ 02. eeeeeee 15 Jones & Sp. 228.............0.. 20
Weisbrod v. Marquardt................. 8: Abb. N.C. 243. cccscesesweecdvers 9t
Weyman v. Childs.................0.45 AlN: Ys lb9scassneeomewasdress iis 280
Welch, Matter of............ 0.0002 00005 TAN: Ys. 299. canow.x doen veenea cee 231
Welch: ¥. Platticciaiccasvigontiiccnsisiies are tee 52 Hin, 1942.0 22s. wdistecuncaaseedes 804
Wellington v. Classon..............0055 TSH HOW. 10 a Setscsicsuauewtegsaoonen 225
Wellington v. Morey... ...........555. 90 IN ¥ 55 COG xisiasecs dens Lueveieddn aanwidsioises 275
Wells 'V. CODE. 2... cee s cece cenete snes 55 Barb. 585.........-.. 000.005 176, 451
Wells v. Danforth....... ....-..22.000 TOW. 197. cise ie sencndaisie aesieea.s 59
Welsh v. Darragh..............0- 0 eee ee OS NG. Mer DOO ie EA cae eeee s ee paies 219, 224
Te MEN 8s ea ais aerate as 186
Weseman v. Wingrove........-.:..-.00 85 N. Y. 858...........0. 00 131, 132
West v. Lynch.......... 0c eee ee ences 1 City Ct. Rep. 174................ 473
Westbrook v. Douglas...............06 21 Barb. 602................ cane 449
Westcott v. Fargo... .... ccc eee e eee ees © Las. 182. ccsicie ener aaisensteae avatars 148
Westerloo v. DeWitt........... cece eee 86 N. Y. 840.................. 180, 288
Western R. R. Co. v. Nolan............ BAS NG AY. lo aecay-ncdeacisess een 16
Weston, Matter of......... 2.2.0... 00- OU NE ¥ 502.2 hoassagiobashinaiie's 400
Weston v. Elevated R. R. Co........... 10 Jones & Sp. 156............. 525, 520
Weston v. Ketchum.............-...-8- 7 Jones & Sp. 552....... - ...359, 360
West Side Bank v. Pugsley............- AT N.Y. 368.06 veesene cane anesns 8
Weyer v. Beach.........eeeereeeee neces 09: ING Y 409 vec cassqdleintruk et eawedi'e 279
Wheeler v. Billings..............-00000 88. Nis 268 ve ois dacteteotadcan 276
Wheeler v. Falconer........--ees0eeeee: PROD 4D: iss nwedineremaecieicie keane 316
Wheeler v. Millar..........ceeeeeeeeee 61 How. 896 .............2. 99, 119, 120

Wheeler v. Ruckingham..........sss00+ 5 Rob. 702.........00. cWeaedan eas 495
TapLe or Oases. Ixxix

Page
Wheeler v. Tracy..........eeeeeeee eens 15 Jones & Sp. 868.............00. 20
Wheeler v. Wilcox..........0. ec cece eee PADD: TB ees big ee aaserrenawad Oe 102
Wheelock v. Hotchkiss............ 266. 18: How: AG8. 0+ s20 2% sc sada caexeees 491
Whitaker v. Defosse.................66. 7 Bosw. 678.00 sscccesececswess vs 810
Whitaker v. Imperial Skirt Man’f. Co....78 N. Y. 621.......... Lac a metas 228
White v. Anthony ............... 0 eee QB Nee Ys MOS iaiceacanetose wiessince (» 485, 486
White v. Calder. ...........005 cece eee BN Vs 188 cacsesdanamentins enhags 538
White v. Coulter...............0e eee eee 59 N. Y. 629....... Sheva was 201, 219, 220
White v. Klinken...................06. 16-ADW 109 citer Seg aw eels 57
White Vv), POMerOy. . oss eee eete esis esses Barbs: G40 es oo ca cs sees eat wee anes 382
White Vi Turner ns oes esses sa dee oie sieve’ 1 OD, 1628s ave caves eeu hu ate ome aars 342
Whitehead v. Kennedy ................ 69 N. Y. 462..... 294, 295, 302, 353, 855
Whiteman v. Leslie..................088 54 How, 494.............. 505, 527, 582
Whiteman v. Leslic.................-5. 1 Law Bull. 50..,......--.--.--0- 486
Whitley v. Leeds........... 2.0.0.0 e eee ST HOW O18 ecm ccmein epee Saeko 2
Whitney v. Townsend...............+.. GT NY 40 lee edaaae 220, 226
Whitney v. Townsend............+..56. TE AAU) 230 sievtis goacs fesse anauaisioaie tea oe 60
Whitney v. Waterman...............06. 4 How. 813......... 0.00 ce eee eee ee 3809
Whitson v. David...... 2... ce eee ee eee SIN. Y.. 640 seen cduiscaea ae 238, 281, 296
Whi'tlesey v. Delaney... ............065 WONG YO SMiasccncguckaiegvge ees 12
Whittlesey v. Hoguet................... GEN. UY. 858. csc vscniyeaaaiews 237, 238
Whittock v. Bueno.............0...206 A ATCT 2 gpasesseniesatees wioetare’s eros leeectasty 447
Wice v. Commercial Fire Ins. Co....... i Daly; 208k: wieuaicd wie sees eedacd 111
Wiggins v. Downer ........-....+.0205- 67 How, G82 oaeaesicen awieien 587, 538, 543
Wilber v. Sission.............. 0. eee eee O4N2 Ys 12he seesaw ra ceey ec ucssed es 296
Wilbor v. Danolds ...............0-0005 BOON: “Ye G07: 2 aescuin. osataaees 220, 224
Wilbur v.. Wiliseycss.csavesaicaaeaa wen 13) DOW. BOG i o0:0 3 ste acieeceieciaied a ecs 483
Wilcox v. Jackson......... cee e eee wees 18 Peters, 828...........2000 ceeee 11
Wiileox, v; SMI... cs5 ee eee ees ee dean 26 Barb. 316 ..............2 000000: 40
Wilder v. Peabody................2..05 21, Ati, BTC cciec ed ekewandeneeess 177
Wildy v. Washburn................64.. 16 Johns. 49................0002. 14
Wilkin Vs PeateGascsecacswess ade etes ed 4 HOW. 26 cciiaaweavegewie ves cea 824
Wilkin: V.. Raple@. sccsci. cc acinceawiewe oo DOIN. Yo 248 sites assis siege cae ees 226
Wilkins v.. Farle. ....... ss05 cs guaa vee AG IN) CY B08 sic teseehcuvieaete 2.8 we $25 199
Wilkins v. Wheeler ...........-....--05 De HO W98 scssisi dxcects and siaade wees 447
Willard vy. Bridg@iis eos sock sc veer es sas 4 Barb: 861 ...cimmstegwacker ss ves 447
Wiley v. Brigham: ¢ ¢.. caegcecneence wars SION: Ny dSiecy vesaet ee aetseiaiess 204
Willey v. Shaver............2ecee cs eeee 1N. Y. Sup. Ct. (T. & C.) 824..... 38
Wileyv, ‘Slater ::+ 255424 causation 22 Barb. 506...... .. Sie a exheauss 448, 449
Willett v. Stringer ................ 222. ODOC C86 25.25 ss scot eaten Soeares 110
Williams v. Baldwin.... .............- 18 Johns. 488..............0ccee eee 525
Williams v. Birck................200005 6 Bosw. O74 ......... cece eee eee 168
Williams v. City of Rochester........... 23baNS: LO9s ea accacace egestas 348
Williams v. Fitzhugh .................. BUN. Ve Add ccwage Gains nesele a4 476
Williams v. McGrude.................-. 18 Minny, 82 iiivacscuewseavesds sax 539
Williams v. Montgomery... ........... 60 N. Y. 648..... 217, 219, 226, 585, 543
Williams v. Sargent........ 2... ....00- AG Ni ¥: 48leascvacasmomsedeaee ses 179
br eae Ag a ee {98 5a es 2 ee 35, 235
lxxx Tale or Casxs.

Page
Wilmerdings v. Fowler.............+06+ 15 Abb. N. S. 86..... ......00. 298, 300
‘Willmont v. Meserole........ ......eeee 48 How. 480...... 0 ccc cece eee eee 102
Wilmore v. Flack.............eeeeee eee 96 IN, VBL oscs ic eiesaceeserncscere 12, 403, 404
Wilson v. Abrahams............0e0e0e WTA. BOT resins erie ceded dis adie ohare 540
Wilson vi Allens isnicisacoses oacunen vee wee 8 HOW. 369 «<0 os ceveviacewueaw! aes 62, 118
Wilson v. Fenner...........0-c.eeeee eee B SOWDS ABO swiss ania seen omen aes 450
Wilson v. Grant...........0.e0eeeeeceee BO Hows 800 ie deste cores, actrees tee warns 83
Wilson v. Lester.........0.. ccc ee ee eee G4 Barb. 481.......cccecesecos ences 508
Wilson v. Palmer........... 0. ee eee eee LA, HU, 825 6 ise se sesies sues svcceeee oe 191
Wilson v. Palmer ...........0..e000eee TO IN. We C00 ceyndiera Ser oieiwes wires 591
Wilson v. Roche..........-...00. 20 eee DOWN We C42 osu auws vine Saas eae si 275
Winchell v. Hicks..............e0000e0s 18 N. Y. 558..... sbeiene sects Velen 185
Winter v. Eckert.............. cee eeee 93 N:- ¥: 867 cesccewesxaneevnies 229, 231
Witbeck v. Waine .............0eer ewes 8 How, 488iee.eesiivsceee aks cas'se 172
Witkowski v. Paramoré................ 95. Ni Y. 467 .52s<00ss00 sees 217, 227
bien v. North Rivet Construc- 99 NiO B08 iaieateree crease 35 227
Wood v. Belden...........-. eee eee nee 54 Ne OY. G08. cece dateus eed oieees 505
Wood v. Brown.......... 22. cece eee 6.Daly: 428.6 osce.d os tees oe kee s 470
W000i: BIS 2. oa vaiolsniauscarcicacm ive aeadiones GS IN VRE ssc osctiecaha es slavectieserdysadees seed 112
Wood v. Shultis ............ 22205 eee APs, BOD eiscaisiand wvacatessiaicie sw eaceie och 450
Wood v. Squires...... 0... sees e eee GONG Ya Ld icc ancennde eietaaee 347, 348
Woodruff v. Imperial Fire Ins. Co...... QO INV O2ho cc ccik cea nwaweaesaes 225
Woodruff v. McGrath .................- OO ING Ve POOe es cases ons wes bast oes 176
Woodward v. Bugsbec ..............-4. QOD, 128.4 sca anchan net baer oes 243
Woodward v. Dean ...,.....---..e00 ee 113: Mass., 29%. ssccscoweesnaneaaan 539
Woodward v. Murray..............000. 18) JOWMS; 400 sows ancwnmne game 102
Wolf v. Goodhue Fire Ins. Co.......... 43 Barb. 400............ 0. ee eee eee 506
Woolf V. Jabs s.scase. Siete eevee os 45 How. 408..... cccceseeeceeeeee 529
Woolf v. Jacobs ............... cesses 2 Jones & Sp. 509................- 339
Wolcott v. Schenck..............-.00065 LOL O Ws 449 sicrcsuatstacraata acta dane 194
Mgt nee Wolelenbelne. ile \o4 We ei wtesheagees 295, 350
Wombough v. Cooper..........-...06.- EU, 498 css dactene veoh euuadeleess ox 186
Worrall v. Parmlee... ...........0.00- LN Ne ODA ay cai vedeeseae 176
Wright v. Brown..........--. eee cease GTN. Yoda eeecevigeeseeseus sees 284
Wright v. Delafield .................... IL BOW; 460-08 04 vex sieeeces goe5 83
Wright v. Equitable Life Assur. Society.9 Jones & Sp. 1................005 177
Wright v. Hunter,............ cee ences 46 N. Y. 409...45, 46, 288, 237, 281, 296
Wright v. Miller.............-.. eee ee ee SUN Yo Gis caaneee aoeus eevee ss 12
Wright v. Miller........-....0e. see eee 8 Barb. Ch. 388........... 0. eee eee 76
Wright v. Nostrand...........-.-...00- 94 Ny Ve Sly Alles sincden cestewce sade z
Wright v. Paige. ........6 eee ee ec eens 36: Bardso4 883 ccacsciais., eel ccdin kines 183
Wright v. Saunders ..........--.------5 65 Barb. 214........... 2... cee eee 342
Wright v. Terry... ......c cece rece en ees 24 Hun, 228...............0085 178, 360
Wright v. Whiting..........--......66- 40 Barb, 285............000e ees 166, 168

Y.

Yates v. Burch.........scecee ee ee eens SUN. XS 409 nsscsvevedouwe eeaeier 115

Yates v. Burch...... salonehydeateueuee 18 Hath, 629 icc ecvucsevucev savas 93, 871
TasLe or Cases Ixxxi

Page
Yates v. North. .......... 0.0 e eee e ewer BAN Na Qe ia a eaeeee 219
Young v. Brush............ 0... e eee eee TBA DD: DRL ica. sip.cceratehapaie dagersigers'e’s) es 298
Young v. Colbys.c.ccssdvsveasieesecens 2 Code Rep. 68........... Giegeesins 100
Young v. Davis..... ......05 ceeeeeees 80 N. Y. 184....,....... Ox Bea wenes 227
Young v. Whitcomb.... ...........04- 46 Barb: 616222225 ssecsinscaee sacs 61

Z.

Zinsser V:. Sellers « ovsscswesisea venison ews T Daly; 464s cco nnvicesicivisleiep vreieencie 5 456

P
CHAPTER I.
APPEALS IN GENERAL.

ARTICLE I.
REMEDIES FOR THE REVIEW OF JUDICIAL DETERMINATIONS.

SECTION I.
Nature or tHE Remepy sy APPEAL.

Aw appeal is a proceeding by which a party or person aggrieved
by the judgment, order, or award of a court, judge, or board exercis-
ing judicial functions, brings such determination before a higher
tribunal for review. Before the Code, there were two modes of
reviewing the proceedings of inferior courts in force in this State.
Judgments in common-law actions were reviewed by writ of error,
while decrees in chancery were reviewed by appeal from the vice
chancellor to the chancellor, and from the chancellor to the Court
for the Correction of Errors. (See Gormly v. McIntosh, 22 Barb.
271; 2 Burvill’s Practice, 131.) The writ of error in a civil action
or a special proceeding has been abolished (Code of Civil Pro. §
1293,) together with the distinction between actions at law and suits
in equity, and the forms of those actions and suits (Id. § 3339), and
the term “appeal” has been applied to the proceeding to review
the determination below, whether that determination was made in
an action or proceeding which formerly would have been classified
as legal or equitable. It has been held in substance that the remedy
by appeal furnished by the Code, so far as relates to common-law
actions, is a mere substitute for the old writ of error, the change
being merely one of name, and that in respect to suits in equity, it
is identical with the former appeal. (See Gormly v. McIntosh, 22
Barb. 271.) How far the remedies are analogous it is no longer
profitable to consider at any length.

There has been considerable discussion in the reported cases as to
1
2 New Trrats anp APPEALS.

 

Nature of the remedy by appeal.

 

whether an appeal is in the nature of a new action (See J?ice v.
Floyd. 1 Code R. 112; Enos v. Thomas, 5 How. 361, 366 ; Whitley
v. Leeds, 27 How. 878; Gormly v. McIntosh, 22 Barb. 271;
Kanouse v. Martin, 2 Sandf. 739), or is merely a continuation of
a pending action and a proceeding therein. (See Juhnson v. Yeo-
mans, 8 How. 140; Seeley v. Pritchard, 3 Duer, 669; Jackson v.
Allen, 26 How. 119.) Thus it was held that an appeal from the
Special Term to the General Term of the Supreme Court, the case
continning in the same court, was not in the nature of a new action,
but merely the continuation of the original action. (Johzson v.
Yeomans, 8 How. 140.) This was also so held as to an appeal
from a judgment of a justice’s court to the Court of Common Pleas,
under the Revised Statutes, where the only remedy was a new trial
in the appellate court. (Zraver v. Wichols, 7 Wend. 434; Penno
v. Dickinson, 4 Denio, 84; Gormly v. McIntosh, 22 Barb. 271.)
On the other hand, it has been held that an appeal to the General
Term of the Supreme Court from the decree of a surrogate refusing
to admit a will to probate, is a separate and independent special pro-
ceeding, at least within the meaning of the provision of Code (Code
of Civil Pro. § 3347, subd. 11), declaring that chapters 14 to 20 of
that act shall only apply to actions or special proceedings commenced
on or after September 1, 1880. (fatter of Gates, 26 Hun, 179.)
The nature, scope and general character of the remedy by appeal
varies according to the nature of the determination from which the
appeal is taken, and the jurisdiction conferred upon the court in which
it isheard. Where an appeal is taken from a judgment of a justice
of the peace to the County Court by a notice of appeal containing
a demand for a new trial in the latter court, the proceedings in the
appellate court after the expiration of ten days from the filing of
the justice’s return are substantially the same as if the action had
originally been commenced therein (See Code of Civil Pro. §
3071), and the cause is tried de novo. Yet this removal of the
cause to the appellate court, and retrial of the cause therein, is
treated by the makers of the Code as a mode of “reviewing” the
judgment of the court below. (Id. § 3044.) So where an appeal is
taken, upon the facts, from a decree or order of a surrogate’s court
to the General Term of the Supreme Court, the appellate court
may, in its discretion, receive further testimony or documentary
evidence, and appoint a referee. (Id. § 2586.) _ In either case, in
receiving and passing upon evidence introduced upon the appeal, the
Waren THE Proper Remepy 1s By APPEAL. 3

 

When an appeal is the only remedy.

 

court exercises original rather than appellate jurisdiction. A review
upon an appeal so taken differs widely in its nature from that
obtained upon an appeal to a court exercising an appellate jurisdic-
tion only, and has many of the features of a new and independent
proceeding.

SECTION II.

Wren THE Proper Remepy 1s By APPEAL.

As a general rule, a judgment rendered in an action, or an order
made in an action or special proceeding, may be reviewed upon
appeal; and in some cases an appeal is the only method of obtaining
areview. Thus an objection to a decree or other determination of
a surrogate, founded upon an omissiun therein, or in the papers upon
which it is founded, of the recital or proof of any fact necessary to
jurisdiction, which actually existed, or the failure to take any iuter-
mediate proceeding required by law to be taken, is available only
upon appeal. (Code of Civil Pro. § 2474. See Jackson v. Robin-
son, 4 Wend. 436.) <A final order made in a special proceeding
instituted by a writ of prohibition can be reviewed only by appeal.
(Code of Civil Pro. § 2102.) So rulings of the court upon ques- °
tions of law arising upon the trial of issues of fact by a jury,
or rulings of the court or referee upon questions of law arising upon
the trial of an issue of fact without a jury, including a refusal to
tind upon a questicn of fact, or a finding without evidence to sus-
tain it, if duly expected to, may be reviewed upon appeal from tlic
judgment rendered after the trial, and can be reviewed only upon
such appeal, except in a case where it is expressly prescribed by law
that a motion for a new trial may be made thereupon. (Id. $$ 992-
996.)

A judgment rendered by a court having jurisdiction of the sub-
ject matter of the action and of the parties thereto, is final until it
has been reversed in some of the modes of review known to the
law, and cannot be impeached collaterally for error or irregularity.
(Fisher v. Hepburn, 48 N. Y. 41; Dobson v. Pearce, 12 N. Y. 156,
164; Smith v. Lewis, 3 Johns. 157, 168.) If the judgment is
erroneous, the only authorized mode of review is by an appeal from
the judgment, or by a motion for a new trial. The decision of the
court rendering the judgment cannot be reviewed upon a motion to
set itaside. (Hisher v. Lepburn, 48 N. Y. 41.)

The proper mode of obtaining a review and correction of errors
4 New TRIALS AND APPEALS.

 

When an appeal is the proper remedy.

 

committed by the court at Special Term in the decision of a motion
which it had jurisdiction to hear and decide, is by appeal to the
General Term from the order under section 1347 of the Code, or by
an application made at a Special Term held by the justice who
granted the order, for an order vacating, setting aside, or re-settling
it. An order of the Special Term, though erroneously or inadver-
tently made, cannot be reviewed upon a motion addressed to a
Special Term held by ancther justice. (People v. National Trust
Co., 31 Hun, 20. See People v. Bergen, 53 N. Y.404) Wherea
motion for a new trial has been made upon the minutes of the jus-
tice before whom the action was tried, and by him denied, the
remedy ef the defeated party is by appeal from the order; and it is
error for another justice to entertain another motion and grant an
order setting aside the judgment on the ground of error and mani-
fest injustice. (Anapp v. Post, 10 Hun, 35.) But the judge who
has granted a new trial on his minutes, may, on a rehearing of the
motion, vacate the former order and deny the motion. (Herzig v.
Metzger, 62 How. 355.)

The general rule is that a party cannot appeal from one judge to
another of co-ordinate jurisdiction, by way of motion for relief
from an order or judgment against him, but must seek his remedy
by appeal to a tribunal having appellate jurisdiction in the premises.
(Kamp v. Kamp, 59 N.Y. 212. But this rule docs not apply
where the court had no jurisdiction to render the judgment or make
the order. (Id.)

Although a party may have another remedy by motion, an appeal
is an appropriate remedy for the review of orders affecting a sub-
stantial right made in a special proceeding (Code of Civil Pro.
§§ 1356, 1357), unless it is specially prescribed by law that the
order cannot be reviewed. (Id. § 1861.) It is the proper mode of
reviewing a final order made in summary proceedings to recover the
possession of real property (Id. § 2260), or a final order adjudging
a party guilty of a contempt, other than a crimiual contempt, and
directing the punishment therefor (see Watrous v. Kearney, 11
Hun, 584; 79 N. Y. 496; Brinkley v. Brinkley, 47 N. Y. 40), or
a final order, made in a civil special proceeding, adjudging a party
guilty of a criminal contempt and imposing a punishment (People
v. Dwyer, 90 N. Y. 402), or an order vacating an award of arbi-
trators, or a judgment entered upon such award (Code of Civil
Pro. § 2381), or an order made in the course of proceedings sup-
Wuen tHe Proper Remepy 1s py APPEAL, 5

 

In special proceedings.

 

plementary to an execution issued out of a County Court (Id.
§ 2433, subd. 2), or from an order refusing to grant a writ of
habeas corpus or certiorari to inquire into the cause of the deten-
tion of a person, or from a final order made upon the return of such
writ to discharge or remand a prisoner, or to dismiss the proccedings.
(See Id. §§ 2058, 2059. But see Matter of Larson, 96 N. Y. 381.)
It is also the proper remedy for the review of an order granting a
peremptory writ of mandamus. (Id. 2087.)

An appeal to the Court of Appeals is the proper remedy to obtain
a review of questions of law arising upon the hearing before the
Board of Claims, or upon the excess or insufficiency of the award
made by the board if the amount in controversy exceeds $500. (See
Law of 1884, chap. 85, § 2; Id. chap. 329, §15; Laws of 1883, chap.
205, § 10.) An appeal is also the proper mode of reviewing the
appraisal and report of cominissioners appoi:ted to ascertain and
appraise the compensation to be made to owners or persons interested
in real estate propused to be taken for railroad purposes (Laws
of 1850, chap. 140, § 18; Laws of 1876, chap. 198, § 1), or the deter-
mination of commissioners appointed to examine the route of a pro-
posed railroad, ete. (Laws of 1850, chap. 140, § 22; Laws of 1871,
chap. 560), or the determination of commissioners appointed in pro-
ceedings for the drainage of swamps and marsh lands. (See 3 R. S.
(%th ed.] 2450, § 5; Id. 2452, $10; Id. 2453, § 12.)

While a party may be entitled to maintain an appeal from a
judgment or decree by which he deems himself aggrieved, an appeal
may not be the proper mode of presenting the material question for
review in the first instance. Thus, if he desires to review the find-
ings of a jury upon aquestion of fact in action tried in a court of
record, he cannot raise the question as to the correctness of the find-
ings upon an appeal from the judgment alone, but must first move
for a new trial, and, if this is denied, may then obtain a review of
the facts, either on an appeal from the-order denying the motion in
connection with an appeal from the judgment, or upon an appeal
from the order alone. The cases in which a motion for a new trial
is an indispensable preliminary to a review of questions of fact will
be considered hereafter.
6 New Triacs anp APPEALS.

 

Remedies for irregularities or errors in fact.

 

SECTION III.

Wuen tae Remepy, in tHe First Insrancs, 1s By Morton.

Remedies for irregularities or errors in fact.—The law
provides two methods of correcting errors in legal proceedings: one
by motion, where the error is one of form arising out of a failure to
conform to the settled rules of practice, and the other, by appeal,
where the error consists in the omission by the court itself to
properly observe and apply the law affecting the rights involved in
the controversy when making its adjudication upon them. (Lzbdby
v. Rosekrans, 55 Barb. 202.) The statute expressly authorizes a
motion to set aside a judgment for irregularity or error in fact, pre-
scribes the time within which the motion must be made, and what
notice must be given, and declares that where a judgment is set aside
for any cause on motion, the court may direct and enforce restitu-
tion in like manner and with like effect, and subject to the same
conditions as where a judgment is reversed upon appeal. (Code of
Civil Pro. §§ 1282-1292.) Jt also provides that the court may in
its discretion, and upon such terms as justice requires, at any time
within one year after notice thereof, relieve a party from a judg-
ment, order or other proceeding taken against hin throngh his mis-
take, inadvertence, surprise, or excusable neglect, and may supply
an omission in any proceeding ; and that where a proceeding taken
by a party fails to conform to a provision of the Code, the court may
in like manner and upon like terms, permit an amendment to con-
form it to the provision. -(Id. § 724.) Independent of any statute,
the court has inherent power to modify, vacate, or set aside its
orders and judgments, and in the absence of an express prohibition
may deal with them so that what is right and just may be reached.
(Matter of City of Buffalo, 78 N. Y. 362; Diets v. Farrish, 11
Jones & Sp. 87; Dinsmore v. Adams, 48 How. 274; 5 Hun, 149;
66 N. Y. 618. See Brown v. Brown, 58 N. Y. 609; Matter of
Price, 67 N. Y. 231; Phelps v. Baker, 60 Barb. 107; 41 How.
237.)

The remedy for a mere irregularity is by motion and not by
appeal. (Pitt v. Davison, 37 Barb. 97; 13 Abb. 129; Dart v.
McAdam, 27 Barb. 187.) This is also the remedy where there is a
mistake in the judgment entered. (Union Wat. Bank v. Kupper,
63 N. Y. 617.)
Waen THE Remupy, in rae First Instanor, 13 By Motion. 7%

 

Remedies for irregularities or errors in fact.

 

Tf a judgment has been erroneously entered for a greater sum
than is warranted by the decision of the court, or the verdict of a
jury (Binsse v. Wood, 37 N. Y. 526, 532; Beardsley Scythe Co. v.
Foster, 36 N. Y. 561), or if it contains a clause inserted without
authority (People v.Gof, 52 N. Y. 434), or if it fails to include
some provision for the relief of a party which might properly have
been inserted therein (see Wright v. Nostrand, 94 N. Y. 31, 41), or
if it misstates the ground of the recovery (see Cagger v. Lansing,
64 N. Y. 417), or if it vontains an erroneous direction as to the
manner in which it shall be carried into effect, not affecting the
decision of the cause on the merits (Cole v. Tyler, 65 N. Y. 73), or
if it fails to conform to the order or decision upon which it is
entered (Ingersoll v. Bostwick, 22 N.Y. 425; Hackett v. Belden,
47 N.Y. 624; Kenny v. Apgar, 93 N. Y. 539, 548), or if it departs
from a form prescribed by statute (Buck v. Leemsen, 34 N.Y. 3883;
Johnson v. Carnley, 10 N. Y. 570. See Dwight v. Enos, 9 N. Y.
470), the remedy in the first instance is by motion, and if the proper
relief is not granted, then by appeal from the order denying it.

The remedy for anerror of theelerk in the taxation or re-taxation
of costs, is by motion at the Special Term for a new taxation, or to
correct the judgment, and not by appeal. (See Code of Civil Pro.
§§ 3264, 3265 ; Leonard v. Columbia Steam Navigation Oo., 84 N.
Y. 48; Lece v. Childs, 28 lun, 303; Conely v. Mayor, 1 Civ. Pro.
R. 306; Dresser v. Brooks, 2 N. Y. 559; 4 How. 207; Beatie v.
Qua, 15 Barb. 132.)

Where a statute declares that an adjudication by an inferior trib-
unal shall be final and conclusive, thus zutting off review by appeal
or certiorari (see People v. Betts, 55 N. Y. 600), and the adjudica-
tion is affected by fraud, irregularity or mistake, a motion to set
aside the adjudication upon that ground, is a proper and perhaps the
only available remedy. (Matter of Application of Mayor, etc., of
N.Y., 49 N.Y. 150; Matter of N.Y. Cent. @ H. R. LR. R. Co.,
64 N. Y. 60.)

Where a new trial has been granted upon the minutes of the
county judge, on motion of the plaintiff, in an action taken by appeal
to the County Court, and the order entered does not disclose the
grounds upon which the motion was made or granted, the remedy of
the defendant is by :notion in the County Court to set aside the order
as irregular, and not by appeal to the General Term of the Supreme
Court, as an appellate court will not reverse the order of the court
8 New Trias anp APpPrALs.

 

Ex parte orders—Orders made out of court upon notice.

 

below for errors not appearing upon the record, (imman v. Still-
well, 34 Hun, 178.)

Ex parte orders.—No appeal lies from an order granted ex
parte. The remedy is by motion at Special Term, on notice and the
proper papers, to set aside the ex parte order objected to; and if
the motion is denied, an appeal may then be taken from the order
of denial, which will present the case to the appellate court as it was
presented to the court making the order. (People v. Common Coun-
el, 830 Hun, 636; Matter of Johnson, 27 Hun, 538.)

Orders made out of court upon notice.—Where an order is
made by a judge out of court upon notice, or what amounts to the
same thing, upon the return of an order to show cause, the party
aggrieved by the order has two remedies—one by appeal from the
order, and the other by motion at the special tern to vacate or set it
aside. (See West Side Bank v. Pugsley, 47 N. Y. 368.) This was
so held on appeal from an order of the General Term, dismissing
an appeal from an order of the Special Term, denying a motion to
vacate an order made by a judge out of court, in a proceeding supple-
mentary to execution, directing the appellants, as debtors of the judg-
ment debtor, to pay over certain money to the sheriff holding the
execution, The question discussed and determined by the court was
whether the party aggrieved by the original order was limited toa
review by appeal, or whether he had also a remedy by motion at
Special Term to vacate the order. This decision determined the
practice under the old Code. But the present Code provides that an
order made in the course of a proceeding supplementary to an execu-
tion against property, can be reviewed only as follows:

“1. An order, made by a judge, out of court, may be vacated or
moditied by the judge who made it, as if it was made in an action ;
or it, or the order of the judge vacating or modifying it, may be
vacated or modified, upon motion, by the court out of which the
execution issued.

“2. Where the execution was issued out of a county court, an
appeal from an order, made in the course of the proceedings, may
be taken in like manner, as if the order was made in an action
brought in the same court.” (Code of Civil Pro. § 2483.) Tie
language used in the section above cited is unfortunately chosen if
it was not the design of the legislature to prohibit an appeal from
Retier FRoM JUDGMENTS OR OrpERs Upon DEFAULT. 9

 

When no appeal lies.

 

an order made by a judge out of court in a proceeding supplemen-
tary to an execution, not issued out of a County Court, and to limit
the remedy of the party aggrieved to a motion to vacate or modify
the order. That such was the design, and that no appeal will lic
from an order in supplementary proceedings made by a judge out of
court, has been expressly held. (Chamberlain v. Gallup, 25 Hun,
318.) But undoubtedly an appeal from an order of the Special
Term denying a motion to vacate or modify an order made by a
judge out of court will be entertained by the General Term if it
affects a substantial right, notwithstanding the apparent limitation
contained in the section quoted.

SECTION IV.
Reuter FRoM JUDGMENTS oR OrpeRs upon DEFAvLt.

As a general rule, a party is not permitted to appeal from a judg-
ment or order rendered or made upon his default (Code of Civil
Pro. §§ 1294, 2568, 3190, 3192; Flake v. Van Wagenen, 54 N.Y.
25; Miller v. Tyler, 58 N. Y. 477; Innes v. Purcell, id. 388;
McMahon v. Rauhr, 47 N.Y. 67; Colden v. Knickerbacker, 2
Cow. 31), and in case injustice has been done him, his remedy is to
apply to the court to have the default opened, or the jndgment or
order set aside (see Code of Civil Pro. § 724), and if the motion
is denied, to appeal from the order of denial. (Security Bank v.
Bank of Commonwealth, 2 Wun, 287; 48 How. 185.)

This rule applies to appeals to the Court of Appeals, to appeals
to the Supreme Court from an inferior court, to appeals to the Gen-
eral Term of the Supreme Court or a Superior City Court, and to
appeals from a determination in a special proceeding. (See Code of
Civil Pro. chap. 12, title 1.) It does not apply to appeals from a
justice’s court to the County Court, or from a judgment rendered by
a District Court of the city of New York to the Court of Common
Pleas, or to appeals from the Municipal Court of the city of Roch-
ester to the County Court of the county of Monroe. (See Id. §§
3065, 3218; Laws of 1882, vol. 2, chap. 410, § 1488; Laws of 1880,
chap. 14, title 10, § 246.) An appeal may be taken to the County
Court from a judgment rendered by a justice of the peace by a
‘defendant who failed to appear before the justice, cither upon the
return of the summons, or at the time to which the action was
adjourned; and if he shows upon the hearing of the appeal, by
10 New Trrats anp APPEALS.

 

When appeal lies.

 

affidavit or otherwise, that manifest injustice has been done, and
renders a satisfactory excuse for his default, he may have the judg-
ment set aside, or the proceedings thereunder stayed, and an order
made directing a new trial before the same justice or another justice
of the same county. (Code of Civil Pro. § 8064.) The same
relief may be obtained on an appeal from a judgment rendered by
a District Court of the city of New York (Id. § 3218), by the Jus-
tice’s Court of the city of Troy (Id.), by the Justice’s Court of the
city of Albany, (Id.), now the City Court of Albany (Laws of 1884,
chap. 122), by the Municipal Court of the city of Rochester, (Laws
of 1880, chap. 14, title 10, § 246), by the Municipal Court of Buf-
falo (Laws of 1880, chap. 344, § 6), by the City Court of Auburn,
(Laws of 1879, chap. 53, title 6, § 66), and probably on appeal from
judgments of other inferior courts of local jurisdiction, notwith-
standing that another remedy may exist by way of motion to open
the default.

An appeal will also lie to the County Court from a judgment
rendered by a justice of the peace upon the defendant’s default,
although no new trial is desired before the justice ; and if it appears
upon such appeal that the plaintiff failed to prove a fact essential to
a recovery, or proved it by incompetent and improper evidence
only, the judgment will be reversed. (See Lverett v. Parks, 62
Barb. 9; Howard v. Brown, 2 E. D. Smith, 247; Fanning v.
Lent, 3 id. 206; Perkins v. Stebbins, 29 Barb. 523; Armstrong v.
Smith, 44 Barb. 120; Blair v. Bartlett, 75 N. Y. 150, 153; Worth-
rup v. Jackson, 18 Wend. 85; Squier v. Gould, 14 Wend. 159;
Warnick v. Crane,4 Denio, 460.) The same relief may be obtained
on appeal to the Common Pleas from a judgment by default ren-
dered by a District Court of-the city of New York. (See Hurry v.
Coffin, 2 Civil Pro. R. 319; Pultz v. Dossy, 53 How. 270.) So
where an issue of Jaw or fact was joined before the justice, and the
sum for which judgment was demand by either party in his plead-
ing exceeds fifty dollars, or where, in an action to recover a chattel,
the value of the property as fixed, together with the damages recov-
ered, if any, exceeds fifty dollars, an appeal from the judgment ren-
dered by the justice may be taken to the County Court fora new
trial therein, although the defendant was not present at the trial in
the court below. (Code of Civil Pro. § 8068.) This remedy by
way of appeal and new trial is also given where the judgment was
rendered in the Justice’s Court of the city of Troy (Id. § 3213), in
Reuier rrom Vow JupagMents or OrpDeERs. 11

 

Want of jurisdiction.

 

the City Court of Albany (Id.) in the Municipal Court of the city
of Rochester (Laws of 1880, chap. 14, title 10, § 246), in the
Municipal Court of Buffalo (Laws of 1880, chap. 344, § 6), and in
the City Court of Auburn (Laws of 1879, chap. 53, title 6, § 66),
but is not given where the judgment was rendered by a District
Court of the city of New York. (Code of Civil Pro. § 3213.)

SECTION V.
Reuier From Vow JupG@MEents ok ORDERS.

Want of jurisdiction.—A party aggrieved by a judgment or
order which is void for want of jurisdiction in the court which made
or rendered it has a remedy by appeal; and the appellate court may
so far act upon the void determination as to reverse it with costs of
the appeal and thus restore the parties to the position they origin-
ally oceupied. (Striker v. Mott,6 Wend. 465 ; McMahon v. Rauhr,
47N. Y. 67; Harris v. Clark, 10 How. 415; Auhndolf v. That-
heimer, 12 N. Y. 593; Gormly v. McIntosh, 22 Barb, 271. See
People v. Eggleston, 13 How. 123, 128; Starr v. Trustees of Va-
laye of Rochester, 6 Wend. 567; Hitch v. Devlin, 15 Barb. 47.)

A party is not bound to appeal from a void order or judg-
ment, bat may resist it, and assert its invalidity at all times. (Kamp
v. Kamp, 59 N. Y. 212; Ferguson v. Crawford, 70 N.Y. 253;
Rerr vy. Kerr, 41 N. Y. 272, 275.) Ifa court, authorized by statute
to entertain jurisdiction in a particular case only, undertakes to exer-
cise the power and jurisdiction conferred in a case to which the
statute has no application, it acquires no jurisdiction, its jadgment is
a nullity, and will be so treated when it comes in question either
directly or collaterally. (2isley v. Phenia Bank of New Y ork, 83
N. Y. 318; State of Rhode Island v. Commonwealth of Massachu-
setts, 12 Peters, 657; Wélcox v. Jackson, 13 Peters, 498, 511;
Elliott v. Peirsol, 1 Peters, 328, 340; Chemung Canal Bank v.
Judson, 8 N. Y, 254, 259.) Want of jurisdiction, either of the
subject-matter or of the person of either party, renders a judgment
a mere nullity ; and this is a matter which may always be interposed
against the judgment when sought to be enforced, or when any
benefit is claimed under it. (Craig v. Town of Andes, 93 N. Y.
405, 410; Kerr v. Kerr, 41 N.Y. 272; Borden v. Fitch, 15 Johns.
121.)
12 New Triats anp APPEALS.

 

Fraud.

 

If through mistake of the parties as to the jurisdiction of a.
court, a final judgment is entered therein which the court had no
jurisdiction to render, and which, thongh void, bars a party of his
rights after all his remedies at law have been exhausted, he has still
a remedy in equity by way of an action to annul and set aside the
judgment and the order directing it. (Wilmore v. Flack, 96 N.Y.
512.)

The remedy of a party aggrieved by an order which the court,
had no jurisdiction to make, is either by appeal, or by motion at
Special Term to have it set aside for want of jurisdiction. His right
to the latter remedy is not barred by the fact that he appeared on
the motion and opposed the granting of the order. (Hamp v.
Kamp, 59 N. Y. 212.)

The execution of a judgment or order, rendered or made without
jurisdiction, cannot be restrained by a writ of prohibition. That
process is preventive rather than remedial, and cannot take the
place of an ordinary proceeding for review, nor can it restrain a min-
isterial act. (See Thomson v. Tracy, 60 N. Y. 31; People v. Com-
missioners of Excise, 61 How. 514; Ex parte Braudlacht, 2 Hill,
3867; People v. Seward, 7 Wend 518.)

Fraud.—-Every judgment may be impeached for fraud as well
as for want of jurisdiction. (Kinnier v. Kinnier, 45 N.Y. 535;
Mandeville v. Reynolds, 68 N. Y. 528, 543.) If an action is
brought on the judgment, the defendant may allege and prove, as a
defense, that it was obtained by fraud (Dobson v. Pearce, 12 N. Y.
156; Mandeville v. Reynolds, 68 N. Y. 528, 545,) and, generally
speaking, whenever a party liable to be injured by a judgment tainted
by fraud, has had no opportunity to protect himself against it at law,
a court of equity will award him the appropriate relief in an action
brought for that purpose. (Wahzdttlesey v. Delaney, 73 N. Y. 571,
575 ; State of Michigan v. Phenia Bank, 33 N. Y. 9, 27; Hinck-
ley v. Miles, 15 Hun, 170; Warner v. Blakeman, 4 Keyes, 487;
4 Abb. Ct. App. 580; Dobson v. Pearce, 12 N. Y. 156; Wrigh¢ v.
Miller, 8N. Y.9; McMurray v. McMurray, 66 N. Y. 175.) So
where an order has been obtained for fraudulent purposes, an action
will lie in equity to set aside the order and the proceedings under it.
(Lackley v. Draper, 60 N. Y. 88.)

The fraud which will justify equitable interference in setting
aside judgments and decrees must be actual and positive, and not
Wuen tue Remepy 1s sy Writ or Certiorant. 13

 

Nature of the remedy by writ of certiorari.

 

merely constructive. It must be that which occurs in the very con-
coction or procuring of the judgment or decree, and something not
known to the opposite party at the time, and for uot knowing which
he fs not chargeable with negligence. TRelief can be granted only
upon some new matter of equity not arising in the former case.
Equity will not take cognizance on the same grounds of the very
point which another court of competent authority in the case has
considered and decided. (J?oss v. Wood, 70 N. Y. 8.) It is not
sufficient to authorize the interference of the court, that it is shown
that the claim upon which the judgment was obtained was
unfounded, or that there was a good defense to the action, or that
the court erroneously decided the law, or that the defendant omitted
to avail himself of his defense, if before the judgment was ren-
dered the facts were known, or might by reasonable diligence have
been ascertained by him. (Smzth v. Melson, 62 N. Y. 286; Stilwell
v. Carpenter, 59 N. Y. 414; 62 N. Y. 639; Foster v. Wood, 6
Jolins. Ch. 89.) There must be facts which prove it to be against
conscience to execute the judgment, and which the injured party
could not make available in a court of law, or which he was pre-
vented from presenting by fraud or accident unmixed with any
fraud or negligence in himself or his agents. (Kinnier v. Kinnier,
45 N. Y.5385; MMe Vickar v. Wolcott, 4 Johns. 510; New York &
Harlem . I. Co.v. Haws, 56 N. Y.175, 181.) Equity will not inter-
pose upon the ground that the judgment was erroneous. The error
must be corrected, if at all, in the action in which it occurred. (Id.)

SECTION VI.

Wuen tue Remepy is By Writ or CERTIORARI.

A person aggrieved by the judgment, order, decision, adjudica-
tion or other judicial act of a court, tribunal, board, corporation, or
aggregation of persons, made in a civil case, who has no other
means of redress, may obtain a review of the determination com-
plained of, if it is a final determination of the rights of the parties
with respect to the matter to be reviewed, by a writ of certiorari
issued ont of the Supreme Court, or a Superior City Court, or other
court expressly authorized by the statute to issue it, upon an appli-
cation seasonably made to a General or Special Term thereof,
founded upon an affidavit or verified petition showing a proper case
for the issuing of the writ. (See Code of Civil Pro. §§ 2120, 2121,
14 New Trias anp APPEALS.

 

When the remedy is by writ of certiorari.

 

2122, 2123, 2125, 2126, 2127; Wildy v. Washburn, 16 Jolins. 49 ;
People v. Supervisors of St. Lawrence Co., 25 Hun, 131; People v.
Board of Health, 33 Barb. 344; 12 Abb. 88; 20 How. 458.) This
writ can be issued in one of the following cases only: ;

1. Where the right to the writ is expressly conferred, or the
issue thereof is expressly authorized by a statute.

2. Where the writ may be issued’at common law by a court of
general jurisdiction, and the right to the writ, or the power of the
court to issue it, is not expressly taken away by a statute. (Code
of Civil Pro. § 2120.) It cannot be issued to review a determina-
tion made in a civil action or special proceeding by a court of record
or a judge of a court of record. (id. § 2121.) The statute provides
another mode of review by way of appeal. (Id. §§ 1347, 1348, 1356,
1857.) Exceptas otherwise expressly prescribed by a statute, the
-writ cannot be issued in either of the following cases :

1. To review a determination which does not finally determine
the rights of the parties, with respect to the matter to be reviewed.
(Id. § 2122, subd. 1. See People v. Grace, 16 Week. Dig. 349 ;
Lynde v. Noble, 20 Johns. 80; Devlin v. Platt, 20 How. 167; 11
Abb. 398 ; Hamilton v. Deane, 58 How. 290; People v. Trustees
of Palmyra, 3 Hun, 549; People v. Supervisors of Livingston Co.,
43 Barb. 232, 237. But see People v. Covill, 20 Ilun, 460; People
v. Cooper, 21 Hun, 517.)

2. Where the determination can be adequately reviewed by
appeal to a court, or to some other body or officer. (Code of Civil
Pro. § 2122, subd. 2. See People v. Dennison, 28 Hun, 328. But
see Code of Civil Pro. § 2147; People v. Duly, 67 Barb. 325; 4
Hun, 641; People v. Townsend, 10 Abb. N. C. 169.)

3. Where the body or officer making the determination is ex-
pressly authorized by statute to rehear the inatter upon the relator’s
application; unless the determination to be reviewed was made
upon a rehearing, or the time within which the relator can procure
rehearing has elapsed. (Code of Civil Pro. § 2122.)

When the right to a certiorari is given in express terms by
statute, the court has no right to withhold the remedy although
there is another remedy by appeal. (People v. Daly, 67 Barb.
325; 4 Hun, 641.)

It will be seen from the provisions of the Code heretofore cited,
that a writ of certiorari may issue under that act in a case where it
nay be issued at common law by a court of general jurisdiction,
Wuen THE Remepy 1s By Writ or CERTIORARI. 15

 

Nature of the remedy by writ of certiorari.

 

unless the right to the writ, or the power of the conrt to issue it, has
been expressly taken away bya statute. (See ante, p. 14.) This
makes it necessary to consider the nature of the remedy by common
law certiorari. A common law certiorari is in the nature of an
appeal from the judgments and judicial determinations of inferior
tribunals, and of officers acting under statutory authority, or where
the proceeding is not according to the common law. The writ lies
only to inferior courts and officers exercising judicial powers affect-
ing the property or rights of the citizen, and is directed to the
court, magistrate, or board, exercising sucli powers, requiring them
to send into the Supreme Court from which the writ issues, the pro-
ceedings in a cause or matter already terminated. (eople v. Wal-
ter, 68 N. Y. 403; Stone v. Mayor, ete, of New York, 2
Wend. 157; People v. Mayor, etc., of New York, 2 Hill, 9;
Lynde v. Noble, 20 Johns. 80; Lawlon v. Commissioners of High-
ways, 2 Caines’ R. 182; Starr v. Trustees of Lochester, 6 Wend.
564; He parte Mayor of Albany, 28 Wend. 277.) It does
not lie to a ministerial officer (People v. Supervisors of
Queens, 1 Hill, 195; People v. Walter, 68 N. Y. 403), although
the exercise of his powers may require the use of discretion and
judgment (Id.), nor to correct errors of a legislative character.
(People v. Board of Health, 33 Barb. 344; 12 Abb. 88; 20 How.
458; People v. Supervisors of Livingston Co., 43 Barb. 232.)
Strictly speaking the office of the common law certiorari is merely
to bring up the record of the proceedings of an: inferior court or
tribunal, to enable the court of review to determine whether the
former has proceeded within its jurisdiction, and not to correct mere
errors in its proceedings. (People v. Commissioners of Highways,
30 N.Y. 72.) But the scope of the writ was enlarged by quasi
judicial legislation, and it became the settled rule that in addition
to the inquiry as to the jurisdiction of the inferior tribunal over
the parties and the subject matter, it was the duty of the court of
review to examine the evidence and determine whether there was
any competent proof of the facts necessary to’authorize the adju-
dication made, and whether, in making it, any rule of law affecting
the rights of the parties had been violated. (People v. Smith, 45
N. Y. 772; People v. Spencer, 55 N.Y. 1,6; People v. Board of
Metropolitan Police, 39 N. Y. 506; People v. IHulburt, 46 N. Y.
110, 114; People v. Board of Police, 72 N. Y. 415; People v.
Betts, 55 N.Y. 600; People v. Assessors of Albany, 40 N. Y.154;
16 New Triats AnD APPEALS.

 

When the remedy is by writ of certiorari.

 

Freeman v. Ogden, 40 N. Y. 105; People v. Trustees of Ogdens-
burgh, 48 N. Y. 390, 393. See Western 2. R. Co. v. Nolan, 48
N. Y. 513; People v. Supervisors of Madison Co., 51 N. Y. 442;
People v. Allen, 52 N. Y. 538; People v. Board of Fire Commis-
stoners, 82 N. Y. 358; People v. Board of Police and Excise, 69
N. Y. 408.) But here the right of review ends. The court cannot
review determinations made upon conflicting evidence, or upon
conflicting inferences drawn from the facts, or matters of judgment
and discretion in a case justifying their exercise. If the tribunal
had jurisdiction, and there was evidence legitimately tending to
support its decision, and no rule of law was violated, the
adjudication is final, and cannot be reviewed upon certiorari merely
because the court issuing the writ would have decided differently
upon the facts if the case had been presented to it in the first
instance for decision. (Id.; People v. Campbell, 82 N. Y. 247;
People v. Board of Police Commissioners, 6 Hun, 229; 11 Hun,
513; 52 How. 289; People v. Sanders, 3 Hun, 16; People v. Police
Commissioners, 10 Hun, 106.) The same rule seems to have been
observed on the hearing in the Supreme Court and on appeal to the
Court of Appeals.

Among the erroneous determinations which have been reviewed
and reversed upon certiorari are the rejection by boards of super-
visors of just and legal claims. (See People v. Supervisors of
Madison Co., 51 N. Y. 442.) Determinations by assessors. (See
People v. Assessors of Albany, 40 N. Y. 154; Western R. R. Co.
v. olan, 48 N. Y. 518; People v. Trustees of Ogdensburgh, 48
N. Y. 390; People v. Allen, 52 N. Y. 538.) Determinations by
county judges in proceedings to bond towns in aid of railroads.
(See People v. Smith, 45 N. Y. 772.) Decisions of boards of police
removing an officer, and the like. (See People v. Board of Police,
72 N. Y. 415; People v. Board of Police Commissioners, 93
N.Y. 9%)

The scope of the review upon a certiorari seems to have been
enlarged by the Code of Civil Procedure. (See People v. Jourdan,
1 Civ. Pro. R. 328; People v. French, 92 N. Y. 306; People v.
Fire Commissioners, 30 Hun, 376.) The questions involving the
merits to be determined by the court upon the hearing upon a writ
issued under the Code are the following only :

1. Whether the body or officer had jurisdiction of the subject-
matter of the determination under review.
Wuen tue Remepy ts By Watr or CertIoraRI. 17

 

Questions determined on the hearing.

 

2. Whether the authority conferred upon the body or officer in
relation to that subject-matter has been pursued in the mode
required by law, in order to authorize it or him to make the deter-
mination.

3. Whether, in making the determination, any rule of law,
affecting the rights of the parties thereto, has been violated to the
prejudice of the relator.

4, Whether there was any competent proof of all the facts neces-
sary to be proved, in order to authorize the making of the deter-
mination.

5. If there was such proof, whether there was, upon all the
evidence, such a preponderance of proof against the existence of
any of those facts, that the verdict of a jury affirming the existence
thereof, rendered in an action in the Supreme Court triable by a
jury, would be set aside by the conrt as against the weight of
evidence. (Code of Civil Pro. § 2140.)

The section cited relates solely to the questions reviewable on the
“hearing” upon the return of the writ, and does not authorize a
review by the Court of Appeals of a disputed question of fact on
an appeal taken from the order made on such hearing. (People v.
French, 92 N. Y. 806.) Nor does this section authorize the
General Terin upon the hearing to review decisions as to the
admission and rejection of evidence. (People v. Hair, 29 Hun,
125.)

Where a statute declares that a determination of a board or
officer shall be final and conclusive, it prohibits a review by certio-
rari (See People v. Betts,55 N. Y. 600), at least upon the merits,
though perhaps the question of jurisdiction is open toreview. (See
People v. Freeman, 3 Lans. 148; People v. Canal Board, 7 Lans.
220; People v. Dewey, 1 Hun, 529; see also Le Roy v. Mayor, ete.,
of N. Y., 20 Johns. 430; Bradhurst v. President, etc. of South-
western Turnpike Co., 16 Jolins. 8; Lx parte Mayor of Albany, 23
Wend. 277; Matter of the Application of Mayor, etc. of N. ¥.,
49 N. Y. 150.)

While the scope of a review by certiorari, in the cases in which
it is authorized, has been enlarged by the Code, the cases in which
it is the proper remedy have been lessened by provisions of that
and other acts extending the remedy by appeal. The tendency of
recent degielation is towards a uniform mode of review of the
18 New Trrats anp APppra.s,

 

Waiver of the right to appeal.

 

determinations of all courts or bodies exercising judicial powers ;
and in many cases express provision has been made for an appeal
where formerly the only remedy was by certiorari,

SECTION VII.
Waiver or THE Rieur to APPEAL.

By stipulation or agreement.—A party may waive his right
to appeal by entering into a stipulation that a judgment or order
shall be final, and that no appeal shall be taken therefrom, or by
other words showing a clear intent to cut off the right ; and where a
proper stipulation to that effect has been entered into by the parties,
an appellate court will enforce it by declining to pass upon the
questions which have thus formally been waived. (Zownsend v.
Masterson, cte., Stone Dressing Co., 15 N. Y. 587.) But a stipula-
tion to be construed as barring the right to appeal shonld be very
clear in its terms, and should leave no doubt of the intention of the
party to cut himself off from the right. (Stedeker v. Bernard, 93
N. Y. 589.) Not only this, but to be valid it must be based upon
some consideration, or the facts must estop the party from exercising
the right. (Ogdensburgh & Lake Champlain R. R. Co. v. Vermont
& Canada I. R. Co., 63 N. Y.176.) Whether an appeal has been
effectually waived by stipulation must depend upon the facts of
each particular case and the language of the instrument.

By acts inconsistent with the right.—A party may also
waive his right to appeal from a judgment or order by acts which
are wholly inconsistent with the assertion of the right. Thus, if all
the provisions of a judgment are connected and dependent, so that
a part cannot be reversed without a reversal of the whole, a party
cannot proceed to enforce such portions of the judgment as are in
his favor and appeal from the part which is against him. In such
cases the right to proceed on the judgment and enjoy its fruits, and
the right to appeal, are not concurrent but wholly inconsistent, and
an election to assert one right isa waiver and renunciation of the
other. (Bennett v. Van Syckle, 18 N. Y. 481; Murphy v. Spauld-
ing, 46 N. Y. 556: Knapp v. Brown, 45 N. Y. 207; Marvin v.
Marvin, 11 Abb. N. 8. 97. See also Carll v. Oakley, 97 N.Y.
633.) The waiver is not limited to the right to appeal, but extends
Walver oF THE Ricut to APPEAL. 19

 

By acts inconsistent with the right.

 

as well to the right to prosecute an appeal already taken. (Id.)
The principle is the same in either case.

One who has entered a judgment, part of which isin his favor,
and an independent part of which is not, and has resisted an appeal
taken by the other party, and upon affirmance of the judgment and
the sending down of the remittitur has cansed the decision of the
appellate court to be made the judginent of the court below, cannot
thereafter appeal from the whole judgment. By these acts of elee-
tion he has waived that right. (Genet v. Davenport, 59 N. Y.
648.) But if there are, in fact, two or more judgements, really sev-
eral and entirely disconnected, though included in the same record,
the determination of a prior appeal from one of the judgements
does not prevent an appeal from one of the others which was not
before the appellate court for review. (Genet v. Davenport, 60 N.
Y. 196.)

A creditor by merely receiving the amount of his distributive
share as fixed by a decree of a surrogate, does not thereby waive his
right to appeal froin the decree and on such appeal procure an
increase of the amount of his dividend by a reduction of tlic allowance
of expenses. (Higbie v. Westlake, 14 N. Y. 281.) The fact that
a party merely accepts what he is entitled to by the judgment of a
court, and which he would be entitled to in any event, does not
deprive him of his right to appeal, if the relief he is seeking will not
require the reversal of the judgment in toto. (See Clowes v. Dick-
inson, 8 Cow. 328; Benkard v. Babcock, 2 Rob. 175; 27 How.
391; 17 Abb. 421. See also People v. Supervisors of Cortland
Co., 58 Barb. 139, 151; 40 How. 53, 65.)

The payment of a wholly adverse judgment, under an execution
issued to enforce it, does not prejudice the right to appeal from the
judgment. (Burch v. Newbury, 4 How. 145; Schermerhorn v.
Wheeler, 5 Daly, 472.)

The general doctrine that a silts waives his right to appeal by
acts inconsistent with the assertion of that right applies to appeals
from orders as well as to appeals from judgments. If a party makes
an application to the court for a favor, and the motion is granted on
terms, or conditionally, an acceptance of the benefits conferred by
the order will preclude him from appealing from it or from denying
the authority of the court to grantit. (Smith v. Rathbun, 75 N.Y.
122; Glackin v. Zeller, 52 Barb. 147; Brady v. Donnelly, 1 N.Y.
126; Strong v. Jones, 25 lun, 319. See Vai v. Lemsen, 7 Paige,
20 Nuw Triats anp APPEALS.

 

Waiver of, the right to appeal.

 

206.) While a party may appeal from that part of an order which
imposes a condition, if he is entitled to the order unconditionally
( Wheeler v. Tracy, 15 Jones & Sp. 368), yet if the case is one in
which the court has a discretion to impose a condition, and exercises
the discretion, a compliance with the condition for the purpose of
obtaining the benefit of the order, though under protest, is a waiver
of the right to appeal fiom the. part imposing the condition.
(Dambmann v. Schulting, 6 Wun, 29.) Thus, where a motion to
discharge a defendant from arrest is granted upon condition that he
stipulate not to bring an action for damages for false imprisoninent,
and the defendant does so stipulate in order to secure his release, he
cannot, after thus receiving the benefit which a compliance with the
condition procured for him, appeal from that portion of the order
requiring the stipulation. (Claflin v. Hrenkel, 29 un, 288; 3 Civ.
Pro. R. 109. See Wetchsel v. Spear, 15 Jones & Sp. 223; Matter
of Waverley Water Works Co., 85 N. Y. 478; Brownell v. Leuck-
man, Id. 648; Trial Practice, 534.) So an acceptance of the costs
imposed as a condition of granting a favor to the adverse party is
a waiver of the right to appeal from that part of the order
which grants the favor. (ladway v. Graham, 4 Abb. 468; Platz
v. City of Cohoes, 8 Abb. N.C. 392; Lewis v. Irving, 15 Abb.
140, n.) The general rule is that a party cannot take the benefit
of an order and at the same time have an appeal therefrom ; and
this rule invariably applies where the benefits or advantages of the
order are conditional, or are connected with, or are made in some
manner dependent upon other provisions to which objection is
urged by appeal. But to make the acceptance of a benetit under an
order operate as a waiver of the right to appeal, there must be an
inconsistency in retaining such benefit, and at the same time appeal-
ing from the order. And if a favor is granted to the moving party
by one provision of an order, and costs of motion are awarded to the
adverse party, absolutely, and not as a condition of granting the
motion, by another independent provision, the acceptance of these
costs, when tendered, is not inconsistent with the denial of the
right of the moving party to the relief granted him, and is not
a waiver of the right to appeal from the part of the order granting
such relief, especially, if under the settled practice of the court, the
party accepting the costs would be entitled to them in any event,
even upon the reversal of the order upon appeal. (Jfatter of the
Water Commissioners of Amsterdam v. Chalmers, 36 Hun, 534.)
Watver oF THE Rieut To APPEAL. 21

 

By acts inconsistent with the right.

 

The doctrine of waiver is to be applied in those cases only where
the appellant has attempted to enforce the order in his favor, or some
part thereof connected with or dependent upon such other part as
he seeks to avoid by his appeal, or has accepted. a benefit having
such connection or dependency. (Id.; Benkard v. Babcock, 27
How. 391, 393; 2 Rob. 175; 17 Abb. 421.)

If a party moves for and obtains relief which he is entitled to as
aright rather than as a favor, and other relief connected therewith
and embraced in the motion is improperly denied, the acceptance of
what is granted will not preclude the party from appealing from that
which is denied. (Rodbourn v. Utica, Ithaca & Elmira R. R. Co.,
28 Hun, 369.)

Where the court makes an order granting relief upon terms, the
fact that the unsuccessful party appeals only from so much of the
order as grants the relief, is not of itself such an acceptance of the
other part as to waive the right of appeal. ( Wallace v. Castle, 6&
N. Y. 870.) Where an interlocutory judgment is rendered direct-
ing a reference and an accounting, and a party appears before the
referee, presents claims and proof in support of the same, and con-
tests the claims of the adverse party, he does not thereby waive his
right to review the determination vf the main issues in contro-
versy. (Barker v. White, 58 N. Y. 204; see also Read v. Lozin,
31 Hun, 286; Brown v. Mayor, ete. of N. Y., 9 Hun, 587.) So
where the report of commissioners appointed to appraise land taken
for railroad purposes has been rendered and confirmed, but the land-
owner has not accepted the compensation awarded, the fact that he
appeared by counsel and opposed the confirmation of the report is
not a waiver of his right to appeal from the order appointing the
commissioners of appraisal. It is only where the party has
accepted some benefit under the order that he waives his right to
appeal therefrom. (Matter of NV. Y. Cent. Le. R. Co., 60 N. Y. 112.)
Butif a party by appearing and opposing a motion procures the
insertion in the order of a clause granting him some relief as a matter
of favor which is in effect a modification of the relief demanded by
the moving party, and to which the latter is entitled on the merits,
the opposing party cannot, after having secured and enjoyed the
favor, appeal from the order in which it was granted. (People v.
Rochester & State Line Le. R. Co., 15 Hun, 188.) So if a party
moves to vacate an order, and on the denial of the motion obtains leave
to renew it upon the same and additional papers, and is again
22 New Triace AnD APPEALS.

 

Waiver of the right of appeal.

 

defeated, the act of procuring leave to renew the original motion,
and the fact that it is renewed, operates as a waiver of the right to
appeal from the first decision. (Harris v. Brown, 29 Hun, 4773
Noble v. Prescott, 4 E. D. Sinith. 139.) But an appeal from an
order denying a motion a to set aside the service of a summons is not
waived by the interposition of an answer reiterating the same objec-
ion in the form of a plea to the jurisdiction. (McNamara v.
Canada Steamship Co., 16 Week. Dig. 86.) And the fact that a
defendant interposed an answer setting up the defense that the
recovery sought against him is embraced in a judgment, “ which
remains in full force and effect,” recovered against him by the same
plaintiff in another action, wil! not preclude the party from appeal-
ing from such judgment after he has served an amended answer in
the second action omitting such defense. (Lrescott v. Tousey, 17
Week. Dig. 58.)
It has been held that where a party proceeds with a trial before
-a referee he thereby waives his right to appeal from the order of
reference. (Porter v. Parmly,6 Jones & Sp. 490.) But if the
party objected to the proceedings before the referee on the ground
that the reference was unauthorized, stating that an appeal would
be taken from the order, and only proceeded with the trial after his
objections were overruled, his acts and declarations are inconsistent
‘with an acquiescence in the reference, and the participation in the
trial will not be deemed a waiver of the right to appeal. (lead v.
Lozin, 81 Hun, 286.). This seems at variance with the decision of
the City Court of New York, to the effect that where a new trial
‘has been ordered on a motion made upon the minutes of the pre-
siding judge, and an appeal has been taken from the order, the
-appellant will waive his appeal if he proceeds to the new trial and
‘takes his chances of succeeding thereat, instead of obtaining a stay
pending the appeal; and that the fact that the appellant is unsuc-
cessful upon the new trial will not change the legal effect of his act.
(Grunberg v. Blumenlahl, 66 How. 62.) If a party seeks by appeal
to reverse the order of the court, he must, in case he succeeds, leave
the adverse party in the saine position that he oceupied when the
order appealed from was made ; and if by any affirmative act of his
the position of the adverse party has been changed, he cannot insist
upon an appeal from the order previously made. (Id.)
Tue Court or APPEALS. 23

 

Organization—Terms—Jurisdiction.

 

ARTICLE II.
COURTS OR TERMS EXERCISING APPELLATE JURISDICTION.

SECTION I.
Tue Covurr or APPEALS.

Organization.—The Constitution of the State of New York
provides that there shall be a Court of Appeals, composed of a chief
judge and six associate judges, who shall be chosen by the electors
of the State, and shall hold their office for the term of fourteen
years from and including the first day of January next after their
election. Any five members of the court shall form a quorum, and
the concurrence of four shall be necessary to a decision. The court
shall have the appointment, with the power of removal, of its
reporter and clerk, and of such attendants as may be necessary.
(Const. art. 6, § 2.) The Code also provides that the Court of
Appeals may from time to time, by an order entered in its minutes,
appoint and remove its clerk, its reporter, and such attendants as it
deems necessary. (Code of Civil Pro. § 198.)

 

Terms.—The Code provides that the terms of the Court of
Appeals must be appointed to be held at such times and places as
the court thinks proper, and continued as long as the public interest
requires. (Id. § 196.)

A term of the court may be appointed to be held in a building
other than that designated by law for holding courts. A term may
be adjourned from the place where it is appointed to be held, to
another place in the same city. One or more of the judges may
adjourn a term, without day, or toa day certain. (Id. § 197.)

 

Jurisdiction.—The Court ot Appeals is strictly an appellate
tribunal (Delaney v. Brett, 51 N. Y. 78), exercising such jurisdic.
tion only as is conferred upon it by law. (Batterman v. Finn, 40
N. Y. 840; Grissler v. Fowler, 55 N. Y. 675.) The appellate juris-
diction of this court is subject to the control and regulation of the
legislature (Butterfield v. Irudde, 58 N. Y. 489; Const. art. 6, § 6),
and may at any time be increased or diminished by statute. The
Code of Civil Procedure provides generally that each of the courts
referred to in that act, “shall continue to exercise the jurisdiction
24 New Triats and APPEALS.

 

General Term of the Supreme Court.

 

and powers now vested in it by law, according to the course and
practice of the court, except as otherwise prescribed” in that act.
(Code of Civil Pro. § 4.) It also prescribes the cases in which the
Court of Appeals may review on appeal the judgments or orders of
inferior courts, what questions it may pass upon, and the manner in
which its judgments or orders must be enforced. (Id. §§ 190-194,
1324-1339.) The jurisdiction of this court will be fully discussed
in the foliowing chapter. Generally speaking, the court has
exclusive jurisdiction to review upon appeal every actual determina-
tion made at a General Term by the Supreme Court, or by either
of the Superior City Courts, subject, however, to the limitations,
exceptions and conditions contained in the sections above cited. The
Superior City Courts are coilectively the Court of Common Pleas
for the city and county of New York, the Superior Court of the city
of New York, the Superior Court of Buffalo, and the City Court of
Brooklyn. (Id. § 3348, subd. 1.) Although the Code provides
for appeals to the Court of Appeals only from the determinations of
the General Terms of the Supreme Court or of a Superior City Court
the legislature may authorize the judgments, decrees and decisions
of any court of record of original civil jurisdiction, established in
a city, to be removed for review directly into the Court of Appeals.
(Const. art. 6, § 22.) This power has not yet been exercised. But
the jurisdiction of the court is not limited to the review of deter-
minations made by courts enumerated in the Code. The legislature
has established a tribunal with judicial powers, having jurisdiction
to hear, audit and determine private claims against the State, and to
make the proper award, and has provided that where the amount in
controversy exceeds five hundred dollars, either party feeling
aggrieved by the award may appeal to the Court of Appeals, upon
questions of Jaw only, arising upon the hearing of the claim or upon
the excess or insufficiency of the award. (Laws of 1883, chap. 205 ;
Laws of 1884, chap. 85: Td. chap. 329.)

SECTION II.

GenreraL Trrm or THE Supreme Court.

Organization.— lor the purpose of organizing General Terms
of the Supreme Court, the State has been divided into five judicial
departments. The first department consists of the first judicial
GrneraL Term or THE Supreme Court. 25

 

Organization—Appointment of terms.

 

district ; the second department, of the second judicial district; the
third department, of the third and fourth judicial districts; the
fourth department, of the fifth and sixth judicial districts; and the
fifth department, of the seventh and eighth judicial districts. In each
of these judicial departments there is a General Term of the
Supreme Court, composed of a presiding justice and not less than two
nor more than three associate justices, who have been selected from
the whole bench of justices for that purpose in the manner pre-
scribed by law. (Laws of 1883, chap. 829; Code of Civil Pro.
§§ 219-221.) The justices so designated are styled in the Code,
general term justices. (Id. § 219.)

If a presiding justice is not present at the time and place
appointed for holding a General Term, the associate justice present
having the shortest term to serve, or if two are present having the
same time to serve, the elder of them must act as presiding justice
until a presiding justice attends. If only one General Term justice
is present, he may select one or two justices of the Supreme Conrt
to hold with him the General Term until two General Term justices
attend. If only two General Term justices are present, they may
select a justice of the Supreme Court to hold General Term with
them. (Id. § 228.)

A General Term may be held by two justices; and the concur-
rence of two justices is necessary to pronounce a decision. If two
do not concur, a re-argument must be ordered. (Id. § 230. See
latter of Kings Co. Elevated R. 2. Co., 73 N. Y. 383.)

The General Term is attended by the sheriff of the county in
which it is held, his under-sheriff, or one of his deputies; by a crier
for courts within the county, and by the county clerk or his deputy,
or special deputy ; all of whom must act under the direction of the
court or of the presiding justice. (Code of Civ. Pro. § 242.) The
Supreme Court in a district or department, is one court, whether
sitting in General Terin or in Special Term ; and the clerks and their
offices, and the records thereof, are the clerks, offices, and records
of the General Terms as well as of the Special Terms. (Salmon v.
Gedney, 75 N. Y. 479.) .

Appointment of terms.—The General Term justices in each
judicial department, or the majority of them, on or before the first
day of December of years bearing even date, appoint the times and
places for holding General Terms within their judicial department
26 New Triaus AnD APPEALs.

 

From what courts or terms an appeal lies.

 

for two years from the first day of January then next following, and
file the appointment with the Secretary of State, who thereupon
publishes « copy of the notice in a newspaper printed at Albany.
At least one General Term in cach year must be appointed to be
held in each of the judicial districts composing the department
(Code of Civ. Pro. §§ 225-227), and the Governor may appoint as
many extraordinary General Terms as he deems the public interest
requires. (Id. § 234.)

From what courts or terms an appeal lies.—The General
Term of the Supreme Court is an appellate tribunal clothed with
power to review the errors of inferior tribunals and of the Supreme
Court at the Circuit or Special Term. An appeal lies to it from a
final judgment rendered in the same court upon a trial by a jury,
by a referee or by the court without a jury (Code of Civil Pro.
§ 1846), or from an interlocutory judgment rendered at the Circuit
or Special Term of the same court. (Id. § 1349.) It also reviews
orders made in an action, upon notice, at the Circuit, or at a Special
Term of the same court (Id. § 1847), and orders made in an
action, upon notice, by a judge out of court. (Id. § 1348.) An
appeal may also be taken to it from an order affecting a substantial
right made in a special proceeding, at the Circuit, or at a Special
Term of the same court, or made by a judge of the same court in a
special proceeding instituted before him pursuant to a special statu-
tory provision, or instituted before another judge and transferred to
or continued before him. (Id. § 1356.)

An appeal may also be taken to the Supreme Court at General
Term from a final judgment rendered by a County Court, or by any
other conrt of record, possessing original jnrisdiction, where an
appeal therefrom, to a court other than the Supreme Court, is not
expressly given by statute. (Id. § 1840.) An appeal may also be
taken to the Supreme Court from an order affecting a substantial
right made by the court or a judge in an action brought in, or taken
by appeal to, a court specified in the section of the Code last cited.
(Id. § 1842.) Soan appeal may be taken to the Supreme Court
from an order affecting a substantial right made by acourt of record,
possessing original jurisdiction, or a judge thercof, in a special pro-
ceeding instituted in that court, or before a judge thereof, pursuant
to aspecial statutory provision, or instituted before another judge
and transferred to or continued before the judge who imade the final
GENERAL 'TrrM or THE SupREME Court. 27

 

From what courts or terms an appeal lies.

 

order, unless an appeal froin the order is expressly given by statute
to acourt other than the Supreme Court. (Id. § 1857.) —

An appeal lies to the General Term of the Supreme Court from
a judgment rendered or entered in the City Court of Yonkers in
an action where a recovery of one hundred dollars or more was
demanded in the complaint, and from orders made in such
actions in the City Court of Yonkers, or by the city judge of
Yonkers, of the effect described in seétion 1347 of the Code of
Civil Procedure, and from an order affecting a substantial right
made in a special proceeding by the City Court or city judge.
From judgments in actions where a recovery of less than one hun-
dred dollars was demanded in the complaint, and from orders made
in such actions in the City Court of Yonkers, of the effect described
in the subdivisions of section 1347 of the Code of Civil Procedure,
and from final orders made by the city judge in summary proceed-
ings, the appeal must be taken to the County Court of Westchester
county. (Laws of 1878, chap. 186, § 56; as amended by Laws of
1881, chap. 437, § 12. See dlitchel v. Pike, 17 Hun, 142.) An
appeal lies to the Supreme Court from a decree of the Surrogate’s
Court, or from an order affecting a substantial right made by a sur-
rogate, or by a Surrogate’s Court in a special proceeding pending in
that court, or after a decree in such special proceeding. (Code of
Civil Pro. § 2570.)

An appeal may be taken to the Supreme Court at either Special
or General Term from the report and appraisal of commissioners of
appraisement in railroad cases (Laws of 1850, chap. 140, §18; Laws
of 1876, chap. 198), and an appeal may be taken from the deter-
mination of commissioners, appointed to examine the proposed route
of a railroad, to a General Term of the Supreme Court held in the
judicial district embracing any of the land affected. (Laws of 1850,
chap. 140, § 22; Laws of 1871, chap. 560.) An appeal also lies
to the General Term from a determination made at Special Term of
of the Supreme Court by a judge of that court, granting or refusing
to grant an order directing commissioners of highways to build or
repair a bridge across a stream dividing towns or counties. (Laws
of 1857, chap. 639, § 5.) The jurisdiction of the General Term of
of the Supreme Court on appeals taken thereto, will be fully dis-
cussed elsewhere.
28 New Triats anp APPEALS.

 

Organization—From what courts or terms an appeal lies.

 

SECTION III.

GENERAL Terms or Superior Orry Courts.

 

Organization.—The Superior Court of the city of New York,
and the Court of Common Pleas of the city and county of New
York, are each composed of six judges; and the Superior Court of
Buffalo and the City Court of Brooklyn are each composed of three
judges. (Const. art. 6, § 12; Code of Civil Pro. §§ 287, 295, 307.)
A chief judge is appointed by the judges of each of these courts
from one of their number, who acts as such during his official term.
(Id.) Each Superior City Court has its clerk, appointed by the
judges of the court or the majority of them; and each clerk has his
deputy clerk, appointed by him, and removable at his pleasure. (Id.
§ 284.) The law provides also for the appointment of special deputy
clerks (Id. §§ 285, 288, 299, 309), for the appointment of criers
(Id. §§ 291, 301), and for the attendance of the sheriff and other
officers at the several terms of court. (Id. § 302, 311; Laws of 1879,
chap. 414.)

The judges of each Superior City Court, or a majority of them,
from time to time appoint the times for holding General Terms of
their court, and assign the judges to hold the same. (Code of Civil
Pro. § 280.) A General Term of a Superior City Court must be
held by at least two judges. Two must coneur to determine a cause ;
otherwise it must be reheard, except that if the remaining judge or
judges are disqualified to sit npon an appeal, the judgment or order
appealed from must be affirmed, unless a rehearing is directed. (Id.
§ 281.) The times and places of holding courts in the city of New
York are published daily in the City Record. (Laws of 1882, vol. 2,
chap. 410, § 68.)

 

From what courts or terms an appeal lies.—The General
Term of each of the Superior City Courts has jurisdiction to review
on appeal a final judgment rendered by the same court upon a ver-
dict of a jury or upon a trial by a referee, or by the court without
a jury. (Code of Civil Pro. § 1346.) It has also jurisdiction to
review an interlocutory judgment rendered at a Special or Trial Term
of the same court (Id. § 1849), and in the cases prescribed by the
statute, to review an order made in an action, upon notice, at a
GENERAL Term or THE Crry Court or New York. 29

 

Organization.

 

Special or Trial Term of the same court (Id. § 1347), or, by a judge
out of court (Id. § 1848), or an order affecting a substantial right
made in a special proceeding at a Special Term or Trial Term of the
same court, or made by a judge of the same court in a special pro-
ceeding instituted before him pursuant to a special statutory provi-
sion or instituted before another judge and transferred to or con-
tinued before him. (Id. § 1356.)

An appeal lies to the General Term of the Court of Common
Pleas from actual determinations made by the General Term of the
City Court of New York, formerly the Marine Court, in the cases
prescribed by the statute. (Code of Civil Pro. § 3191; Laws of
1882, vol. 2, chap. 410, § 1269.) So an appeal may be taken to the
Court of Common Pleas from a judgment rendered in a District
Court of the city of New York, in the cases and in the manner pre-
scribed in articles first and second of title eight of chapter nine-
teenth of the Code of Civil Procedure, with respect to an appeal to
a County Court from a judgment rendered by a justice of the peace.
(Code of Civil Pro. § 8213 ; Laws of 1882, vol. 2, chap. 410, § 1438.)

An appeal from a judgment obtained in the Municipal Court of
Buffalo may be taken to the Superior Court of Buffalo in the same
cases, and in the same manner, and with like effect as appeals are
now had by law from judgments obtained in justices’ courts. (Laws
of 1880, chap. 344, § 6.)

SECTION IV.
GrneraL Term or THE Crry Court or New York.

Organization.—The City Court of New York consists of six
justices, one of whom is the chief justice of the court. (Code of
Civ. Pro. § 820; Laws of 1882, vol. 2, chap. 410, § 1215.) The court
has a clerk, three deputy clerks, and not more than ten assistants,
any of whom may be designated as special deputy clerks (Code of
Civil Pro. §§ 328, 330), and the usual attendants. (Id. § 335.)
The justices of the court, or a majority of them, appoint the times
of holding General Terms of the court, and assign the justices to
hold the same. Each General Term must be held by at least two
justices, and the concurrence of two justices is necessary to a decis-
ion. If two do not concur, a re-argument must be ordered. The
justices holding a General Term may order re-argument before them-

 
30 New Triars anp APPEALs,

 

Appellate jurisdiction—Terms and appellate jurisdiction.

 

selves, or at asubsequent General Term, of a cause heard by them,
or ata previous General Term. (Code of Civil Pro. § 324; Laws of
1882, vol. 2, chap. 410, § 1219.) The General Terms of this court
are ordinarily held at the City Hall (Id. § 1220), and the chief jus-
tice, if present and not disqualified, presides. (Id. § 1217.)

 

Appellate jurisdiction.—An appeal to the General Term of
the court may be taken from a final judgment rendered therein in a
case where an appeal may be taken to the General Term of the
Supreme Court from a final judgment rendered therein, as prescribed
in section 1346 of the Code of Civil Procedure. (Code of Civil
Pro. § 3188.) An appeal to the General Term of the court may
also be taken from an interlocutory judgment rendered, or an order
made at a Special or Trial Term thereof, or an order made by a justice
thereof, out of court, in a case where an appeal may be taken to the
General Term of the Supreme Court from an interlocutory judg-
ment rendered, or an order made in like manner, as prescribed in
sectioris 1347, 1848 and 1349 of the Code of Civil Procedure. (Id.
§ 3189.)

SECTION Y.

County Courts.

 

Terms and appellate jurisdiction.—A County Court is held
by the county judge of the county, and is attended by the county
elerk, erier, sheriff, and such constables as are designated for that
purpose. This court has no General Term, in the sense in which
those words are generally understood; and therefore the Code
declares that each provision of that act conferring power upon or
authorizing a proceeding to be taken at a General, Special or Trial
Term, which is applicable to a County Court, is to be construed as
applying to any term of the County Court held pursuant to an appoint-
ment made as prescribed by law. (Code of Civil Pro. § 3342.)

The county judge appoints the times and places for holding
terms of his court. Each term must be held at the place desig-
nated Ly the statute for that purpose ; except that the county judge
may from time to time adjourn a term to any place within the
county for the hearing and decision of motions and appeals, and tri-
a'sand other proceedings without a jury ; and may appoint as many
Parties to APPEALS. 31

 

Party aggrieved,

 

terms as he thinks proper to be held, either at the court-house or
elsewhere in the county, for the same purpose. (Id. § 355.)

An appeal lies toa county court from a judgment rendered by a
justice ot the peace (Id. §§ 3044, 3045), or from a final order made
by a justice of the peace in 2 summary proceeding to recover pos-
session of real property (Id. § 2260), or from orders made by a jus-
tice of the peace ina special proceeding relating to an animal
straying upon the highway (Id. §§ 3102, 3104), or from a judgment ,
rendered in the Justice’s Court of the city of Troy (Id. § 3213), or
in the City Court of Albany (Id. § 3213; Laws of 1884, chap. 122,
§ 7), or in the City Court of the city of Auburn (Laws of 1879,
chap. 53, § 66), or in the Municipal Court of the city of Rochester.
(Laws of 1880, chap. 14, § 246.) An appeal lies to the County
Court of Westchester county from judgments of the City Court of
Yonkers, when rendered in actions where a recovery of less than one
hundred dollars was demanded in the complaint, and from orders
made in such actions in the City Court of Yonkers, or by the city
judge of Yonkers, of the effect described in the subdivisions of sec-
tion 1347 of the Code of Civil Procedure. (Laws of 1878, chap.
186, § 56; Laws of 1881, chap. 437, § 12. See Ante, p. 27.)

The proceedings, practice, and pleadings, of the City Court of
Utica, including appeals, are governed in all civil matters by the
provisions of the Code of Civil Procedure relating to justices’
courts. (Laws of 1882, chap. 103, § 6.)

ARTICLE III.

PARTIES TO APPEALS,

SECTION IL
By wom an AppraL MAY BE TAKEN.

Party aggrieved.—A party aggrieved may appeal, in a case
prescribed in chapter twelve of the Code, except where the judg-
ment or order of which he complains was rendered or made upon
his default. (Code of Civil Pro. § 1294.) But the section cited
must be construed as designating the proper party, and not as saving
any rights lost by waiver, laches, irregularity in proceeding, and the
32 New Triats anp APPEALS.

 

Party aggrieved.

 

like. Soany party aggrieved may appeal froin a decree or an order
of a Surrogate’s Court, in a case prescribed in article fourth of chap-
ter eighteen of the Code, except where the decree or order of which
he complains was rendered or made upon his default. (Id. § 2568.)
Any party aggrieved by a judgment rendered by a justice of the’
peace, may appeal therefrom. (Id. § 3045.)

A party seeking to reverse a judgment must in some way be
injured by it; and a party is not aggrieved by a judgment in his
favor, although error has been committed, unless such error was to
his disadvantage. (Hughes v. Stickney, 13 Wend. 280.) A party
who has released all his interest in a suit has no further right to appeal
from an order or decree made therein, as he is not aggrieved,
although it may be erroneous as to other parties. (Steele v. White,
2 Paige, 478; Helly v. Israel, 11 Paige, 147; Hackley v. Hupe, 4
Keyes, 123; Kiefer v. Winkens, 29 How. 176; see Bush v. Roch-
ester City Bank, 48 N. Y. 659.) Although a party may have had
an interest when the action was commenced, if such interest is ter-
minated in any way during its progress, his right further to inter-
fere in the litigation is at an end; and although a party is aggrieved
by one branch of a decree, he does not thereby acquire a right to
call in question another portion of the decree having no bearing or
effect upon his rights and interests. (ldley v. Bowen, 11 Wend.
227; Reid v. Vanderheyden, 5 Cow. 719.) A third person who
has been ordered to deliver over property in his hands belonging to
one against whom an attachment has issued, and who has complied
with the order, is not aggrieved by it, save only so far as it imposes
costs upon him (Hall v. Brooks, 89 N. Y. 33), and a judgment
debtor is not aggrieved by an order, based upon the examination of
a third person in proceedings supplementary to execution, directing
such third person to pay to the plaintiff money belonging to the
judgment debtor. (See Soster v. Prince, 8 Abb. 407.) So an
executor, who has neither paid nor become diable to pay a claim
against the estate he represents, has no interest entitling him to
appeal from an order refusing to allow the claim. (Zellett v. Lath-
bun, 4 Paige, 102.)

A want of legal interest in the determination from which an
appeal is taken may furnish a sufficient ground for a motion to dis-
miss the appeal (see People v. Lynch, 54 N. Y. 681), but if no
objection is taken the appeal will be entertained upon the merits.
( White v. Pomeroy, 7 Barb. 640, 643.)
By wHom an APPEAL MAY BE TAKEN. 33

 

Who are deemed parties for the purpose of appeal.

 

Pending a discharge, a bankrupt has sufficient interest to appeal
from a judgment upon a claiin against him, where lis assignee does
not seek to intervene and be substituted. (Sanford v. Sanford, 58
N. Y. 67.) A trustee of a fund for the security of an indebtedness
to others, who as such is plaintiff in an action to enforce such indebt-
edness, may appeal from a judgment which reduces and limits the
number of those who are creditors upon the fund. He is not
aggrieved when an unreal or unfounded claim has been defeated by
the judgment, but he is aggrieved when a real claim is not added
into the amount adjudged to be due, and a real claimant is shut out

“by the judgment from a share in the proceeds of it. (Bockes v.
Tathorn, 73. N. Y. 222. But see Hubbard v. Hames, 22 Barb. 597,
604.) A wife, by virtue of her inchoate right of dower in lands
owned by her husband during coverture, has a sufficient interest
to entitle her to appeal from a judgment for the foreclosure of a
mortgage thereon, although her husband has conveyed all his inter-
est in the mortgaged premises to an assignee in bankruptcy.
(Kiefer v. Winkens, 39 How. 176.)

Under the Revised Statutes it was held that the parties to a pro-
ceeding in a Surrogate’s Court to have a will and codicil adinitted to
probate might appeal from the portion of the decree rendered
therein adinitting the codicil to probate, although, if the will should
stand, they would neither take nor lose by the codicil, and their
interests would be unaffected by the affirmance or reversal of this
part of the decision of the surrogate. (See Parish v. Parish, 42
Barb. 274.) So it was held that a devisee or legatee named in a
will might appeal from a decree admitting a will to probate,
although he was a petitioner for its probate. (Vandemark v.
Vandemark, 26 Barb. 416.) But it is at least questionable whether
these decisions can be cited as authority under the present statute
giving the right to appeal to an aggrieved party. (See Redfield’s
Surrogate’s Practice, p. 803.) The Code gives a person not a
party a right to appeal in certain cases, as will be noticed hereafter.

Who are deemed parties for the purpose of appeal.—lIt has
been held that only those technically parties of record, or their
representatives, can appeal (Martin v. Hanowse, 2 Abb. 390), and
that as a general rule, a stranger to the record cannot appeal from a
judgment. (O Brien v. Browning, 49 Wow. 109, 113.) One who

has no right to intervene in an action, or to become a party thereto,
3
34 New Triats anp APPEALS.

 

Appeal by one of several parties,

 

has no right to appeal from any decision made in the cause so as to
bring the merits thereof before the court for examination. (Z. B.
v. £. (. B., 28 Barb. 299, 305.)

But it dves not follow that no one can appeal from an order
made in an action unless he be a party to the action. Every one
who ean properly be called a party to an order and who is aggrieved
thereby, may appeal from the order, though not a party to the
action. (Hobart v. Hobart, 86 N. Y. 636.) Under this view of the
law, the courts eutertain appeals by purchasers at judicial sales, by
attorneys, by sheriffs, and by other persons. (Id.) Thus, an attorney
may appeal from an order denying him his fees (Louden v. Louden, ©
65 How. 411; McKenzie v. Rhodes, 18 Abb. 337); or a referee
appointed to sell lands in partition may appeal from an order depriv-
ing him of his legal fees (Hobart v. Hobart, 86 N. Y. 636); or
policy-holders who have been allowed to intervene in a proceeding
for the appointment of a receiver of a life insurance company may
appeal from an order confirming the report of an actuary (Attorney-
General v. North American Life Ins. Co., 77 N.Y. 297; 6 Abb.
N. C. 293); or, a creditor who has appeared before a referee in a
ereditor’s action and proved his claim, may appeal from an order
refusing to open a judgment entered without notice to him (Anony-
mous, 18 Abb. 87); or, in a proper case, a surety in an undertaking
given on procuring an injunetion may appeal from an order confirm-
ing the report of a referee as to the damages sustained by the defend-
ant by reason of the injunction (Hotchkiss v. Platt, 7 Hun, 56;
66 N. Y. 620), although not a party to the action. But in all these
cases the appellant was in some sense a party to the proceeding
sought to be reviewed, and had an interest in its determination. A
mere stranger to a proceeding has no status in court to apply for
relief therein, or to appeal froin the order denying it. (Zracy v.
First Nat. Bank of Selma, 37 N.Y. 523, 525; Matter of Bristol,
16 Abb. 397; People v. Lynch, 54 N.Y. 681.) And a party brought
in by amendment after the commencement of an action has no right
to appeal from an order made before he became a party. (rant v.
Hubbell, 2 Jones & Sp. 224.)

Appeal by one of several parties——Where judgment has
been rendered against two cr more defendants in a case where a
several judgment against either would be proper, either of such
defendants may appeal from the judgment if he is aggrieved
By wuom an APPIAL MAY BE TAKEN. 85

 

Appeal by a person not a party.

 

thereby, whether his co-defendants join with him in the appeal or
not. (See Mattison v. Jones, 9 How. 152; Williams v. Western
Union Telegraph Co., 93 N. Y. 162,194; Geraud v. Stagg, 10
How. 369; Honegger v. Wettstein, 15 Jones & Sp. 125.) Whether
the rule would be the same if the judgment ‘had been rendered upon
a joint liability, does not seem to be so clear. (See Wéallcams v.
Western Union Telegraph Co., 93 N. Y. 162, 194; Bockes v.
Llathorn, 78 N. Y. 222, 226; Simpson v. Greeley, 20 Wall. 152.)

Where one of several trustees has sued alone, making his
co-trustees defendants because of their refusal to join with him as
plaintiffs, he may appeal from the judgment rendered in the action
without the consent of his co-trustees. (Bockes v. Hathorn, 78
N. Y. 222.) But one of two defendants, sned jointly for a tort,
cannot appeal from a decision of the trial court dismissing the com-
plaint as to his co-defendant. (Popham v. Twenty-third St. I. R.
Co., 16 Jones & Sp. 229.)

Appeal by a person not a party.—A person aggrieved, who
is not a party, but is entitled by law to be substituted in place of a
party ; or who has acquired, since the making of the order, or the
rendering of the judgment appealed from, an interest which would
have entitled him to be so substituted, if it had been previously
acquired, may appeal as prescribed in chapter twelve of the Code of
Civil Procedure for an appeal by a party; but the appeal cannot
be heard until he has been substituted in place of the party; and if he
unreasonably neglects to procure an order of substitution, the appeal
may be dismissed npon motion of the respondent. (Code of Civil Pro.
§ 1296.). This provision of the Code is made applicable to appeals to
the General Term of the City Court of New York (Id. § 3190), and
to appeals to the General Term of the Court of Common Pleas
from a determination of the General Term of the City Court of
New York. (Id. § 8192.) It does not apply to appeals to the Com-
mon Pleas from judgments rendered by a District Court (See Id.
§ 3213), nor to appeals to a County Court from an inferior court
(See Id. §§ 3044, 3045), nor to an appeal to the Superior Court of
Buffalo from a judgment of the Municipal Court (Id.), as in these
cases the Code authorizes an appeal by a party only.

The general provision above cited was intended to apply only to
those persons who upon the record have no apparent connection
with the case. It does not apply to the class of persons already

 
36 New Triars AnD APPEALS.

 

Appeal by a person not a party.

 

noticed, who, though not parties to the action, are so far parties to an
order made therein as to entitle them to appeal therefrom. ' (Hobart
v. Hobart, 23 Hun, 484, 485.)

The Code recognizes the possibility of a transfer of interest
during the pendency of an action, either by act of the party or
operation of law, and authorizes the substitution of the trans-
feree in the place of the party whose interest has been thus trans-
ferred (see Code of Civil Pro. §§ 756-766, 1522, 1523); and also
authorizes a transfer of an interest after it has been merged in a
judgment. (Id. § 1912.) The person thus entitled to be substituted
may appeal, and afterward procure substitution. ‘Thus a receiver
of an insolvent national bank may appeal from a judgment recovered
against the bank (see Claflin v. Harmers’ & Citizens’ Bank, 54
Barb. 228), though under the former practice it was held that he
must obtain an order of substitution before appealing. (Zracy v.
First National Bank of Selma, 37 N. Y. 528).

An appeal from an order or decree of a surrogate by a person
not a party to the proceeding in which it was made or rendered, is
expressly authorized by the Code. It provides that “a creditor
of or person interested in, the estate or fund affected by the decree
or order, who was not a party to the special proceeding, but was
entitled by law to be heard therein upon his application; or who has
acquired since the decree or order was made a right or interest
which would have entitled him to be heard if it had been previously
acquired, may intervene and appeal as prescribed in this article. The
facts which entitle such person to appeal, must be shown by an
affidavit, which must be filed, aud a copy thereof served with the
notice of appeal.” (Code of Civil Pro. § 2569.) A “ person inter-
ested” within the meaning of this provision, includes every person
entitled either absolutely or contingently, to share in the estate or
the proceeds thereof, or in the fund, as husband, wife, legatee, next
of kin, heir, devisee, assignee, grantee or otherwise, except asa cred-
itor. (Id. § 2514, subd. 11.) The Code specifies the persons or
classes of persons who must be cited to appear in a_ proceeding
for the probate of a will (Id. § 2615), or upon a proceeding for the
probate of heirship (Id. §$§ 2654, 2655), or in a proceeding to
obtain letters of administration (Id. $§ 2662, 2663), or in a proceeding
to obtain ancillary letters testamentary, or ancillary letters of
administration (Id. § 2698), or in a proceeding for an account-
ing by an exccutor or adininistrator (Id. 2726, 2728, 2729), or
By wom an APPEAL MAY BE TAKEN. 37

 

Appeal after death of adverse party.

 

in a proceeding for the disposition of the real property of a
decedent for the payment of his debts and funeral expenses (Id.
§ 2754), and also specifies the persons, or classes of persons, who,
though not cited, may nevertheless appear and become parties
to the proceeding. (Id. §§ 2617, 2655, 2665, 2698, 2731, 2755.)
Any person not cited to appear upon the hearing of such proceed-
ing, and who, though entitled to appear and be heard, under some
one of the sections last cited, did notavail himself of his privilege,
may nevertheless appeal from an order or decree made or rendered
in such proceeding under the authority of section 2569 of the Code ;
and any person, who since the decree or order was made or rend-
ered, has acquired a right or interest which wonld have entitled
him to be heard if it had previously been acquired, has the same
right.

The provisions of the Code giving the right to persons not cited
to appear and become parties to proceedings in a surrogate’s court,
though new in the sense of conferring a statutory right, are in most
instances merely statements of the law as previously declared by the
courts (see Lafferty v. Lafferty, 5 Redf. 326; Bogardus v. Clark, 4
Paige, 6238, 626; Booth v. Kitchen, 7 Hun, 260); and it was held
before the enactment of section 2569 of the Code, that a legatce or
devisee named in a will, though not a party to the probate proceed-
ings, could appeal from a decree of the surrogate refusing probate,
without first obtaining leave of the court (Lewis v. Jones, 50
Barb. 645, 673. See Marvin v. Marvin, 11 Abb. N.S. 97); and
that a purchaser at an administrator’s sale of real estate, who had
complied with the terms of sale might appeal from an order of the
surrogate vacating the sale. (Delaplaine v. Lawrence, 10 Paige,

602; S. C3 .N. Y. 301.)

Appeal after death of adverse party.—-Where the adverse
party has died since the making of the order or the rendering of
the judgment appealed from, or where the judgment appealed
from was rendered after his death in a case prescribed by law (See
Code of Civil Pro. §§ 763-766), an appeal may be taken as if he
was living, but it cannot be heard, until the heir, devisee, executor
or administrator, as the case requires, has been substituted as the
respondent. (Id. § 1297. See Matter of Beckwith, 87 N. Y. 503;
90 N. Y. 667.)
38 New Trias anp APppEAts.

 

Title of the cause and designation of the parties on appeal.

 

 

Appeals in forma pauperis.—An order allowing a person to
sue or defend asa poor person does not authorize him to take or
maintain an appeal as a poor person; but when an appeal is taken
by the adverse party, the order is applicable in favor of the
petitioner as respondent in the appeal. (Code of Civil Pro. § 466.)
The rule was the same before the enactment of the present Code.
(See Ostrander v. Harper, 14 How. 16.)

Title of the cause and designation of the parties on appeal.
—The party or person appealing is designated as the appellant, and
the adverse party as the respondent. After au appeal has been taken
to another court, the name of the appellate court must be substituted
for that of the court below, in the title of the action or special pro-
ceeding, and in any case, the name of the county if it is mentioned
may be omitted; otherwise the title shall not be changed in conse-
quence of the appeal. (Code of Civil Pro. § 1295. See Willey v.
Shaver, 1 N. Y. Sup. Ct. [T. & C.] 324-328.)

Where the appellant is not a party to the order, judgment or
decree from which the appeal is taken, he may nevertheless appeal
in the name of the party of record (See Ward v. Jeynolds, 25
Hun, 385), and after procuring an order of substitution, may con-
tinue the appeal in his own name. But if a person entitled to be
substituted in place of a party brings an appeal in his own name, the
error, if any, may be cured at any time by amendment, and furnishes
no ground for a motion to dismiss the appeal. (McLachlin v. Brett,
27 Hun, 18.) Where an appeal is taken from an order by a person
not a party to the action, and not entitled to be substituted therein,
but so far a party to the order as to be entitled to appeal therefrom
(See ante, p. 34), as where a referee in partition appeals from an order
depriving him of his legal fees, it seems to be the proper practice
to designate both plaintiff and defendant as respondents, and the
person appealing as appellant, in entitling the papers on appeal.
(See Hobart v. Hobart, 86 N. Y. 636.)
WHo sHOULD BE MADE Parties To AN APPEAL. 89

 

On appeal from Surrogate’s Court.

 

SECTION II.
Wao SxHovutp se Maver Partizs ro THE APPEAL.

Although the title to an action remains substantially the same
after the appeal is taken, the parties to the appeal are really the
appellants, and those parties to the action, whether plaintiff or
defendant, who have an interest in sustaining the judgment or order
appealed from (ZHiscock v. Phelps, 6 Lans. 105; Cotes v. Carroll,
28 How. 436); and a party to an order appealed from who has an
interest adverse to the reversal of the order is a necessary party to
the appeal, although he is not a party of record. (Barnes v.
Stoughton, 6 Hun, 254.) On the other hand, a person may bea
party to the action, and as such may be named in the title of the
papers on appeal, and yet may not be an “adverse party” within
the meaning of the Code so as to entitle him to service of the notice
of appeal. Thus, an assignee of a portion of a mortgage who has
been made a party defendant in an action to foreclose it, who has
served no answer on and made no claim against a co-defendant, is
not an adverse party as to such defendant so as to require the service
of the notice of appeal upon him. (Pickersgill v. Read, 7 Hun,
636.) The persons to be served with a notice of appeal will be con-
sidered elsewhere.

On appeal from Surrogate’s Court.—The Code provides that
“Each party to the special proceeding in the Surrogate’s Court, and
each person not a party, who has or claims to have, in the subject
matter of the decrec or order, a right or interest, which is directly
affected thereby, and which appears upon the face of the papers pre-
sented in the Surrogate’s Court, or has become manifest in the course
of the proceedings taken therein, must be made a party to the appeal.
A person not a party, but who must be made a party as prescribed
in this section, may be brought in by an order of the appellate court
made after the appeal is taken; or the appeal may be dismissed on
account of his absence. The appellate court may prescribe the mode
of bringing in such a person, by publication, by personal service, or
otherwise. But this section does not require a person interested, but
not a party, to be brought in, if he was legally represented, or was
duly cited, in the court below.” (Code of Civil Pro. § 2578.)
40 New Trrats anp APPEALS.

 

Parties to appeals from Surrogates’ Courts.

 

All persons to whom sums are awarded by the surrogate, and
who are therefore interested in sustaining the decree, should be
made respondents to the appeal, although they are not parties of
record. (Gdlchrist v. Lea, 9 Paige, 66; Matter of Thompson,
11 Paige, 453; Jauncey v. Rutherford, 9 Paige, 273; Weleow v.
Smith, 26 Barb. 316.) Where a surrogate has made an order in pro-
cecdings for the probate of a will directing the payment of an allow-
ance, in lieu of costs, to the counsel for the contestants, snch counsel
are proper parties to an appeal taken by the executor from the order.
(Peck v. Peck, 23 Hun, 312. See Gilman v. Gilman, 3 Lun, 22,
25.) The heirs at law, next of kin, and legatees of a testator, in
addition to the executors, are necessary parties to an appeal from an
order admitting a will to probate, if interested in sustaining the
order, or any portion thereof. (Gilman v. Gilman, 35 Barb. 591.)
Heirs at law of a decedent, who were parties to a proceeding before
a surrogate for the sale of the decedent’s Jands for the payment of
his debts, who contested claims, and are interested in the disposition
of the proceeds of the sale, are necessary parties to an appeal by a
creditor from the order of the surrogate as to the allowance of his
claim. (Patterson v. Hamilton, 26 Hun, 665.) On an appeal from
an order appointing a guardian, it is proper, thongh not absolutely
necessary, to make the infant a party with the guardian. (Under-
hill v. Dennis, 9 Paige, 202.) The same rule applies to an appeal
from an order refusing to appoint a guardian. (ellinger v. Joe,
7 Paige, 362.)

On an appeal by a creditor from an order of the surrogate in
proceedings for the sale of the real estate of a decedent for the
payment of his debts, the appellate court cannot reverse the order
appealed from if the heirs of the deccdent have not been made
parties to the appeal, even though it is evident to the appellate
conrt that the surrogate erred as to the rights of the parties. (See
Patierson v. Hamilton, 26 Hun, 685; see also Brown v. Evans, 34
Barb. 594.) Nor can the appellate court give relief by permitting
the appellant to bring in necessary parties, who were parties to the
procecding in the court below, if the time within which to appeal
has expired. (Patterson v. Hamilton, 26 Hun, 665. See Cotes v.
Carroll, 28 How. 436.) It sceins that an interested party may apply
to the appellate court to be made a respondent, although the time
within which he might have taken an appeal has expired (Cow
v. Schermerhorn, 12 Hun, 411. See Matter of Dun, 1 Dem. 294.)
PROCEEDINGS TO BRING IN OR SUBSTITUTE Parriss. 41

 

Proceedings to bring in or substitute parties.

 

SECTION III.
PROCEEDINGS TO BRING IN oR suBSTITUTE Parties.

Where a person, not a party, has taken an appeal in a case author-
ized by section 1296 of the Code (Ante, p. 35), he must procure
an order substituting him in the place of the party whose right
or interest he has acquired, before his appeal can be heard, and if he
unreasonably neglects to procure the order, his appeal may be dis-
missed upon the motion of the respondent. (Code of Civil Pro.
§ 1296.) So where a party appeals after the death of the adverse
party (see ante, p. 37), he must procure the substitution of the
heir, devisee, executor, or administrator, as the case requires, as
respondent, before his appeal can be heard. (Code of Civ. Pro.
§§ 1297, 2575.) And when cither party dies before the appeal is
heard, an order must be obtained substituting the proper person in
the place of the deceased party, or the adverse party may obtain an
affirmance or reversal of the judgment or order appealed from, or a
dismissal of the appeal, as the case requires, on a proper applica-
tion to the court. (Id. §§ 1298, 2575.) A person not a party to a
special proceeding in a Surrogate’s Court, but who must be made a
party to an appeal from a decree or order made therein, must be
brought in by an order of the appellate court, or the appeal may be
dismissed on account of his absence. (Id. § 2573.)

Where the appeal is from one court to another, an application
for an order of substitution must be madeto the appellate court.
(Id. §§ 1299, 2575. See - Matter of Dun, 1 Dem. 294.) Where
personal service of notice of application for an order has been made
within the State, upon the proper representatives of the decedent,
an order for substitution may be made upon the application of the
surviving party. (Code of Civil Pro. § 1299.) The personal repre-
sentatives of a deceased sole defendant, who died pending an appeal
from a judgment in his favor, may move for and obtain an order
of substitution. (Schuchardt v. Remiers, 28 How. 514.)

When an appeal has been taken from an order or decree of a
surrogate, and it is necessary to bring in a person not a party, the
application for an order to that effect must be made to the appel-
late court. (Code of Civil Pro. § 2578 ; Matter of Dun, 1 Dem. 204.)
42 New Trrats anp Apprats.

 

Remedy for a failure to procure a substitution.

 

The appellate court may prescribe the mode of bringing in such a
person, by publication, by personal service or otherwise. (Code of
Civil Pro. § 2573.)

 

Remedy for a failure to procure a substitution.— Where a
person, not a party, has taken an appeal and has unreasonably
neglected to procure an order of substitution, the remedy of the
adverse party is by motion to dismiss the appeal. (Code of Civil
Pro. $1296.) The remedy is the same where a person, not a party to
a proceeding before a surrogate, is a necessary party to an appeal from
a decree or order made therein, and has not been brought in by an
order of the appellate court. (Id. § 2573.) So where either party
to an appeal has died before the hearing, and an order substituting
another person in his place has not been made within three months
after his death, the court in which the appeal is pending, may, in its
discretion, make an order requiring all persons interested in the
decedent’s estate to show cause before it why the judgment or order
appealed from should not be reversed or affirmed, or the appeal dis-
missed, as the case requires. The order must specify a day when
cause is to be shown, which must not be less than six months after
making the order; and it must designate the mode of giving notice
to the persons interested. (Id. § 1298.) This order may perhaps be
made returnable at Special Term (See Brokaw v. Brokaw, 5 Week.
Dig. 267), but it will be the safer practice to make it returnable at
General Term. (See Van Horne v. France, 32 Hun, 504, 505, n.)
Upon the return day of the order, the moving party should make
proof by affidavit that notice has been given as reqnired by the ©
order. Any person so served with the notice may appear and show
cause why the relief specified in the order should not be granted,
and may then apply for and obtain an order substituting him in
place of the decedent, npon such terms as may be just (Id.); or the
court, upon the return day of the order, or at a subsequent day
appointed by the court, if the proper person has not been substituted,
and proof is made of service of notice as required by the order, may
reverse or affirm the judgment or order appealed from, or make
such further order in the premises as justice requires. (Code of

Civil Pro. § 1298.)
PRELIMINARIES TO AN APPEAL. 43

 

Compelling the entry of judgment.

 

ARTICLE IV.

PRELIMINARIES TO AN APPEAL,

SECTION I
ComPrLtingc THE Entry or J UDGMENT.

No appeal can be taken froma judgment until it has been
entered and the judgment-roll filed. (McMahon v. Harrison, 5
How. 360.) An appeal taken before such entry and filing will be
premature, and may be dismissed on motion. (Id.) A judgment
entered upon the direction of the court upon the trial of an issue
of fact cannot be reviewed unless a decision is- signed and filed
determining the issues of fact and of law. If an appeal is taken
from a judgment entered without such decision, it will be dismissed,
as the judgment, being irregular, cannot be affirmed. (Benjamin
v. Allen, 7 Civ. Pro. R. 202.) Ordinarily, a party entitled to enter
judgment is prompt to avail himself of the right; and the efforts of
the adverse party are mainly directed to procuring a stay pending
an appeal. Butif the successful party refuses to enter the judgment
or is guilty of unreasonable delay, and thereby prevents the adverse
party from taking an appeal, the latter may obtain relief by procur-
ing an order of the trial court directing the successful party to enter
the judgment. (McMahon v. Harrison, 5 How. 360; Skinner v.
Quin, 43 N.Y. 99.) When a judgment has been reversed upon
appeal and a new trial granted, a judgment of reversal must be
entered before an appeal can be taken from the order reversing the
judgment and granting a new trial. Fhe judgment must be made a
part of the case on appeal from the order. Section 1318 of the
Code of Civil Procedure does not dispense with the entry of thic
judgment of reversal, but by implication requires it. (Vernon v.
Palmer, 67 How. 18.) If the party obtaining the order of reversal
neglects to enter judgment thereon, and the adverse party desires to
appeal, the latter should obtain an order requiring such entry. To
obtain this order, an application should be made at a Special Term of
the court in which the action is pending, upon the usual notice, and
upon an affidavit setting forth the proceedings had and the neglect
of the adverse party. Upon the hearing of the motion an order may
44 New Triats ann ApPprats.

 

Compelling the entry of an order.

 

be made directing the party entitled to judgment to enter the same
within a time specified, or if he fails to do so, that an attachment
issue against his attorney. (See Skinner v. Quin, 43 N. Y. 99, 101,
103.) This order should be entered with the clerk, and a certified
copy of the same, with notice of its entry, should be served upon the
attorney for the adverse party. If the party so served fails to enter
the judgment within the time limited by the order, the party desiring
the appeal has his remedy by proceedings for contempt.

SECTION II.
CompELLING THE ENTRY oF AN ORDER.

No appeal can be taken from an order until it has been entered
with the clerk. (Matter of NV. Y. Cent. & HI. &. R. R. Co., 60 N.
Y. 112.) The Code provides that an appeal cannot be taken from
an order made by a judge out of court, until it is entered in the
office of the proper clerk. Where such an order has not been so
entered, or the papers upon which it was founded have not been filed
in the same clerk’s office, the judge who made it, or, if he is absent,
or unable or disqualified to act, a judge of the court in or to which
an appeal therefrom may be taken, must, upon the application of a
party or other person entitled to take such an appeal, make an order
requiring the omission to be supplied within a specified time after
service of a copy of the order made by him. . (Code of Civil Pro.
§ 1304.) This order may be made upon an ex parte application.
The motion should be based upon an affidavit showing the prior
application to the judge; the papers upon which the application was
made and opposed; tle making of an order thereon, stating
generally its nature; that such order has not been entered in the
office of the proper clerk; or, if so entered, that the papers upon
which it is founded have not been filed in such office, and that the
moving party is thereby prevented from appealing therefrom. If
the moving party is not a party of record, and his right to take such
appeal does not otherwise appear, enough should be stated in the
moving affidavit to show at least a presumptive right to appeal. A
copy of this order and of the affidavit upon which it was granted
should be served upon the attorney for the adverse party. If such
attorney is dead, or has been removed, and notice of the removal
Motion ror A New Triat. 45

 

Review of facts after trial by jury.

 

has been served upon the attorney for the party desiring to appeal,
and another attorney has not been substituted, or if for any reason
service of a copy of the order upon the proper attorney for the
adverse perty cannot with due diligence be made within the State,
the copy may be served upon the adverse party, in the manner pre-
scribed by law for serving it upon an attorney. If personal service
upon the party cannot with due diligence be so made within the
State, the order may be served upon him as directed by a judge of
the court in or to which the appeal is to be taken. (Code of Civil
Pro. §§ 1302, 1804.)

Upon proof by affidavit that a copy of the order have been
served, and that the omission has not been supplied, the same judge
may make, upon notice, an order revoking or annulling the original
order from which the party desired to appeal. (Id. § 1804.) Notice
of the application for this order may be served in the manner above
pointed out for service of the order directing the entry. (I¢.)

The above provisions of the Code do not apply to orders made
by a surrogate, nor to the papers upon which such orders have been
granted (Code of Civil Pro. § 2575), as the law requires the surro-
gate to enter all orders made by him (Id. § 2498), and to file and
preserve each paper relating to a proceeding in his court. (Id.
§ 2500.)

SECTION III.
Motion ror a New Triat.

Review of facts after trial by jury.—Where a final judg-
ment has been rendered in the Supreme Court, or in a Superior City
Court upon the trial by a referee or by the court without a jury, an
appeal nay be taken tothe General Term of the same court upon
questions of law, or upon the facts, or both (Code of Civil Pro.
§ 1346, subd. 1), and a motion for anew trial is not absolutely essen-
tial to the right to a review of the facts by an appellate court. But
where the judgment has been rendered upon the verdict of a jury,
the statute authorizes an appeal from the judgment upon questions
of law only (Id. subd. 2), and the party is precluded from obtaining
a review upon the facts unless he has laid the foundation for such
review by a motion for a new trial. (See Mogers v. King, 66 Barb.
495; Wright v. Hunter, 46 N.Y. 409; Bennett v. Matthews, 64
46 New Trricvs ano Apprats.

 

Review of facts after trial by jury.

 

Barb. 410; ational State Bank v. Rising, 4 Hun, 793; Boss v.
World Mutual Life Ins. Co., 64 N. Y. 236; Hhrman v. Roths-
child, 23 Hun, 273 ; Fitzpatrick v. Woodruff, 15 Jones & Sp. 436;
Newton v. Yale, 15 Week. Dig. 33; Ely v. Bardin, 12 Week.
Dig. 205 ; Morehouse v. Agricultural Ins. Co.,11 Week. Dig. 228 ;
Morehead v. Holden, 7 Civ. Pro. R. 188; Olmstead v. Reed, Id.
190, note. See also Zhurber v. Harlem Bridge, etc. R. R. Co., 60
N. Y. 236.) In such case, a motion for a new trial is an indispens-
able preliminary to a review upon questions of fact. The party
desiring to obtain a review of the finding of a jury must make an
application to set aside the verdict on the evidence and for a new
trial, either to the judge at the Circuit or Trial Term, pursuant to
section 999 of the Code of Civil Procedure, or to the court at Spec-
ial Term pursuant to section 1002 of that act. Upon the hearing of
the motion at the Circuit or Speciai Term, the findings of the jury
upon the questions of fact may be reviewed, and if the motion for
a new trial is denied, an appeal from the order may be taken to the
General Term, either independently or in connection with an appeal
from the judgment. Upon the hearing of the appeal from the
order the General Term may review the facts (see Wright v.
Llunter, 46 N. Y. 409; Randolph v. Loughlin, 48 N. Y. 456, 457;
Courtney v. Baker, 60 N. Y.1; Harris v. Burdett, 73 N. Y. 186),
and imake such order as the case requires. Upon an appeal from a
judgment entered upon the verdict of a jury and from an order
denying a motion to set aside the verdict and for a new trial upon
the ground that the verdict is contrary to law, the whole case, upon
the law as well as the facts will be before the General Term for
review. (Zatev. McCormick, 23 Hun, 218.)

Where the surrogate has ordered the trial of a controverted
question of fact arising in a special proceeding for the disposition
of the real property of a decedent to be had before a jury at the
Cireuit, County Court, or Common Pleas (Code of Civ. Pro. § 2547),
and the question has been there tried pursuant to the order, the trial
can be reviewed in the first instance only upon a motion for a new
trial. A new trial may be granted by the surrogate or by the court
in which the trial took place, or, if it took place at the Circuit, by
the Supreme Court, in a case where a new trial of specitic questions
of fact, tried by a jury, pursuant to an order for such trial made in
an action, would be granted. (Id. § 2548.) An appeal may be
taken from the order made upon the motion for a new trial, as if
ite
TakiInc AND Perrecting AN APPEAL. 47

When the appeal should be from the judgment only,

 

the order had been made in an action, and with like effect. (Id.
§ 2549.)

So where specific questions of fact in an equity case have been
submitted to a jury under the direction of the court in a case where
a jury trial is not a matter of right, a party aggrieved by any find-
ing of the jury should move for a new trial of the question sub-
mitted, not, however, as a preliminary to an appeal, for the merits
cannot be reviewed upon an appeal from an order denying a motion
for a new trial in such case (see Code of Civil Pro. § 1347, subd. 2),
but as the only mode of obtaining an examination of the merits of
the controversy submitted to the jury. (See Bowen v. Becht, 35
Hun, 434; see also, post, Art. 9,§ 1.) But where a trial by jury of
specific questions of fact arising upon the issues has been claimed
and ordered as a matter of statutory or constitutional right, a party
aggrieved by the findings of the jury should move for a new trial
of the questions submitted, both for the purpose of obtaining a
re-examination of the merits upon the motion, and as a preliminary
to an appeal, in case the motion is denied. An appeal upon the
merits is not prohibited in such case. (See Code of Civil Pro. §
1347, subd. 2.) Unless the verdict is set aside, or a new trial is
granted, the finding of the jury upon each question submitted
to them, is conclusive in the action. (Id. § 970.)

A motion for a new trial is an indispensable preliminary to a
review by an appellate court of the determination of a jury to
which controverted questions of fact arising in a special proceeding
for the disposition of the real property of a decedent has been sub-
mitted under the order of the surrogate. (See Id. §§ 2547-2549.)

ARTICLE V.
TAKING AND PERFECTING AN APPEAL,

SECTION I.
Wuen THE APPEAL SHOULD BE FROM THE JUDGMENT ONLY.

When the issues in an action have been tried by a referee, or by
the court without a jury, and the defeated party is satisfied with the
rulings made upon the trial and with the orders made before judg-
ment, but is dissatisfied with the findings of fact or conclusions of
48 New Triats anp APpPpras.

 

When the appeal should be from the order only.

 

law contained in the report or decision, he should appeal from the
judgment only, as on such appeal he can obtain all the relief to
which he is entitled. So if the party desires to review only ques-
tions of law arising upon exceptions, whether the trial was by a jury,
by a referee, or by the court withouta jury, an appeal from the
judgment only will properly present these questions for review. So
where exceptions have been taken, and a motion for a new trial
has been made upon the minutes or at Special Term, the unsuc-
cessful party may waive any further review upon the facts, and
appeal to the General Term from the judgment only, and upon
this appeal review exceptions only.

SECTION II.

WuHen THE APPEAL SHOULD BE FROM THE ORDER ONLY.

Dismissal of complaint for delaying prosecution.—W here
an order has been made at Special Term dismissing the plaintifi’s
complaint for delay in prosecution, and a judgment of dismissal has
been regularly entered upon the order, the plaintiff, if he desires to
review the action of the court, should appeal from the order only,
and if the order is reversed, should then move the court at Special
Term for an order vacating the judgment on the ground of the
reversal of the order upon which it was based. An appeal from
both the judgment and order would be irregular, and if so taken,
the appeal from the judgment will be dismissed, even if the order be
reversed. (/amesv. Shea, 28 Hun, 74.) The proper practice, in
case the plaintiff feels aggrieved by the dismissal of his complaint
for delay in prosecution, is to appeal promptly from the order of
dismissal, and to stay the entry of judgment pending the appeal by
an order of the court or of a judge thereof, as provided in section
1351 of the Code of Civil Procedure.

Where judgment has been reversed and new trial ordered.
—Where a judgment from which an appeal is taken is reversed
upon the appeal and a new trial is granted, an appeal cannot be taken
from the judgment of reversal ; but upon an appeal from the order
granting a newtrial, taken as prescribed by law, the judgment of
reversal must also be reviewed. (Code of Civil Pro. § 1318.) But
PIC A

he th
Wuen APPEAL TAKEN FRoM JUDGMENT AND ORDER. 49

 

Order granting or refusing a new trial.

 

although the appeal is from the order granting -the new trial,
judgment must be entered on the order of reversal before such
appeal is taken, and this judgment must be made a part of the
case on theappeal. (Vernon v. Palmer, 67 How. 18.)

SECTION III.

Wuen tHE ApreaL SHOULD BE TAKEN FROM BOTH JUDGMENT AND
OrpER.

Review of intermediate order and final judgment.—A
party appealing from a final judgment may always obtain a review
of an intermediate order, which necessarily affects the final judg-
ment, and which has not already been reviewed upon a separate
appeal therefrom by the court or term of court to which the appeal
from the final judgment is taken, by specifying such order in his
notice of appeal ; and his right to such review is not affected hy the
expiration of the time within which a separate appeal from the
order might have been taken. (Code of Civil Pro. § 1316.) An
intermediate order is one made between the commencement of the
action and the entry of the final judgment from which the appeal is
taken. If such order has been erroneously granted or denied, and
no separate appeal has been taken therefrom, it should. be included
in the appeal taken from the final judgment, as otherwise it cannot
be reviewed upon the appeal. (Code of Civil Pro. § 1301; Edzote
v. Lewis, 16 Hun, 581.)

Where a party has opposed a motion to refer the issues, and on
the trial before the referee has taken the objection that the court had
no right to refer the case, but has omitted to appeal from the order
of reference before judgment, his only remedy remaining is to
appeal from the order in connection with the judgment. The objec-
tions taken on the trial will not be available to present the question
as to the propriety and regularity of the order of reference upon an
appeal from the judgment only. (AiJiott v. Lewis, 16 Hun, 581.)

Order granting or refusing a new trial.—Ordinarily, a party
may appeal directly from an order granting or refusing a rew trial,
or may appeal from the order in connection with an appeal from the
judgment. But in an equity cage, where there has been a trial by
50 | “New Trias anp APPfALs.

 

Decision upon demurrer.

 

jury of specific questions of fact arising upon the issnes under an
order made as prescribed in seetion 971 of the Code, and a motion
for a new trial of these issues has been granted or denied, no appeal
upon the merits from the order so made can be taken separately or
in connection with an appeal froin the final judgment. (Sce Code of
Civil Pro. § 1847, subd. 2.) The effect of the evidence given before
the jury cannot be reviewed by an appeal from the order; but an
appeal lies from the order for the purpose of reviewing questions of
law arising upon rulings made by the judge upon the trial before
the jury. (Bowen v. Becht, 35 Hun, 434.)

Decision upon demurrer.—Whicre a party desires to review
upon the merits a decision made upon the trial of a demurrer, he
should await the entry of judgment, either final or interlocutory,
and appeal both from the judgment and the order upon which it
was entered. If he appeals from the order alone, it will be prema-
ture. If he appeals from the judgment alone, and the judgment
follows the order, the judgment will be affirmed. (See Cambridge
Valiy Nat. Bank v. Lynch, 76 N. Y. 514; Miller v. Sheldon, 15
Han, 220; Lueustrine Fertilizer Co. v. Lake Guano, ete. Co., 16
Hnn, 484; Garner v. Hurmony Mills, 6 Abb. N. C. 212; Camp-
bell v. New York Cotton Exchange, 15 Jones & Sp. 556; Parsons
v. Hayes, 18 Jones & Sp. 29; Cameron v. Equituble Life Ins. Co.,
13 Jones & Sp. 628; Chnrch v. American Tel. Co.,15 Jones & Sp.
558. But see Land v. Supervisors of Columbia Co., 31 Hun, 531.)

SECTION IV.

Wuen tor Apprat SHoutp Br Taken From Botu tHe IntER-
LOCUTORY AND Finau JUDGMENT.

Upon an appeal from a final judgment, the appellant may always
obtain a review of an interlocutory judgment which necessarily
affects the final judgment, and which has not already been reviewed
upon a separate appeal by the court or term to which the appeal
from the final judgment is taken, by specifying such interlocutory
judgment in the notice of appeal. This right is not affected by the
expiration of the time within which a separate appeal from the
interlocutory judgment might have been taken. (Code of Civil
Pro..§ 1816.) In most cases an appeal from both the interlocutory
Mone or raging AN Apprat in Spectra Procreprnes. 51

 

In general—Mandamus.,

 

and the final judgment will be necessary to protect the rights of
the appellant, for the reason that if the interlocutory judgment is
not specified in the notice of appeal, it cannot be reviewed, and will
be taken, as far as it goes, as the settled law of the case, and as
determining the rights of the parties to the appeal. (/?eese v.
Smith, 95 N. Y. 645.)

SECTION V.

Move or Taxing an APPEAL FRoM A DetermMinaTIoN Mapr IN A
SrrctaL PRroceepine.

In general.—Except as otherwise specially prescribed by law,
the provisions of the Code relating to perfecting an appeal to the
General Term of the Supreme Court or of a Superior City Court
from an order, to staying the execution of the order appealed from,
to hearing the appeal, and to the entry and enforcement of the order
made upon the appeal, apply to an appeal from an order made ina
special proceeding, taken as prescribed in title 5 of chapter 12 of
the Code of Civil Procedure (Code of Civil-Pro. § 1360); and except
as otherwise expressly prescribed by law, the proceedings upon an
appeal so taken are governed by the provisions of the Code of
general rules of practice relating to an appeal in an action. (Id.
§ 1861.)

Some of the general provisions of the statute as to the mode of
taking and perfecting an appeal in the excepted cases will be here-
after noticed.

Mandamus.—The Code provides that an appeal from an order
granting a peremptory writ of mandamus, where an alternative writ
was not previously issued, must be taken as from a final order made
in a special proceeding ; that an appeal from a final order made upon
an alternative mandamus must be taken as an appeal from a judg-
ment; and that each provision of law relating to an appeal from a
judgment, either to the General Term or to the Court of Appeals,
is applicable thereto. (Code of Civil Pro. § 2087.)

It will be seen that there is a distinction made between proceed-
ings where an alternative writ is first issued and then a peremptory
writ, and those in which a peremptory writ is issued in the first
instance. In the latter case, the appeal is to be taken as from a final
order made in a special proceeding, first under section 1356 to the

 
52 New Triats anp APPEALs.

 

Arbitration—Summary proceedings.

 

General Term, then under subdivision 3 of section 190 to the Court
of Appeals. But when an alternative writ is first issued and then a
peremptory writ, the appeal is to be taken as from a judgment.
(People v. Spicer, 34 Hun, 584.)

Arbitration.—The Code provides that an appeal may be taken
from an order vacating an award of arbitrators, or from a judgment
entered upon an award, as from an order or judgment in an action ;
and that the proceedings upon such an appeal, including the judg-
ment thereupon, and the enforcement of the judgment, are governed
by the provisions of chapter twelfth of that act so far as gee are
applicable. (Id. § 1281.)

 

Certiorari.—An appeal from an order, judgment, or determina-
tion made upon a proceeding to review and correct an illegal,
erroneous, or unequal assessment by certiorari under the act of 1880,
may be taken as from an order, and must be heard and determined
in like manner. (Laws of 1880, chap. 269, § 7.)

 

Proceedings against animals straying.—An appeal from an
order determining a claim for surplus moneys upon a sale of animals
seized while straying upon the highway, etc., may be taken to the
County Court as from a judgment of a justice in an action to
recover a sum equal to the claim; and the proceedings therenpon
are the same, except that an undertaking is not necessary for any
purpose. (Code of Civil Pro. § 3095.)

An appeal from an order made upon the demand by the owner
for the possession of animals seized while straying upon the high-
way, etc., must be taken in like manner as an appeal from a judg-
ment of the justice in action to recover a chattel (Id. § 3102);
and an appeal from a final order in a proceeding against strays
may be taken in like manner as an appeal from a judgment of
the justice in an action to recover asum of money equal to the
value of the animal or animals. (Id. § 3104.)

Summary proceedings.—An appeal may be taken from a final
order made in a proceeding to recover the possession of lands, to
the same court, within the same time, and in the same manner as
where an appeal is taken from a judgment rendered in the court of
which the judge or justice is the presiding officer, and with like
effect, except that the issuing or execution of the Sania eannot be
TIME WITHIN wHIoH To APPEAL. 53

 

Assignment for the benefit of creditors—To Court of Appeals.

 

stayed by such appeal, or by the giving of an undertaking
thereon, otherwise than as prescribed in section 2262 of the Code,
and except, also, that an appeal cannot be taken to the Court of
Appeals from a final determination of the General Term of the
Supreme Court or of a Superior City Court upon such an appeal,
unless the latter court by an order made at the General Term where
the final order is made, or at the next General Term thereafter,
allows it to be taken. (Code of Civil Pro. §§ 2260, 2261.)

No new trial can be had in the County Court upon an appeal
thereto from a final order made by a justice of the peace in a sum-
mary proceeding to recover possession of lands. The appeal must
be heard in the appellate court as an argument. (Brown v. Cassa-
day, 34 Hun, 55.)

Assignments for the benefit of creditors.—All orders and
decrees in a proceeding under the “ General Assignment Act” may
be appealed from the same as like orders or decrees of the County
Court in an original action brought therein. (Laws of 1877, chap.
466, § 22.) If the appeal is from a decree of the county judge
made upon the final accounting of the assignee, it should be taken
and perfected as if it were from a judgment of the County Court.
(See Matter of Beckwith, 15 Hun, 326.)

SECTION VI.
TIME WITHIN wHicH To APPEAL.

To Court of Appeals.—An appeal to the Court of Appeals
from a final judgment must be taken within one year after final
judgment is entered upon the determination of the General Term
of the court below, and the judgment-roll filed. (Code of Civil
Pro. § 1825.) An appeal to the Court of Appeals from an erder
must be taken within sixty days after service, upon the attorney for
the appellant, of a copy of the order appealed from and a writ-
ten notice of the entry thereof. (Id.)

An appeal from an award of the Board of Claims must be taken
within thirty days after service of notice of the final award of the
Board. (Laws of 1883, chap. 205, § 10. See Laws of 1884, chaps.
85, 329.)
54 New Trrats and APppPEALs.

 

To General Term of same court—To Supreme Court from inferior court.

 

                       

To An appeal to General
Term of the Supreme Court, or of a Superior City Court must be
taken within thirty days after service upon the attorney for the
appellant of a copy of the judgment or order appealed from and a
written notice of the entry thereof. (Code of Civil Pro. § 1351.)

An appeal to the General Term of the City Court of New York
from a final judgment, is subject to the above rule. (Id. § 3190.)
But an appeal from an interlocutory judgment or an order must be
taken within ten days after service of a copy thereof and written
notice of entry. (Id.)

To Supreme Court from inferior court.—An appeal to the
Supreme Court from a final judgment rendered by a County Court,
or by any other court of record possessing original jurisdiction,
where an appeal therefrom to a court other than the Supreme
Court is not expressly given by statute, must be taken within sixty
days after service upon the attorney for the appellant of a copy of
the judgment, and notice of the entry thereof. (Code of Civil Pro.
§ 1341.) An appeal to the Supreme Court from an order, when an
appeal lies, must also be taken within sixty days, after service, upon
the attorney for the appellant, of a copy of the order and written
notice of the entry thereof. (Id. § 1343.)

The above provisions apply in a case where an appeal lies from
the City Court of Yonkers to the Supreme Court (Laws of 1878,
chap. 186, § 56, subd. 8), and to appeals from the County Court of
Westchester county in cases taken by appeal to that court from the
City Court of Yonkers. (Id. § 56, subd. 6.)

To Supreme Court from Surrogate’s Court.—An appeal to
the Supreme Court from a Surrogate’s Court, by a party, must be
taken within thirty days after the service, upon the appellant, or
upon the attorney, if any, who appeared for him in the Surrogate’s
Court, of a copy of the decree or order from which the appeal is
taken, and a written notice of the entry thereof. (Code of Civil Pro.

§ 2579.) An appeal by a person who was not a party (sec Id.
8 2569), must be taken within three months after the entry of the
deeree or order, unless the appellant’s title was acquired by means
of an assignment or conveyance from a party, in which case the
appeal must be taken within the time limited for the taking thereof
by the assignor or grantor. (Id. § 2572.)
TIME WITHIN WHICH TO APPEAL. 55

 

To County Court from inferior court—In special proceedings,

 

To Superier City Court from an inferior court.—An appeal
which may be taken from the General Term of the City Court of
New York to the Court of Common Pleas (See Code of Civil Pro.
§ 3191) must be taken within twenty days after service of a copy of
the judgment or order appealed from, and a written notice of the
entry thereof. (Id. § 3193.)

An appeal from a District Court of the City of New York to the
Court of Common Pleas must be taken within the time limited for
an appeal froin a Justice’s Court to a County Court. (Code of Civil
Pro. §§ 3213, 8046.)

And so of an appeal from the Municipal Court of Buffalo to the
Snperior Court of Buffalo. (Id. § 3045 ; Laws of 1880, chap. 344, § 6.)

To County Court from inferior court.—An appeal from a
judgment rendered by a justice of the peace, must be taken within
twenty days after the entry of the judgment in the justice’s docket;
except that where a defendant appeals from a judgment rendered in
an action wherein he did not appear, and the summons was not
personally served upon him, the appeal may be taken within twenty
days after the personal service upon him, on the part of the plaint-
iff, of written notice of the entry of the judgment, but not after
the expiration of five years from the entry of the judgment. (Code
of Civil Pro. § 3046.)

The above provisions apply to appeals from judgments rendered
in the Justices’ Court of Troy (Id. § 3213), and in the City Court of
Albany. (Id.; Laws of 1884, chap. 122, §§ 1 and 2.) In proceed-
ing inrespect to strays upon highways, an appeal from an order
determining a claim to surplus money, arising from the sale of the
animals (Code of Civil Pro. § 8095); or froma final order in the
proceeding (Id. § 8104), may be taken within ten days after the
order is made. An appeal from an order made upon a demand for
the possession of the animals may be taken at any time before the
final order in the special proceeding is made. (Id. § 3102.)

An appeal from the City Court of Yonkers to the County Court
of Westchester county must be taken within thirty days after notice
in writing of the entry of the judgment or order appealed from.
(Laws of 1878, chap. 186, § 56, subd. 8.)

In special proceedings.—An appeal authorized by title 5 of
chapter 12 of the Code of Civil Procedure (§§ 1356-7) must be
56 New Trtats anp APPEALs.

 

Limiting time within which to appeal,

 

taken within thirty days after service of a copy of the final order
from which it is taken, with a written notice of the entry thereof,
upon the appellant; or, if he appeared upon the hearing by an attor-
ney at law or an attorney in fact, upon the person who so appeared
for him. (Code of Civil Pro. § 1359.)

In summary proceedings to recover the possession of real prop-
erty an appeal may be taken froma final order within the same time
as where an appeal is taken from a judgment rendered in the court
or which the judge or justice is the presiding officer. (Id. §
2260.)

In proceedings supplementary to execution, where the execution
was issued out of a County Court, an appeal from an order made in
the course of the proceedings, may be taken in like manner as if the
order was made in an action brought in the same court. (Id. §
2433, subd. 2.)

An appeal from a final order discharging a prisoner upon his
giving bail in a proceeding instituted by writ of habeas corpus, may
be taken before bailis given. (Id. § 2058.)

An appeal from an order vacating an award of arbitrators, or
from a judgment entered upon such award, is taken as from an order
or judgment in an action. (Id. § 2366.)

An appeal from an order granting a peremptory mandamus,
where an alternative writ had not previously issued, must be taken
in the same time as an appeal from a final order, made in a special
proceeding ; and an appeal from a final order, made in a case where
an alternative mandamus first issued, must be taken within the same
time as an appeal from a judgment. (Id. § 2087. See People v.
Spicer, 34 Hun, 584.)

An appeal from a judgment rendered in pursuance of the pro-
visions of the general act as to mechanic’s liens may be taken within
the same time as an appeal in an action for the recovery of money
arising on contract. (3 R. 8. [7th ed.] p. 2416, § 21; and.see Laws
of 1885, chap. 342, § 13.)

Where an appeal Jies from an order made in a special proceeding,
and no special provision is made as to the time within which the
appeal must be taken, the general provision of the Code (§ 13859)
would seem to apply.

Limiting time within which to appeal.—From the foregoing
provisions of the Code it will be seen that as a general rule the time
Time witmin wHicu to APPEAL. 57

 

Limiting time within which to appeal.

 

within which to appeal from a judgment or order does not begin to
run until service of a copy thereof, and written notice of its entry ;
and notice of entry cannot be given until after the actual entry.
(Gallt v. Finch, 94 How. 193. See Sheridan v. Andrews, 81 N.
Y. 650.)

A party seeking to limit the time to appeal should see to it that
he is not under a stay of proceedings. A stay of proceedings except
entry of judgment stays notice of entry. (White v. Klinken, 16
Abb. 109.)

A notice of entry of judgment need not be in any particular
form (See Baker v. Hatfield, 29 Hun, 670), but there are certain
requirements which cannot be dispensed with. The notice must be
written ; must state in what office it is entered ( Valton v. National
Loan Fund Life Assurance Society, 19 How. 515); should be *
dated and properly addressed (See Sheridan v. Andrews, 81 N. Y.
650); and should be signed by the attorney serving it, with the
addition of his office address or place of business. (Rule 2; Aamer
v. Hathorn, 78 N. Y. 228; Kelly v. Sheehan, 76 N. Y. 825; Trial
Practice, 483.) A notice purporting to be the act of the plaintiff
and a defendant who have a joint interest, not signed by plaintifi’s
attorney, and signed by one only of defendant’s attorneys, who serves
no notice of substitution, is ineffectual. (Pickersgill v. Read, 7
Hun, 636.) But a substantial compliance with the statute is suffi-
cient. (Baker v. Hatfield, 29 Hun, 270.)

Notice of judgment is not a copy of the judgment within the
meaning of the statute requiring a copy to be served; and a notice
of entry specifying the items of damages and costs recovered, with-
out any other copy of the judgment, does not set running the time
within which to appeal. (Collins v. Wood, 16 Hun, 586.) But a paper
indorsed with the title of the canse and a statement that it is a certi-
fied copy of a certain order, subscribed by the attorney for the
respondent, with the number of his office, and properly addressed,
and containing upon its face a certificate of the clerk that it isa
copy of the order of the court and an extract from the minutes of
the court, is a sufficient notice of entry and copy of order to set run-
ning the time within which to appeal. (Devlin v. Mayor, 22 How.
166.)

The copy judgment served with the notice of entry need not
contain any unnecessary or superfluous matter appended to the orig-
inal and forming no part of the judgment, as for example, the sig-
58 New Trrats anp APprEars.

 

Limiting time within which to appeal,

 

nature of the judge at the foot of a final judgment rendered upon
the decision of the court. (Clapp v. Hawley, 97 N. Y. 610.)

If, after entry and notice, a judgment is amended as to amount,
a new notice is necessary (see Trial Practice, p. 483); and the inser-
tion, by leave of the court, of an alternative clause in a judgment
for the return of property, is a material alteration, and notice of the
change or of the entry of anew judgment must begiven. Notice
of a motion for leave to make the alteration is not sufficient.
(Brown v. Hardie, 5 Rob. 678.) But where costs are taxed and
inserted in a judgment and afterward are reduced on re-taxation,
no new notice is necessary. (/usted v. Ingraham, 75 N. Y. 250.)
In such a case there is no modification of the judgment. (See
Code of Civil Pro. § 3264.) The fact that the General Term
amends its order as to date only, does not require it to be re-entered
or re-served. (latter of Beckwith, 87 N. Y. 503.)

The copy should beserved upon,and notice given to each party or
person who has a right to appeal from the judgment or order. To
limit the time within which the party who enters the judgment
may appeal therefroin, he must be duly noticed. (Lankin v. Pine,
4 Abb. 309.) (As to who may appeal from a judgment or order,
see ante, pp. 32-39.)

Service of the copy and notice upon an attorney who has man-
aged the case for the appellant, and who gives an admission of ser-
vice in the name of the attorney of record, may besufficient. (Chase
v. Bibbins, T1 N. Y. 592.) But service upon an attorney who has
put in an unauthorized appearance for the appellant, is not available.
(Bates v. Voorhees, 20 N. Y. 525. But see Brown v. Nichols, 42
N. Y. 26.) Service of the copy and notice by mail limits the right
to appeal whether it is ever received or not. (J/idler v. Shall, 67
Barb. 446.) But where the service is by mail, the appellant has
double time within which to appeal. (Dorlon v. Lewis, 7 How.
182; Code of Civil Pro. § 798.)

Notice of entry of judgment for the plaintiff, given to the
attorney who has appeared for all the defendants, not only limits the
time within which adefendant may appeal as against the plaintiff,
but also the time within which he may appeal as against a co-defend-
ant. (Morrison v. Morrison, 16 Hun, 507.)

The time within which to appeal from a judgment, having been
properly set running, is not suspended by a motion to set aside the
TIME WITHIN wuicu To APPEAL. 59

 

Time cannot be extended,

 

judgment for irregularity. (Jtenowl v. Harris, 2 Sandf. 641;
Bishop v. Empire Trans. Co., 5 Jones & Sp. 17.)

The time within which to appeal to the Court of Appeals from
a final judgment begins to run when final judgment is entered upon
the determination of the General Term and the judgment-roll is
filed. (Code of Civil Pro. § 1325; Wells v. Danforth, 7 How. 197;
See Wilson v. Palmer,75 N.Y. 250.)

While no notice of the entry of a judgment rendered by a jus-
tice of the peace is necessary (unless the defendant was not person-
ally summoned and made defanlt) and the time to appeal begins to
run when the judgment is actually entered (See Muchs v. Pohl-
man, 2 Daly, 210), yet where a party assumes that notice is neces-
sary to limit the time and gives notice he cannot afterward claim that
the time began to run when judgment was entered. (Aiias v. Bab-
cock, 12 Abb. N. 8. 288.) Notice, when necessary,must be personal
and in writing. Notice incidentally derived by the appellant is not
sufficient. (Pearson v. Lovejoy, 53 Barb. 407 ; 85 How. 193.)

Time cannot be extended.—A court, or a judge, is not author-
ized to extend the time fixed by law within which to take an appeal,
and cannot gallow an appeal to be taken after the expiration of the
time fixed by law for taking it (Code of Civil Pro. § 784); except
that, where a party entitled to appeal from a judgment. or order dies
before the expiration of the time within which the appeal may be
taken, the court may allow the appeal to be taken by the heir,
devisee, or personal representative of the decedent at any time
within four months after his death. (Id. § 785.) This latter provision
of the Code applies to all courts. (Id. § 3347, subd. 6.)

The court has no power to exend the period, or allow an appeal
when the time has been suffered to expire (Salis v. Butler, 27
N. Y. 688; Clapp v. Hawley, 97 N.Y. 10; Miller v. Shall, 67
Barb. 446; Morrison v. Morrison, 16 Hun, 507, 511); and can-
not do by way of amendment that which it has no power to do
directly by an order. (ry v. Bennett, 16 How. 385; People v.
Eldridge, 7 How. 108.) Thus a notice of appeal from an order can-
not be amended by inserting the date of an carlier order, the time to
appeal from which has expired, in place of the date of the order
actually appealed from, although there be no doubt that the appellant
originally intended to appeal from the earlier order. (Bryant v.
Bryant, 7 Abb. N. 8. 188; 7 Rob. 49.) A notice of appeal from a
60 New Triatrs anp Apprats.

 

Waiver of the statutory limit.

 

judgment cannot be amended so as to include an order denying a
new trial, the time to appeal therefrom having expired (Ary v.
Bennett, 16 How. 385; Piper v. Van Buren, 27 Hun, 384); nor
can a notice of appeal from an order denying a new trial be amended
so as to include a judgment after the time to appeal from the judg-
ment has expired. (Lavalle v. Skelly, 90 N. Y. 546; 24 Hun, 642.)
Nor can a notice of appeal to the County Court upon questions of
law only be amended by inserting a demand for a new trial in the
appellate court.

The court will not set aside a judgment or order and direct its
entry as of a subsequent date for the sole purpose of allowing an
appeal therefrom. (Humphrey v. Chamberlain, 11 N. Y. 274;
Salls v. Butler, 27 How. 133, 1386; Marston v. Johnson, 13 How.
93; Cotes v. Smith, 29 How. 326; Wahzdtney v. Townsend, T Hun,
233; Parsons v. Winne, 17 Week. Dig. 236. And see Cuykendall
v. Douglass, 17 Week. Dig. 315.) And where the court amends its
order as to date merely, a party cannot extend his time to appeal by
are-entry of the amended order. (Matter of Beckwith, 87 N. Y.
503.)

Waiver of the statutory limit.—The expiration, of the statu-
tory time within which to appeal does not deprive the appellate
court of jurisdiction, but gives the respondent a right to insist that
the appeal shall not be heard (See Jacobs v. Morange, 1 Daly,
523); and if he sees fit to waive the statutory limit he may do so.
This may be accomplished by a stipulation, or by an admission of
due service of the notice of appeal, although the notice was not in
fact served within the statutory time. (L/affenberth v. Muller, 12
Abb. N.S. 221; Struver v. Ocean Ins. Co., 9 Abb. 23.) But an
admission of due service is not available unless the clerk was served
in time. (Waring v. Senior, 48 How. 226.)

If the respondent notices the appeal for argument, and appears
generally in the appellate court (Pearson v. Lovejoy, 53 Barb. 407;
85 How. 193; Peckersgill v. Read, 7 Hun, 636; Hill v. Burke,
62 N. Y. 111); or is guilty of laches in moving to dismiss (Jfutter
of Schreiber, 53 How. 859; Stevenson v. McNitt, 27 How. 335), he
will be deemed to have waived his right to insist that the appeal was
not taken in time.

The court may perhaps insist as a condition, upon refusing to
restrain the enforcement of a judgment, the time to appeal from
TIME WITHIN WHICH To APPEAL. 61

 

Computation of time—Premature appeals.

 

which has expired, that the judgment creditor consent that an
appeal be taken from the judgment with the same effect as if taken
within the time limited by law. (Jacobs v. Morange, 1 Daly, 523;
47 N. ¥. 57.)

Computation of time.—The Code provides that in computing
time the first day must be excluded and the last day included, and
that if the last day is Sunday or a public holiday it must be
excluded. (Code of Civil Pro. § 788. See however, Marvin v.
Marvin, 75 N. Y. 240.) Where the acts to set the time running
were done May 27th, a notice of appeal, served June 27th is in time,
under a limit of thirty days. (@allt v. Minch, 24 How. 193.) But
a twenty days limit, set running November 14th, expires December
4th, and a notice of appeal served December 5th is too late.
(Young v. Whitcomb, 46 Barb. 615.)

Where the notice to limit the time to appeal is served by mail
the appellant has double time within which to appeal. (Code of
Civil Pro. § 798; Dorlon v. Lewis, 7 How. 182.)

Premature appeals.—The provisions of the Code limiting the
time within which to appeal do notin terms prohibit an appeal
before the entry of a judgment or order, but such appeals are not con-
templated. Section 1304 expressly provides that an appeal cannot
be taken from an order made by a judge out of court until it is
entered in the office of the proper clerk ; and section 1300 provides
fur the service of the notice of appeal upon the clerk with whom
the judgment or order appealed from is entered, and therefore an
appeal cannot be taken until such entry. (See Jatter of New York
Cent. & H. R. R. R. Co., 60 N.Y. 112; Mcdfahon v. Harrison,
5 How. 360.) But an appeal to the Court of Appeals froma judg-
ment, perfected before the judgment-roll is filed, but on the same
day, is regular. The court will not inquire into fractions of a day
in such case. (Blydenburgh v. Cotheal, 4 N. Y. 418.)

An appeal to the Court of Appeals from a General Term order
affirming a judgment, is premature. The judgment should first be
entered and the appeal taken from that. (dvilmer v. Bradley, 80
N. Y. 630.) And an appeal to the Court of Appeals before all the
appeals to the General Term from the same judgment are disposed
of is premature and irregular. (Muldoon v. Pitt, 54 N.Y. 269.)
An appeal from an order sustaining or overruling a demurrer is pre-
62 New Triats anp Apprass.

 

Requisites of the notice,

 

mature 3 an interlocutory or final judgment must be entered and the
appeal must be taken both from the judgment and the order. (Cam-
bridge Valley Nat. Bank v. Lynch, 76 N.Y. 514; Campbell v. New
York Cotton Exchange, 15 Jones & Sp. 556; Parsons v. Hayes, 18
Jones & Sp. 29; Cameron v. Equitable Life Ins. Co.,13 Jones &
Sp. 628; Afdler v. Sheldon, 15 Hun, 220; Lacustrine Fertilizer
Co. v. Lake Guano, ete., Co., 16 Hun, 484; Church v. American
Rapid Tel. Co., 15 Jones & Sp. 558; Garner v. Harmony Mills,
6 Abb. N. C. 212; Contra, Hand v. Supervisors of Columbia Co.,
31 Hun, 531.)

SECTION VII.

Notice of APPEAL.

Requisites of the notice.—The Code provides generally that
an appeal must be taken by serving a written notice to the effect that
the appellant appeals from the judgment or order, or from a speci-
fied part thereof. (Code of Civil Pro. § 1300.) An appeal brings
up for review only such portions of the judgment or order as are
specified in the notice. Buta portion of a judgment cannot be
specified when it is an entirety, as in the case of an action at law for
asum of money only. (Cromwell v. Burr, 9 Daly, 482.)

It is not necessary to state the grounds of appeal. (Wilson v.
Allen, 3 How. 369.) It is sufficient to specify what is appealed
from and the court to which the appeal is taken (Id.) ; and an infor-
mal designation of the appellate court is sufficient if the respondent
could not have been misled (People v. Tarbell, 17 How. 120) ; and
if the appellant fail entirely to designate the appellate court, the
respondent waives the irregularity by appearing, noticing the appeal
for argument, and putting it on the calendar. (dLatter of Gates, 26
Hun, 179.) And the same rule applies toa failure to designate the
clerk’s office in which the judgment isentered. (Stlshee v. Gillespie,
9 Abb. N.S. 189.)

The notice should be signed by the attorney of record in the
court below, unless another attorney has been substituted. (See
Thierry v. Crawford, 33 Tun, 366.)

A notice signed “of counsel” for the appellant is irregular, but
may be amended by the appellate court. (Seaman v. McLieynolds, 8
Jones & Sp. 545.)
Norice or APPEAL. 63

 

Specifying interlocutory judgment or intermediate order.

 

It has been held that the service of a copy of a case and excep-
tions is equivalent to a formal notice of appeal (Jackson v. Las-
sitt, 33 Barb. 645; 12 Abb. 281; 21 How. 279. See Gutbrecht v.
Prospect Park & C. I. Le. R. Co., 23 Wun, 497, 498); especially if
not objected to. (Sherman v. Wells, 14 Mow. 522.) But this hold-
ing has been questioned (Salis v. Butler, 27 How. 138, 185); and
such a notice does not scem to meet the requirements of the Code.

A notice of appeal from a Surrogate’s Court must be in writing,
and must refer to the decree or order appealed fromm, and state that
the appellant appeals from the same or froma specified part thereof.
(Code of Civil Pro. § 2574.)

A notice of appeal from a justice’s court must be in writing, and
subscribed either by the appellant or by his attorney in the appel-
late court. (Id. § 3046.) The fact that the signature of the attor-
uey appears upon the back of the notice and not at the end thercof,
is an irregularity which may be cured by amendinent. (Gutbrecht
v. Prospect Park @C. I. &. R. Co., 28 Hun, 497. See Burroughs
v. Worton, 48 How. 182; 2 Hun, 550.)

In respect to an appeal from an award of the Board of Claims
the statute provides as follows: “ Every appeal shall be in writing,
stating briefly the grounds upon which it was taken, and subscribed
by the party or his attorney.” (Laws of 1883, chap. 205, § 10.)

(For forms of notices of appeal, see Appendix.)

Specifying interlocutory judgment or intermediate order.
—Where the appeal is from a final judgement or from a final order
in aspecial proceeding, and the appellant intends to bring up for
review thereupon an interlocutory judgment or an intermediate
order, he must, in the notice of appeal, distinctly specify the inter-
locutory judgment, or intermediate order to be reviewed. (Code of
Civil Pro. § 1301.) This may be done although the time within
which to appeal therefrom has expired. (See Id. § 1316.) But in
such case it must be specified in the notice as served, as it cannot be
inserted afterward by amendment (See ante, p. 59), and if not
specified it cannot be reviewed, and is to be taken as the settled law
of the case as to all points covered by it. (Reese v. Smyth, 95 N.
Y. 645 ; Cameron v. Equitable Life Assurance Soc., 13 Jones & Sp.
628; American Medicine Co.v. Keisler, 12 Jones & Sp. 557.) If the
appellant specifies a portion of the interlocutory judgment or inter-
mediate order in hi notice of appeal, he limits the right of review
64. New Triats anp AppEats.

 

Stipulation for judgment absolute—Upon whom served,

 

to the portion so specified. (Zown of Lyons v. Chamberlain, 25
Hun, 49, 51.)

An appeal from a decree of a surrogate brings up for review
each intermediate order which is specified in the notice of appeal
and necessarily affected the decree, and which has not already been
reviewed by the appellate court upon a separate appeal taken from
that order. (Code of Civil Pro. § 2571.)

The orders which may be so specified in a notice of appeal are
those made in the progress of the action or proceeding, and before
the judgment or decree appealed from, and by which the judgment
or decree was necessarily affected. (Hunt v. Chapman, 62 N. Y.
333 ; Quincey v. Young, 53 N. Y. 504; Mackay v. Lew7s, 54 Wow.
503; Selden v. Delaware d& Hudson Canal Co., 29 N.Y. 634.)

 

Stipulation for judgment absolute.—An appeal cannot be
taken to the Court of Appeals from an order granting a new trial
on a case or exceptions, unless the notice of appeal contains an assent
on the part of the appellant that if the order is affirmed judgment
absolute shall be rendered against the appellant (Code of Civil Pro.
§ 191, subd. 1); and the same rule applies on an appeal to the Court
of Common Pleas from the City Court of New York. (Id. $3191,
subd. 2.) The stipulation should be inserted in the notice served,
but its omission is an irregularity which may be amended. (dott
v. Lansing, 5 Lans, 516.)

(For form, see Appendix.)

 

Upon whom served.—The general provision of the Code is
that the notice of appeal must be served upon the attorney for the
adverse party and upon the clerk with whom the judgment or order
appealed from is entered. (Code of Civil Pro. § 1300.) If the
attorney for the adverse party is dead; or if he has been removed
and notice of the removal has been served upon the appellant’s
attorney, and another attorney has not been substituted in his place ;
or if, for any reason, service of a notice of appeal upon the proper
attorney for the adverse party cannot with due diligence be made
within the State, the notice of appeal may be served upon the
respondent. (Id. § 1302.) Service of the notice upon the respond-
ent is not good unless the conditions above mentioned exist. (Zripp
v. De Bow, 5 How. 114.)

It has been said that the adverse party, within the intent and
Notice or APPEAL. 65

 

Upon whom served.

 

meaning of a similar statute, is the party whose interest in relation
to the subject of the appeal is in conflict with the reversal of the
order or decree appealed from, or the modification sought by the
appeal (Thompson v. Ellsworth, 1 Barb. Ch. 624; Cotes v. Carroll,
28 How. 436); and that all the parties to the action, whose interests
as to the subject of the appeal are adverse to those of the appellant,
must be served with the notice. (Héscock v. Phelps, 2 Lans. 106.)
Thus, an action to foreclose a mortgage, in which there is a conflict
as to priority of mortgages between defendants answering separately,
a defendant whose intermediate mortgage is denied priority must
give notice to his co-defendants of his appeal from the judgment.
(Id.) A purchaser at a judicial sale is entitled to notice of an appeal
by a defendant from an order denying are-sale. (Barnes v. Stouyh-
ton, 6 Hun, 254. And see ante, p. 39, as to proper parties to an
appeal.) But a defendant who makes default is not an adverse party
as to a defendant who defends and against whom judgment is
rendered ; and where the latter appeals the former is bound by the
adjudication made upon the appeal, although he was not served with
a notice thereof. (Garnsey v. Knights, 1 T. & C. 259.)

An assignee of a portion of a mortgage, who is made a defendant
in an action to foreclose the same, who serves no answer upon, and
makes no claim against a co-defendant, is not an adverse party as to
such defendant, so as to require a notice of appeal to be served upon
him (Pickersgill v. Read, 7 Hun, 636); ad where in an action
by a trustee, a co-trustee who refuses to.join as plaintiff is made a
defendant, he is not entitled to notice of appeal by a co-defendant
against whom judgment is rendered. (Kilmer v. Hathorn, 78 N.Y.
228.)

In proceedings for draining lands, under the drainage acts, a
notice of appeal from the decision of the County Court, affirming a
decision of the commissioners, need only be served upon the com-
missioners, the respondents before the County Court. (Burk v.
Ayres, 19 Hun, 17.)

Service upon both the attorney for the adverse party and the
clerk is essential (See Langdon v. Hvans, 29 Hun, 652); but an
omission to serve one of these, where the other is served seasonably
and in good faith, may be supplied. (Code of Civil Pro. § 1303.)

A notice of appeal from a Surrogate’s Court must be served upon
each party to the special proceeding other than the appellant, and
upon the ermegite or the clerk of the Surrogate’s Court. (Code of
66 New Triats anp APprats,

 

How served.

 

Civil Pro. § 2574.) The question as to the proper parties to the
appeal has been already considered. (See ante, p. 39.) On an appeal
from a judgment of a justice of the peace the notice must be served
upon the justice by whom the judgment was rendered and upon the
respondent. (Code of Civil Pro. § 3046.) Where the respondents
are partners, service upon one is sufficient. (Miller v. Perrine,
1 Hun, 620.)

On an appeal from an award of the Board of Claims the notice
must be served upon the clerk of the board, and upon the attorney-
general. When the appeal is taken by the State, the notice must
be served upon the clerk of the board and the claimant, or the
attorney appearing for him. (Laws of 1883, chap. 205, § 10.)

How served.—A notice of appeal may be served upon the.
attorney for the adverse party, either by delivering it to him person-
ally (Code of Civil Pro. §§ 796, 1800); or throngh the post-office,
by depositing it, properly inclosed in a post-paid wrapper, in the
post-office of the party or attorney serving it, directed to the attor-
ney to be served, at the address within the State designated by him
for that purpose upon the preceding papers in the action; or, where
he has not made such a designation, at his place of residence, or the
place where he keeps an office, according to the best information
which can conveniently be obtained concerning the same (Id. § 797,
subd. 1); or, during hig absence from his office, by leaving the paper
with his partner or clerk therein, or with a person having charge
thereof (Id. subd. 2); or if there is no person in charge of his
office, and the service is made between six o’clock in the morning
and nine o’clock in the evening, either by leaving it in a conspicn-
ous place in his office, or by depositing it, inclosed in a sealed wrap-
per, directed to him, in his office letter box; or if the office is not
open so as to admit of leaving the paper therein, and there is no
oflice letter-box, by leaving it at his residence within the State, with
a person of suitable age and discretion. (Id. subd. 3.) In a proper
ease for service upon the respondent instead of his attorney (see
ante, p. 64), the service may be made in the mannner prescribed
for service upon his attorney (Id. § 1302.) If personal service upon
the respondent cannot, with due diligence, be so made within the
State, the notice of appeal may be served upon him and notice of
the subsequent proceedings may be given to him, as directed by a
judge of the court in or to which the appeal is taken. (1d.)

 
Noricr or APPEAL. 67

 

How served.

 

Service of the notice upon the clerk is made by filing it in his
office. (Id. § 1300.) The provisions of the Code for service by
mail only allow such service upon parties to actions and their attor-
neys, and if service is made by mail upon the clerk the notice must
not only be mailed to, but also actually received by him, within the
time limited for taking the appeal. (Mforris v. Morange, 26 How.
247; 18 Abb. 86; Crittenden v. Adams, 5 How. 310.) Service of
a notice on the clerk by mail, on the last day for appealing, is not
good. (Id.; Van Clief v. Mersereau, 8 Abb. N.S. 193, note.) Ser-
vice upon both the attorney and the clerk, after the time for
appealing has expired, is not good, although the attorney admit due
service. The waiver of the irregularity by the attorney does not
aftect the service upon the clerk. ( Waring v. Senior, 48 How. 226.)

In Surrogate’s Court the notice must be served within the
State. Where a party to the special proceeding appeared in person,
the notive must be personally served upon him; where he appeared
by an attorney it must be served personally, either upon him or
upon his attorney. Where a party who was duly cited did not
appear, the notice must be served upon him personally, if he can
with due diligence be found within the county ; otherwise it may be
served by depositing it, indorsed with a direction to the party, with
the surrogate or the clerk of the Surrogate’s Court. Where a per-
son to be served cannot, with due diligence, be found to make per-
sonal service upon him as prescribed, the surrogate or a justice of
the Supreme Court may, by order, prescribe such a mode of service
as he thinks proper, and service in that mode has the same effect as
personal service. (Code of Civil Pro. § 2574.)

In justice’s court service of the notice upon the justice must be
made by delivering it to him personally, or to his clerk, appointed
pursuant to law; but if the justice is dead, or if neither he nor his
clerk ean, after reasonable diligence, be found within the county,
service of the notice upon the justice may be made by delivering it
to the clerk of the appellate court. (Code of Civil Pro. § 3047.)
Service upon the respondent may be made by delivering it in any
part of the State to the respondent personally ; or in one of the fol-
lowing methods: 1. If the respondent is a resident of the county,
by leaving it at his residence, with a person of suitable age and dis-
cretion. If he is not a resident of the county, and the person who
appeared as his attorney upon the trial is a resident thereof; it may
be served upon the attorney, either personally or by leaving it at his
68 ‘New Trrats AnD APPEALS.

 

When security is required,

 

residence with a person of suitable age and discretion. 2. If service
within the county cannot be made, with due diligence, upon the
respondent personally or in the-method prescribed above, the notice
may be served upon him by delivering it to the clerk of the appel-
late court. (Id. § 3048.) Upon an appeal from an award of the
Board of Claims, service of the notice must be made in like manner
as in the Supreme Court. (Laws of 1883, chap. 205, § 10.)

SECTION VIII.
SECURITY TO PERFECT AN APPEAL.

When security is required.
the Court of Appeals effectual for any purpose, except in a case
where it is specially prescribed by law that security is not necessary
to perfect the appeal, the appellant must give a written undertak-
ing to the effect that he will pay all costs and damages which may
be awarded against him on the appeal not exceeding five hundred
dollars. (Code of Civil Pro. § 1326.) The same security is
required to perfect an appeal to the Supreme Court from a final
judgment of an inferior court (Id. § 1341; or to perfect au appeal
to the Court of Common Pleas from a final judgment rendered
upon an appeal taken to the General Term of the City Court of
New York. (Id. § 3192.)

To perfect an appeal to the Court of Appeals from an order,
security is as Becessary as on appeal from a judgment. (Cowdan v.
Teal, 67 N. Y. 581.) Security for the payment of all costs which
may be awarded against the appellant is necessary to perfect an
appeal from a judgment of the City Court of Yonkers, unless the case
falls within the general exceptivuns contained in sections 1313 and
1314 of the Code of Civil Procedure. (Laws of 1878, chap. 186, $ 56.)
So where an appeal is taken to the County Court from a judgment
of a justice of the peace, and a new trial in the appellate court is
demanded in the notice of appeal, the appellant, to render the appeal
effectual, must, at the time of serving the notice upon the justice,
give the security required by the Code to stay the execution of the
judgment. (Code of Civil Pro. § 3069.) The same security is
required upon a similar appeal from a judgment rendered in the
City Court of Albany, or in the Justices’ Court of the City of
Troy. (Code of Civil Pro. § 3213.)

                          
SEcurRiTY TO PERFECT AN APPRAL. 69

 

When security is not required to perfect an appeal.

 

A decree of a ecunty judge, made upon the final accounting of
an assignee for the benefit of creditors, partakes of the nature of a
final judgment rather than of an interlocutory order, and upon
appeal therefrom the same security must be given to render the
appeal effectual as is required to perfect an appeal to the Supreme
Court from the final judgment of an inferior court. (Jdfatter of
Beckwith, 15 Wun, 326.)

To render a notice of appeal from a determination of a surrogate
effectual for any purpose, the appellant must give the security
prescribed by section 2577 of the Code, unless the appeal is taken
by an executor, administrator, testamentary trustee, guardian or
other person appointed by the Surrogate’s Court, from a decree
directing him to pay or distribute money, or to deposit money in a
bank or trust company, or to deliver property ; or is taken by an
executor or administrator from an order granting leave to issue
execution against lim as prescribed in section 1825 of the Code;
or unless it is specially prescribed by law that security is not neces-
sary to perfect the appeal. (Code of Civil Pro. §§ 2577, 2578.)

Security is necessary to render effectnal for any purpose an
appeal to the County Court from a final order upon the petition
made by a justice of the peace in a proceeding against animals
straying, if the appeal is taken by the person answering the petition
(Id. §§ 3104, 3105,) and may be required by the County judge upon
an appeal taken by either party to such proceeding from an order of
the justice determining a demand for the return of the possession
of the animals seized. (Id. §§ 3102, 3103.)

Whicre the Code provides that an undertaking must be given to
render an appeal effectual for any purpose, the court has no power
to dispense with it. (Architectural Iron Works v. City of Brook-
lyn, 85 N. Y. 652.) But an omission to give the undertaking,
may be supplied under section 13803 of the Code. (Id. See also
Marvin v. Marvin, 11 Abb. N.S. 97.)

When security is not required to perfect an appeal.—Upon
an appeal taken by the people of the State, or by a State officer, or
board of State officers, the service of the notice of appeal perfects the
appeal, and stays the execution of the judgment or order appealed
from, without an undertaking or other security. (Code of Civil
Pro. § 1313.)

So upon an appeal taken by a domestic municipal corporation,
70 New Trrats anp AppkALs.

 

When security is not required to perfect an appeal.

 

the service of the notice of appeal perfects the appeal and stays the
execution of the judgment or order appealed from, without any
undertaking of other security, except that, where an appeal is taken
to the Court of Appeals, or to the Supreme Court from an inferior
court, or to the Court of Common Pleas from the City Court of
New York, or to the General Term of the same court, the court in
or from which the appeal is taken, may, in its diseretion, require
security to be given. In that case, the form, nature, and extent of
the security, not exceeding that which is required in a like case
from a natural person, and the time and manner in which it must
be given, must be prescribed by the order of the court; and the
mayor, comptroller, or counsel of the corporation may execute in
behalf of the corporation an undertaking so required to be given.
(Id. §§ 1314, 3190, 3192.)

No security is required to perfect an appeal to the General Term
of the same court, whether the appeal is taken from a judgment or
from an order. (Id. §§ 1851, 3190; Wiles v. Battershall, 26 How.
93; Genter v. Mields, 1 Keyes, 483; Litter v. Krekler, 44 How.
445; Smith v. Hvuans, 1 Abb. N. C. 896; MMoak v. Hayes, 25 Hun,
316.)

No security is required to perfect an appeal taken from an
inferior court to the Supreme Court from an order (Code of Civil
Pro. § 1343), excepting from a Surrogate’s Court (Id. § 2577), nor on
an appeal from an order to tle Court of Common Pleas from the
City Court of New York (Id. § 3192), nor on’an appeal from an
order made in the City Court of Yonkers (Laws of 1878, chap. 186,
§ 56, subd. 2), nor on an appeal to the General Term from a deter-
inination in a special proceeding, unless it is otherwise specially pre-
scribed by law. (Code of Civil Pro. § 1860.) So no security is
required to perfect an appeal to the County Court from a judgment
of a justice of the peace, unless a new trial in the appellate court is
demanded in the notice of appeal. And no security is required to
perfect an appeal from a judgment of the District Court of New
York to the Court of Common Pleas (Struve v. Droge, 62 How.
258), as the provisions of the Code authorizing a new trial in the
appellate court are not made applicable to appeals from District
Courts. (See Code of Civil Pro. § 3213.) So no security is required
to perfect an appeal to the County Court when taken by the claimant
from an order made by a justice of the peace, in a proceeding against
animals straying, determining a claim to the surplus proceeds of the
SECURITY To PERFECY AN APPEAL. 71

 

Appeal not perfected until security is given—Requisites of the undertaking.

 

sale (Id. § 3095), though security may be required upon an appeal
from an order of the justice determining a demand for a return of the
possession of the animals seized (Id. §§ 3102, 3103), and is indis-
jpensable, upon an appeal, by the person answering, from a final
order made upon the petition in such proceeding. (Id. §§ 3104,
3105.)

Appeal not perfected until security is given.—In a case
where security is required the appeal is perfected when the proper
undertaking is given, and a copy thereof, with notice of filing, is
served. (Code of Civil Pro. § 1326; Wade v. De Leyer, 63 N.Y. 318);
or in Surrogate’s Court, when the undertaking is filed. (Code, §
2581.) The undertaking may be given at any time before the time
for appealing expires, although the notice of appeal has already been
served ; but the notice does not become effectual for any purpose,
until the undertaking has been given. (/eaymond v. Lvichmond, 76
N.Y. 106. And see Blake & Johnson v. Lyons & Fellows Manuf.
Co., 75 N. Y. 611.) Until the undertaking is given no appeal is
pending (Benedict & Burnham Manuf. Co. v. Thayer, 82 N.Y.
610; Kelsey v. Campbell, 38 Barb. 238; 40 Id. 434; 14 Abb. 368;
Matter of Dumesnil, 47 N. Y. 677; 12 Abb. N.S. 117); and if a
notice of appeal is served and the cause is placed on the calendar,
without the undertaking being given, the proper practice is to move
to strike the cause from the calendar. (Raymond v. Richmond, 76
N. Y. 106. See, however, Jrcese v. Boese, 92 N. Y. 632.)

Requisites of the undertaking.—The cases in which security
is required to perfect an appeal, and the general requirements of
the statute as to the nature of that security have been heretofore
noticed. (See ante, p. 68.)

-When security is required to perfect an appeal to the Court of
Appeals (Code of Civil Pro. § 1326), or to the Supreme Court from
the judgment of an inferior court, other than a Surrogate’s Court
(Id. § 1341), or to the Court of Common Pleas from the City Court
of New York (Id. § 3192), the appellant must give a written under-
taking executed by at. least two sureties, specifying the residence of
each, to the effect that he will pay all costs and damages which may
be awarded against him on the appeal, not excecding five hundred
dollars, (Id. §§ 1826, 1834.) The security must be for both costs
72 New Trias anp APPEALS.

 

Requisites of the undertaking.

 

and damages, and security for damages only is not sufficient. (Zang-
ley v. Warner, 1 N. Y. 606.)

Where security is required to perfect an appeal from an order
or decree of a surrogate, it must be in the form of a written under-
taking, with at least two sureties, to the effect that the appellant
will pay all costs and damages which may be awarded against him
upon the appeal, not exceeding two hundred and fifty dollars.
(Code of Civil Pro. § 2577.)

Where security is required to perfect an appeal to the County
Court from a judgment rendered by a justice of the peace, or in
the City Court of Albany, or in the Justice’s Court of the city of
Troy (see ante, p. 68), it must be in the form of a written undertak-
ing, executed by one or more sureties, approved by the justice who
rendered the judgment, or by a judge of the appellate court, to the
effect that if the appeal is dismissed, or if judgment is rendered
against the appellant in the appellate court, and an execution
issued thereupon is returned wholly or partly unsatisfied, the sure-
ties will pay the amount of the judgment, or the portion thereof
remaining unsatisfied, not exceeding a sum specified in the under-
taking, which must be at least one hundred dollars, and not less than
twice the amount of the judgment; or, if the judgment in the
Justice’s Court is for the recovery of a chattel, that the sureties
will pay the sum fixed by that judgment as the value of the chattel,
together with the damages, if any, awarded for the taking, with-
holding, or detention thereof. (Code of Civil Pro. §§ 8050, 3069.)

Where security is required on appeal from the final order made
by a justice of the peace in a proceeding against animals straying, the
appellant aust give the undertaking required for perfecting an
appeal from a judgment and staying the execution thereof, as last
above mentioned, and also an undertaking, in the same or another
instrument, to the effect, that if the final order appealed from is
affirmed, or if the appeal is dismissed, the appellant will pay all
sums which the justice awards against him, upon the hearing, after
the determination of the appeal, as prescribed in section 3105 of the
Code of Civil Procedure, not exceeding asum to be fixed by the
judge to whom the undertaking is presented on an application for a
stay, and to be specified in the undertaking, which must be at least
twice the amount of all sums which might be deducted from the
proceeds of the sale as prescribed in section 3092 of the Code. (Id.
§ 3105.) .
Sxcuriry TO PERFECT AN APPEAL. 73

 

Perfecting an appeal trom a justice’s court.

 

Where security is necessary to perfect an appeal from a judg-
ment rendered in the City Court of Yonkers, a written undertaking
must be executed on the part of the appellant, by at least two sure-
ties, to the effect that the appellant will pay all costs which may be
awarded againsthim. (Laws of 1878, chap. 186, § 56.)

There is no impropriety in reciting in the undertaking given to
perfect an appeal, that the party giving it “intends to appeal,” as
the giving of the undertaking is essential to the completion of the
purpose to appeal. (Forrest v. ‘Havens, 38 N. Y. 469.)

Where the appeal is from two orders in a case where seeurity is
required, the undertaking must be for double the amount required to
perfect a single appeal. (Schermerhorn v. Anderson, 1N. Y. 430.
And see Skidmore v. Davies, 10 Paige, 316.) But onan appeal from
a judgment awarding different sums of money to different defend-
ants only one undertaking in the usual amount is necessary. (Smth
v. Lynes, 2.N. Y. 569.)

Perfecting an appeal from a justice’s court, ete.—The mode
of perfecting an appeal from a judgment rendered by a justice of
the peace is in some respects peculiar. A notice of appeal must be
served upon the justice and the respondent in the manner heretofore
pointed out (Ante, p. 67. See Code of Civil Pro. § 3046) ; and, if
a new trial is desired in the appellate court, the appellant must, at
the time of service of the notice of appeal upon the justice, give the
undertaking required to stay the execution of the judgment. (Anie,
p. 68. See Code of Civil Pro. § 3069.) Unless the justice is dead,
the appellant must, at the time of serving the notice, pay to the per-
son to whom it is delivered, the costs of the action, included in the
judgment, and the sum of two dollars as the fee of the justice for
making the return. (Id. § 3047.) This provisionas to the payment
of the costs of the action and the fee for making a return, applies
to appeals from the District Courts of the city of New York; the
City Court of Albany; the Justice’s Court of the city of Troy
(Code of Civil Pro. § 3213); the Municipal Court of Buffalo (Laws
of 1880, chap. 344, § 6); and the Municipal Court of the city of
Rochester. (Laws of 1880, chap. 14, § 246.) This provision must
be strictly complied with. Unless the costs included in the judgment
and the fee for making the return are paid to or relinquished by
the justice within twenty days from the rendition of the judg-
ment, the appeal is ineffectual and will be dismissed on motion.
VA New Triats AnD APPEALS.

 

Perfecting an appeal from a justice’s court.

 

{Thomas v. Thomas, 18 Hun, 481.) The payment of the fee for
making the return has been held to be jurisdictional, and that with-
out it the appeal is not perfected. (Southard v. Philips, 7 Hun,
18.) The only costs that need be paid are those included in the
judgment. (Zz parte Beadlestone, 7 Cow. 507); and if the appellant
offersto pay all the costs that can be required of him, and does
pay all that is: demanded, the payment is sufficient although
the justice takes less than he is entitled to receive. (People v. Gen-
esee Common Pleas, 4 Wend. 202.) But all the costs must be act-
ually pid, and the appellant has noright to retain a portion of them
as belonging tohim (People v. Saratoga Common Pleas, 1 Wend.
282); nor can the justice waive the payment by charging them
in account against the party. (Ze parte La Farge, 6 Cow. 61.)
The payment must be made strictly as required. Payment of the
fee for the return to the justice, and of the costs to the respondent,
is not a compliance with thestatute. (Hx parte Stephens, 6 Cow. 69.)
The costs must be paid to the justice or his clerk, who must pay
them over to the party who prevailed before the justice, and may
be taxed by the appellant as a disbursement if he succeeds upon the
appeal. (Sherwood v. Traveler’s Ins. Co., 65 How. 193.)

Ifa party, through mistake, inadvertence, or excusable neglect,
omits to pay the costs or fee necessary to perfect the appeal, the
appellate court, upon proof by affidavit of the facts, may, in its dis-
cretion, permit the amission to be supplied upon such terms as
justice requires, if the appellant has seasonably and in good faith
served the notice of appeal. (See Code of Civil Pro. § 3049. And
see also Eldridge v. Underhill, 17 Hun, 241.)

Where an appeal is taken from an order made in a proceeding
against animals straying, which determines a demand for the return
of the possession of an animal seized, the appeal will not be effectual
for any purpose, unless the appellant procures from the county judge
an order directing a stay of the proceedings upon the petition, and
a stay of the execution of the order appealed from, and files it with
the justice within the time allowed for the appeal. (See Code of
Civil Pro. §§ 3102, 3103.) So where an appeal from a final order
made upon the petition in such proceeding is taken by the person
answering, it is not effectual for any purpose unless the appellant
files with the notice of appeal an order of the county judge, or, if he
is absent from the county, of a justice of the Supreme Court,
reciting that the appeal has been perfected, and that the security
On AppraL To THE Court or APPEALS. 5

 

From judgment or order for a sum of money.

 

required by section 3105 of the Code of Civil Procedure has been
given thereupon, and directing a stay of proceedings upon the final
order appealed from, and that the possession of the animal or
animals seized be delivered to the appellant. (Id. §§ 3104, 3105.)
The proceedings to obtain these orders will be noticed hereafter.

ARTICLE VI.

STAYING EXECUTION ON APPEAL.

SECTION I.
In GENERAL.

It is a rule of almost universal application that a perfected appeal
does not stay the execution of the judgment or order appealed from,
and that to obtain a stay certain statutory requirements must be
complied with, either as to giving an undertaking, or obtaining an
order of the court. While an appeal, regularly taken and perfected,
is taking its course in the appellate court, the respondent may, not-
withstanding, unless stayed, proceed to enforce his judgment or
order, and the appellant’s only remedy is to enforce restitution when
he becomes entitled to it. There are some exceptions to this general
rule, which will be noticed hereafter.

The proceedings to cbtain a stay on appeal to the Court of
Appeals are applicable to other appeals, but for convenience will be
first stated separately, and their application afterward indicated.

SECTION II.
On AppraL To THE Courr or APPEALS.

From judgment or order for a sum of money.—If the appeal
is taken from a judgment for a sum of money, or from a judgment -
or order directing the payment of a sum of money, it does not stay
the execution of the judgment or order until the appellant gives a
written undertaking to the effect that if the judgment or order
appealed from, or any part thereof, is affirmed, or the appeal is dis-
missed, he will pay the sum recovered or directed to be paid by the
judgment or order, or the part thereof as to which it is affirmed.
46 Nuw Triats anp APPEALs.

 

From judgment or order for a sum of money.

 

But where the judgment or order directs the payment of money in
fixed installments, the undertaking must be to the effect that the
appellant wiil pay each installment which becomes payable pending
the appeal, or the part thereof as to which the judgment or order is
aftirmed, not exceeding a sum specified in the undertaking, which
must be fixed by a judge of the court below. The court below may,
at any time afterwards, upon satisfactory proof by affidavit that the
sum so fixed is insufficient in amount, make an order requiring the
appellant to give a further undertaking to the same effect, in a sum
and within a time specified in the order. A failure to comply with
such an order has the same effect as if no undertaking had been
given. (Code of Civil Pro. § 1327.) Where the judgment or order
from which an appeal is taken to the Court of Appeals, affirms a
judgment or order to the effect above specified, the undertaking
must be the same as if the judgment or order from which the appeal
is so taken was to the same effect as the judgment or order so
affirmed (Id. § 1832); that is, the undertaking must be in such a
form that the payment of the judgment or order affirmed by the
judgment or order appealed from, shall be secured. (Moses v.
Hasbrouck, 63 How. 84.) The undertaking must be to the effect that
if the judgment or order appealed from, or any part thereof, is
affirmed, or the appeal is dismissed, the appellant will pay the sum
recovered or directed to be paid by the judgment or order, or the
part thereof as to which it is affirmed. An undertaking that the
appellant will pay the sum recovered or directed to be paid by the
affirmance, or the part thereof as to which it is affirmed, is insuti-
cient. (Hollister v. McNeil, 31 Hun, 629; Aloses v. Hasbrouck,
63 How. 201; 10 Abb. N. C. 407.)

(For form of undertaking, see Appendix.)

The above provision of the Code applies only to a judgment
or order absolutely requiring the payment of a suin fixed, or which
may be ascertained by computation. It does not apply to a judg-
ment for a deficiency in a foreclosure action (Grow v. Garlock, 29
Hun, 598) ; nor to a judgment in the alternative for the payment of
money. (Quackenbush v. Leonard, 10 Paige, 131; but see Liliott
v. Buckland, 37 How. 71.) And a judgment requiring the pay-
ment of money out of a fund in court is not within the statute
(Curtis v. Leavitt, 10 How. 481; 1 Abb. 274; City Bank v. Bangs,
4 Paige, 285; Wright v. Miller, 3 Barb. Ch. 382; see Bank of
On AppEaL To THE Court or APPEALS. qT

 

From judgment or order directing conveyance.

 

Havana v. Moore, 8 Week. Dig. 198); except as to portions direct-
ing the party to pay costs. (Id.)

From judgment or order for delivery of property.—If the
appeal is froma judgment or order directing the assignment or
delivery of a document, or of personal property, it does not stay the
execution of the judgment or order until the thing directed to be
assigned or delivered is brought into the court below, or placed in
the custody of an officer or receiver designated by that court; or
the appellant gives a written undertaking, as prescribed in the fol-
lowing provision. (Code of Civil Pro. § 1328.) If the appeal is
taken from a judgment for the recovery of a chattel it does not
stay the execution of the judgment until the appellant gives a writ-
ten undertaking, in a sum fixed by the court below, or a judge
thereof, to the effect that the appellant will obey the direction of the
appellate court upon the appeal. (Id. § 1329 ; and see 1d. § 1332; see
People v. Albany & Susquehanna Le. &. Co., 57 Barb. 204, 219.) It
has been held that in an action of replevin, where the judgment is
in the alternative for the return of the property or for the value
thereof, the appellant must not only give an undertaking similar to
the one provided for above, but also an undertaking as in case of a
judgment for money (Ziliott v. Buckland, 37 How. 71); but the
language of the Code seems to render this no longer necessary.

A judgmeut directing a defendant to pay over moneys in the
hands of a receiver of co-defendants as belonging to them, is not a
money judgment, and the undertaking should be in accordance with
the above provision of the Code. (Bank of Havana v. Moore, 8
Week. Dig. 198.) ;

Jt is the duty of the judge to whom the application for a stay is
made to fix the amount of the undertaking. (Montefiore v. Favilla,
63 Hew. 386.)

(for form of undertaking, see Appendix.)

From judgment or order directing conveyance.—If the
appeal is taken from a judgment or order directing the execution of
a conveyance or other instrument, it does not stay the execution of
the judgment or order until the instrument is executed and depos-
ited with the clerk with whom the judgment or order is entered, to
abide the direction of the appellate court. (Code of Civil Pro. §
1330; and see Id. § 1332.)

 
%8 New Triats anp APpPEALs.

 

From judgment for real property.

 

If the appellant fails to comply with the above provision of the
Code, the respondent may issue execution, and if the court after-
ward grant the appellant relief, as a favor, it will not set aside the
execution, but merely stay proceedings on it. (Waring v. Ayres,
12 Abb. 112.)

A judgment directing the conveyance of real estate to a receiver
is within the above provisions of the Code. (Bank of Havana
v. Moore, 8 Week. Dig. 198.)

(For form of undertaking, see Appendix.)

From judgment for real property.—If the appeal is taken
from a judgment which entitles the respondent to the immedi-
ate possession of real property, or from a judgment or order
directing the sale or the delivery of possession of real property, it
does not stay the execution of the judgment or order until the
appellant gives a written undertaking to the effect that he will not,
while in possession of the property, commit, or suffer to be com-
mitted, any waste thereon, and that if the judgment or order is
affirmed, or the appeal is dismissed, he will pay the value of the
use and occupation of the property, or the part thereof as to which
the judgment or order‘is affirmed, from the time of taking the
appeal until the delivery of the possession thereof pursuant tu the
judgment or order, not exceeding a specified sum, fixed by a judge of
the court below. (Code of Civil Pro. § 1831; and see Id. § 1332.)
There is no discretionary power in the court to stay proceedings
unless the undertaking is given. (Watt v. Watt, 15 Abb. 367, note.
See Grow v. Gurlock, 29 Wun, 598, 599.) The proceedings are not
stayed unless the proper undertaking is given. (People v. Albany
cé Susquehanna 2. I?, Co., 57 Barb, 204, 219.)

A judgment awarding real property to the plaintiff, and restrain-
ing the defendants from further use thereof, cannot be stayed by an
undertaking given under the above provision of the Code. The
operation of a final injunction cannot be stayed pending an appeal.
(Troy & Boston R. R. Co. v. Boston LHoosie Tunnel & Western
Py, 57 How. 181.)

If the judgment directs a foreclosure and sale of real property
mortgaged, an undertaking is sufficient to stay the execution of the
judgment, which is to the effect that if the judgment is aftirmed, or
the appeal is dismissed, the appellant will pay any deficiency which
may occur upon the sale in discharging the sum to pay which the
On Apprat To Court or APPEALS. 19

 

In action for a specific performance—When an order is necessary.

 

sale is directed, with interest and the costs and all expenses charge-
able against the proceeds of the sale, not exceeding a specitied
sum, fixed bya judge of the court below. (Code of Civil Pro. § 1331.)
In foreclosure cases the appellant, desiring to stay execution, has
an option to give an undertaking against waste, and for use and
occupation, under the first sentence of section 1831 of the Code, or
an undertaking for adeficiency under the second sentence of that
section. Both of the undertakings provided for by that section
apply to an appeal from a judgment directing a foreclosure and
sale. (Grow v. Garlock, 29 Hun, 598.)

In action for specific performance.—Where the appeal is
from a judgment in favor of the owner of real estate, in an action to
compel the specitic performance of a contract for the sale thereof,
such owner shall have the same right to sell or dispose of the
same, as though no appeal had been taken, unless the appellant
shall file with the clerk of the court a written undertaking, in a
sum fixed by the court or a judge thereof, upon a notice to the
respondent of at least ten days, and to be approved by such court or
judge, to the effect that the appellant will, in case the judgment
appealed from shall be affirmed, pay to such owner such damages as
he may suffer by reason of such appeal, not exceeding the amount
of the undertaking. Such undertaking may be filed at any time
during the appeal, but any sale of such real estate, or contract to
sell the same in good faith and for a valuable consideration, after
said judgment, and before the filing of such undertaking, shall be as
valid as if such undertaking had not been filed. In case such under-
taking shall not be filed the respondent shall be entitled at any
time during such appeal to an order discharging of record any notice
of pendency of action filed in the action, and also cancelling and
discharging of record said contract, in case the same has been
recorded. (Code of Civil Pro. § 1323.)

When an order is necessary.—A perfected appeal does
not stay the execution of the judgment or order appealed from,
even in a case where no undertaking is provided for by statute to
stay proceedings. In such a case, an order of the court from which
the appeal is taken is necessary, and on such an application the
court may impose such terms as to security as will be sufficient to
protect the respondent against loss if in the Court of Appeals there
80 New Triats anp APPEALS.

 

On appeal to the Supreme Court from inferior court.

 

should be a decision adverse to the decision of the General Term.
(Me Mahon v. Allen, 22 How. 193; 138 Abb. 126 ; Valton v. National
Loan Fund Life Assurance Society, 19 How. 515; Post v. Dore-
mus, 60 N. Y. 871, 375; 1 Hun, 521, 525.) Thus, where a judg-
ment is entered upon a decision of the General Term allowing the
plaintiff to redeem a contract within sixty days, the Special Term
may, pending an appeal by the plaintiff, stay all proceedings on the
part of the defendant until the hearing and decision of the appeal,
and extend the time to redeem until sixty days after the decision of
the Court of Appeals. (Gray v. Green, 14 Hun, 18.)

An application for a stay is addressed to the discretion of the
court (Tiers v. Carnahan, 3 Abb. 69); and should be refused
when it will, from the nature of the case, work an injustice (Clark
v. Brooks, 2 Daly, 159; 2 Abb. N. S. 385), or where the case is
not a proper one for astay. (Ford v. Turner, 5 Duer, 684; 3 Abb.
385.) The discretion is legal, not absolute.

In an action for dower an appeal from a final judgment award-
ing to the plaintiff possession of the part admeasured and iaid off to
her, does not stay the execution thereof, unless the court ur a judge
thereof grants an order directing such a stay. Such an order shall not
be granted if an undertaking is given on the part of the respondent,
with one or more sureties, approved by the court or a judge thereof,
to the effect that if the judgment appealed from is reversed or
niodified, and restitution is awarded, she will pay to the person
entitled thereto the value of the use and occupation of the part so
admeasured and laid off to her, or of the portion, restitution of
which is awarded, during the time she holds possession thereof by
virtue of the judgment. (Code of Civil Pro. § 1616.)

SECTION III.
On Apprat to Supreme Court rrom Inrertor Court, ETc.

From judgment.—Upon an appeal to the Supreme Court from
a final judgment rendered by a County Court, or by any other
court of record (excepting a Surrogate’s Court,) possessing original
jurisdiction, where an appeal therefrom toa court other than the
Supreme Court is not expressly given by statute, security must be
given to stay the execution of the judgment as upon an appeal to
the Court of Appeals from a judgment of thesame amount or to
On AppEeaL TO GENERAL TERM OF SAME COURT. 81

 

From order—Undertaking.

 

the same effect. (Code of Civil Pro. §§ 1840, 1341. See Jones v.
Decker, 14 Abb. 891.) The proceedings to stay execution on appeal
to the Court of Appeals have already been stated. (Ande, pp. 75-81.)
The above provision also applies to and governs an appeal taken
from the City Court of New York to the Court of Common Pleas.
(Id. § 8192; and see Laws of 1878, chap. 186, § 6, as amended in
1881, as to City Court of Yonkers.)

A decree rendered by a county judge upon a final accounting of
an assignee for the benefit of creditors is in the nature of a final
judgment, and to stay execution, security should be given as on an
appeal from a judgment. (See Matter of Beckwith, 15 Hun, 326.

From order.—<An appeal to the Supreme Court, from an inferior
court, from an order, does not stay the execution of the order
appealed from. The appellate court, or a judge thereof, may direct
such a stay, upon such terms as to security or otherwise, as justice
requires. (Code of Civil Pro. § 1343.) The rules as to staying
proceedings by order on appeal to the General Term of the same
court, are applicable.

SECTION IV.
On Apprat to Genera, TERM oF SAME COURT.

Undertaking.—Upon an appeal to the General Term of the
Supreme Court, or of a Superior City Court (Code of Civil Pro.
§ 1346), or of the City Court of New York (Id. § 3190. See
Leoberts v. Donnell, 31 N. Y. 446), from a final judgment rendered
in the same court, the appellant may give the security required to
perfect an appezl to the Court of Appeals from a judgment of the
same amount, or to the same effect, and to stay the execution
thereof. In that case, the execution of the judgment appealed from
is stayed as upon an appeal to the Court of Appeals and subject to
the same conditions. (Code of Civil Pro. § 1852.) ‘The provisions
of title second of chapter twelve of the Code (§§ 1324-1339) apply
to such security as if the General Term was specified in those provis-
ions in place of the appellate court, and a judge of the same court
in place of a judge of a court below. (Id. § 1351.)

The requirements of undertakings on appeal to the Court of
Appeals have been stated. (Ante, pp. 75-80.)

6
82 New Triats anp Apprats.

 

Stay by order—Obtaining an order,

 

All the security is required to stay execution that is required to
perfect an appeal to Court of Appeal, and stay execution, although
by section 1351 of the Code, no security is required for the sole pur-
pose of perfecting such appeal. (Moak v. Hayes, 25 Hun, 316.
See Chemung Canal Bank v. Judson, 10 How. 183; Halsey v. #lint,
15 Abb. 367.)

Stay by order.—Except where it is otherwise specially prescribed
by law the appeal does not stay the execution of the judgment or
order appealed from, unless the court in or from which the appeal is
taken, or a judge thereof, makes an order directing such a stay.
(Code of Civil Pro. § 1351.)

Where the appeal is from a final judgment the appellant may
either give the requisite undertakings, or obtain an order, but he
must do one or the other. (Wiles v. Battershall, 26 How. 93 ; 18 Abb.
161; Staring v. Jones, 13 How. 423; Arnoux v. Homans, 32 How.
382.) In other cases, except where it is provided that no security
is required, a stay can only be obtained by a special order. (See
Britton v. Phillips, 16 Abb. 33.) A failure to pay costs directed to
be paid by an order does not stay the proceedings of the party in
default on appeal from the order, nor any proceedings necessary for the
due and orderly bringing of such appeal to argument. (Anonymous,
4 Abb. N.C. 11. See Marsh v. Woolsey, 14 Hun, 1, 3.)

 

Obtaining an order.—A motion for a stay may be made
ex parte, to the court or a judge; and a judge out of court may make
an order staying proceedings for a longer time than twenty days.
(Code of Civil Pro. § 775; Lull v. Hart, 27 Wun, 21.)

In the Supreme Court a judge in any part of the State may make
the order ex parte, although the action is bronght in the first judi-
cial district. (Id.)

The motion should be made in time to obtain an order and
serve a copy thereof before the time to appeal expires. (Code of
Civil Pro. §§ 1334, 1351; Wiles v. Battershall, 26 How. 93; 18
Abb. 161.) But the court may stay the proceedings at any time
pending the appeal (Cudver v. Hollister, 29 Hun, 479; Smith v.
Heermance, 18 How. 261); anda party failing to duly obtain an
order would seem to be entitled to the same relief as where he fails
to stay proceedings by duly giving an undertaking. (See Mills v.
Thursby, 11 How. 129.)
On AppEaL 'to GENERAL TERM OF SAME COURT. 83

 

Obtaining an order for a stay.

 

The report or decision, with the exceptions thereto, if the action
was tried by a referee or the court, and the case, if one has been
made, should be presented, in order that it may be seen whether
there is probable cause for review. (Otis v. Spencer, 8 How. 171.)

The order may be made, and may from time to time be modified
npon such terms as to security or otherwise as justice requires.
(Code of Civil Pro, § 13851.) The appellant is not entitled to it as
matter of right ( Welson v. Grant, 59 How. 350); but the discre-
tion to be exercised is a legal and not an absolute discretion. (Cole-
man Vv. Phelps, 24 Hun, 320, 321.) A stay should not be granted
where the party whom it is sought to stay has no interest in the
question involved in the order appealed from (People v. Alker,
12 Hun, 88); nor upon an appeal from an order refusing a stay.
(People v. Manhattan El. R’y Co., 19 Daily Register, No. 133.)

The terms to be imposed are left to the sound discretion of the
court or judge granting the order. (Waring v. Somborn, 12 Hun,
81.) The court may stay proceedings pending the appeal without
requiring the appellant to give the security prescribed by the Code to
stay execution ina similar case. (Granger v. Craig, 85 N. Y. 619.)
Although the lien of a docketed judgment cannot be suspended with-
out security, a stay of execution may be granted, either upon giving
security or without it, or upon such other terms as the court or judge
deems proper. ( Wright v. Delafield, 11 How. 465.) Where the
questions of law presented are new and difficult, and where no preju-
dice is likely to ensue from omission to give security, it is proper to
allow a stay without security. (Lentilhon v. Mayor, 3 Sandf. 721 ;
People v. Nolan, 63 How. 873; 10 Abb. N. C. 472.) And where
the appellant’s responsibility is unquestionable no security need be
required. (Polhamus v. Moser, 7 Rob. 443.) But where the judg-
ment directs the delivery of personal property, perishable in its
nature, the respondent should be indemnified against depreciation,
and for use, etc. (Read v. Potter,11 Abb. 413.) And where the
property in question includes the good will of a business, which is
being continued by a receiver the court will not stay a sale pending
the appeal, unless the respondent is indemnified against depreciation.
(Clark v. Brooks, 2 Abb. N. 8. 385.)

Where the appellant received the fund in question as trustee
he should be required to give security. (Christy v. Libhy, 3 Abb.
N. 8. 423.) On appeal from an order granting alimony pendente
dite the court may require, as a condition of granting a stay, that the
84 New Triaus ann APPEALS.

 

On appeal from orders under the General Banking Act.

 

appellant give a bond with two sureties, conditioned for the pay-
ment of the alimony and counsel fee, directed to be paid by the
order, and such further alimony as may accrue during the appeal.
(Lachenmeyer v. Lachenmeyer, 4 Law Bulletin, 17.)

The court or judge granting the stay is not confined to requiring
security, but may otherwise impose terms in a sound discretion.
Thus, the appellant may be required to waive a defense which he
has interposed in the action, and if he accept the relief granted he
is bound by the condition imposed. (Waring v. Somborn, 12 Hun,
81.) If security is given as a condition of granting the order the
provisions of title second of chapter twelve of the Code (§§ 1826-
1335) apply thereto as if the General Term was specified in those
provisions in place of the appellate court, and a judge of the same
court in place of a judge of the court below. (Code of Civil Pro.
§ 1351.)

(For form of order of staying proceedings, see Appendix.)

On appeal from orders under the General Banking Act.—
The provisions of the General Banking Act of 1882 (chap. 409) in
respect to the security required to stay execution of the judgment
or order appealed from, are somewhat peculiar. These provisions
are as follows: “No appeal from any determination or order of a
justice of the Supreme Court, made pursuant to sections 129, 130,
131, 189 and 188 of this act shall suspend or delay the execution of
such order or the effect of such determination, unless shall be tiled,
with the notice of the appeal to the clerk of the court, a certificate
of a justice of the Supreme Court, to the effect that there is probable
error in such order, or determination, nor unless security be given
satisfactory to such justice for the payment of the demand upon
which the proceedings in those sections may be founded, whenever
judgment shall be rendered therefor, with interest at the rate of ten
per centum and costs.” (Laws of 1882, chap. 409, § 149.)

“ No appeal from any order or determination made pursuant to
section 134 of this act shall suspend or delay the execution of such
order or the effect of such determination, unless there be filed,
together with the notice of appeal to the clerk of the court, a certiti-
cate in all respects corresponding with that required by the last pre-
ceding section, nor unless security be given satisfactory to the justice
granting such certificate to indemnify the stockholders upon whose
application such order or determination was made, against all dam-
On Appgat in Spectat Procrepines. 85

 

Stav by order—Habeas corpus.

 

ages, costs, expenses and losses by reason of any debt or liability of
such corporation or association.” (Id. § 150.)

“ An appeal from the determination of a justice of the Supreme
Court confirming the apportionment of the debts and liabilities of a
corporation or association among the stockholders thereof, as pro-
vided by this act, may be taken by the receiver of such corporation
or association, or by any one or more of the stockholders affected by
such apportionment, in the same manner and with the like security
as provided by law in ease of appeals from a Special Term of the
Supreme Court to a General Term, or from the judgment of such
General Term to the Court of Appeals, in the same manner and
with the like security and effect as appeals to the same court from
any other like judgment, except that it shall not be necessary for a
receiver so applying (appealing?) to give security for costs or
otherwise.” (Id. § 152.)

“Every security taken under sections 149, 150 and 152 of this
act shall be filed with such clerk of the Supreme Court as the
justice taking the same shall direct.” (Id. § 154.)

“The security referred to in the last preceding section may be
enforced by suit, in the name and for the benefit of any person for
whose benefit or indemnity the same was taken.” (Id. § 155.)

SECTION Y.
On ApPEat 1n SPECIAL PROCEEDINGS.

Stay by order.—The provisions of the Code relating to staying
the execution of the order appealed from on appeal to the General
Term of the same court, apply where an appeal is taken from a
determination in a special proceeding as prescribed in sections 1356
and 1357 of the Code except as otherwise specially prescribed by
law. (Code of Civil Pro. § 1860.) These provisions and the pro-
ceedings to obtain the order staying proceedings have already been
noted. (See ante, pp. 81-84.)

 

Habeas corpus.—In proceedings under a writ of habeas corpus
where a prisoner, who stands charged, upon a criminal accusation,
with a bailable offense, has perfected, or intends to take, an appeal
from a final order dismissing the proceedings, remanding him, or
otherwise refusing to discharge him, made as prescribed by the
86 New TriAts anp APPEALS.

 

Habeas corpus.

 

Code, the court or jndge upon his application, either before or
after the final order, must, upon such notice to the district-attorney
as the court or judge thinks proper, make an order, fixing thesum in
which the applicant shall be admitted to bail, pending the appeal ;
and thereupon, when his appeal is perfected, he must be admitted
to bail accordingly. (Code of Civil Pro. § 2060.)

The recognizance for that purpose must be conditioned, that the
prisoner will appear, at the General Term of the appellate court to
be held at a time and place designated in the order, and abide by and
perform the judgment or order of the appellate court. It must be
taken and approved by a justice of the Supreme Court, or by the
court or judge from whose order the appeal is taken, or by the
county judge of the county in which the order was made, or, in the
city of New York, by a judge of the Court of Common Pleas for
that city and county. (Id. § 2061.)

If sufficient bailis immediately offered, the court or judge must
take it; otherwise bail may be given afterwards, as follows: Upon
the production of the order, or, if it was made by a court, of a
certified copy thereof, to a justice of the Supreme Court, or to the
county judge or special county judge of the county, or to judge ofa
Superior City Court of the city, where the prisoner is detained, the
judge must take the recognizance of the prisoner, with two sureties,
in the sum so fixed, conditioned for the appearance of the prisoner,
as prescribed in the order. Each person, offering himself asa surety,
must show, by his oath, to the satisfaction of the judge, that he is
a householder in the county, and worth twice the sum in which he
is required to be bound over and above all demands against him.
It is not necessary, that the prisoner should appear in person before
the judge, to acknowledge the recognizance; but it may be acknowl-
edged by the prisoner, and certified in like manner as a deed to be
recorded in the county. (Id. §§ 2045, 2046, 2051.)

The judge must immediately file the recognizance with the clerk
of the court, before which the prisoner is bound to appear. He
must also make a certificate upon the order or the certified copy
thereof, to the effect that it has been complied with. Upon produe-
tion of the certificate, the prisoner is entitled to his discharge from
imprisonment, for any cause stated in the return to the writ. (Id.
§ 2047.)

Where a prisoner who stands charged with an offense specified
On ArpraL In SpectAL Procrrpines. 87

 

Mandamus—Pyrohibition.

 

above has perfected an appeal to the Court of Appeals, from a final
order of the Supreme Court, or of a Superior City Court, affirming
an order refusing his discharge, or reversing an order granting his
discharge ; the court, from whose order the appeal is taken, or a
judge thereof, must, upon his application, admit him to bail as pre-
scribed above ; except that the recognizance must be conditioned to
appear, at a general term of the eourt from which the appeal is
taken, to abide by and perform its judgment or order, made after the
deter rmination of the appeal. (Id. § 2062.)

A relator in habeas corpus proceedings who is remanded to cus-
tody on a bench warrant and desires a stay pending an appeal to the
Court of Appeals, must personally execute the recognizance within
the jurisdiction of the court. (People v. Mead, 64 ow 252.)

Mandamus.—An appeal from an order granting a peremptory
writ of mandamus, where an alternative writ of mandamus was not
previously issned, must be taken as from a final order made in a
special proceeding. An appeal from a final order made upon an
alternative mandamus, must be taken, as an appeal from a judgment,
and each provision of law, relating to an appeal from a judgment,
eitler to the General Term or to the Court of Appeals, is applicable
thereto. But where an appeal is taken, as prescribed in this section,
from an order of the General Term, granting a peremptory man-
dainus, made upon an original application, or from a final order,
made upon an alternative mandamus, granted at the General Term,
the execution of the order appealed from shall not be stayed, except
by the order of the same General Term, made upon such terms, as
to security and otherwise, as justice requires. (Code of Civil Pro.
§ 2087; and see § 2089.)

For the proceedings to obtain a stay by order, see ante, p. 82.

Prohibition.—Where the appeal is from a final order made in
favor of the relator by the General Term, the execution of the order
shall not be stayed except by an order of the same General Term,
made upon such terms as to security or otherwise as justice requires.
(Code of Civil Pro. § 2101, and see § 2102.) The effect of the above
provision scems simply to qualify the general provisions as to a stay
on appeal from a final determination in a special proceeding. (See
ante, p. 85.)
88 New Triats anp APPEALS.

 

Summary proceedings—Arbitrations.

 

Summary proceedings.— Where an appeal is taken from a
final order awarding delivery of possession to the petitioner, which
establishes that a lessee or tenant holds over after a default in the
payment of rent, the issuing and execution of the warrant may,
except in the city and county of New York, be stayed by the order
of the county judge. Such an order can be made only upon the
appellants giving the security required to perfect the appeal and
stay the execution of the order appealed from, and also an under-
taking to the petitioner in a sum, and with stireties, approved by
the county judge to the effect that if upon the appeal a final deter-
mination is rendered against the appellant he will pay all the rent
accruing or to accrue upon the premises; or if there is no lease
thereof, the value of thé use and occupation of the premises subse-
quent to the institution of the special proceeding. (Code of Civil
Pro. § 2262.) The issuing or execution of the warrant cannot be
stayed by an appeal from a final order, or by the giving of an under-
taking thereupon, otherwise than as prescribed above. (Id. §§$ 2261,
9265.) The provision does not apply to a case other than where the
tenant holds over after a default in the payment of rent; for
example, where the order awards the petitioner possession on the
ground that the tenant carried on an illegal business (Shaw v.
McCarty, 2 Civ. Pro. R. [McCarty] 235); or where it is on tne
ground that the tenant is holding over after the expiration of his
term. (Schenck v. Prame, 63 How. 165.)

In the city and county of New York the execution of the warrant
will not be stayed by appeal or the proceedings thereunder. (Code
of Civil Pro. § 2262; see Broadwell v. Holcomb, 65 How. 502.)

(For form of undertaking, see Appendix.)

The stay by injunction undcr subdivision 2 of section 2265 of
the Code is not a stay by appeal, and need not be considered here.
(See 1 Civ. Pro. R. 425, note; Anow v. McDonald, 25 Hun, 268;
Broadwell v. Holcomb, 65 How. 502; Coster v. Van Schaich, 64
Tlow. 100.)

Arbitration.—The proceedings upon an appeal from an order
vacating an award, or from a judgment entered upon an award, are
governed by the general provisions of the Code as to appeals
(Chap. XII.) as far as they are applicable. (Code of Civil Pro.
€ 2381.) The judgment may be regarded as entered upon the
report of a referee in an action. (Id. § 2378.)
Deposit IN LIEU OF UNDERTAKING. 89

 

On appeal from a Surrogate’s Court or from a Justice’s Court.

 

SECTION VI.
On AprreaL From A Surrogate’s Court ok FRoM A JuUSTICE’s Court.

The provisions of the Code in relation to staying the execu-
tion of a decree or order rendered or made in a Surrogate’s Court,
or the execution of a judgment or order rendered or made bya
justice of the peace in an action or proceeding pending before him,
during the pendency of an appeal taken therefrom, are so far spe-
cial, that their consideration in this place would be improper. The
subject will be discussed in the chapters treating of appeals from
those courts.

ARTICLE VII.
GENERAL PROVISIONS AS TO SECURITY ON APPEAL.

SECTION I.
Watver or SxEcurRITY.

Any undertaking which the appellant is required by chapter
twelve of the Code to give (8§ 1293-1361), or any other act which
he is required to do for the security of the respondent, may be
waived by the written consent of the respondent. (Code of Civil
Pro. § 1305.) The above provision also applies to appeals from the
Surrogate’s Court. (Id. § 2575.)

A failure to comply with the provisions of the Code as to filing
and serving undertakings on appeal is an irregularity which is
waived if the respondent. appear in the appellate court and submit
the cause without objection. (Z/il v. Burke, 62 N. Y. 111.)

SECTION II.
Deposir 1n LIED oF UNDERTAKING.

Where the appellant is required by chapter twelve of the Code
(88 12938-1361) to give an undertaking he may in lieu thereof,
deposit with the clerk with whom the judgment or order appeaied
from is entered, a sum of money, equal to the amount for which
90 New Triats anp APPEALS.

 

Deposit in lieu of undertaking,

 

the undertaking is required to be given. The deposit has the same
effect, as filing he undertaking ; and notice that it has been made,
has the same effect, as notice of the filing and service of a copy of
the undertaking. The court, wherein the appeal is pending, may
direct the mode, in which the money shall be kept and disposed of,
during the pendency, or after the determination of the appeal.
(Code of Civil Pro. § 1306.)

The above provision also applies to appeals from Surrogate’s
Courts. (Id. § 2575.)

In lieu of the required undertaking the appellant may deposit
the amount for which such undertaking is to be given (See
Pringle v. Leverich, 1 Civ. Pro. R. 392); but the acceptance of
any other substitute cannot be compelled. (fied v. Leavitt, 5
Jones & Sp. 537, 538.) The respondent may, however, stipulate that
the appellant may deposit less security than the statute requires.
(Jesup v. Carnegie, 13 Jones & Sp. 310.)

Where an appellant appeals from the Special to the General
Term, making a deposit instead of giving an undertaking, and the
judgment is affirmed, and the appellant again appeals to the Court
of Appeals, the deposit must remain until the final determination of
the Court of Appeals (Mclntyre v. Strong, 16 Jones & Sp. 299;
63 How. 405), even where on the appeal to the Court of Appeals
ths appellant gives an undertaking to stay execution. (Parsons v.
Travis, 2 Duer, 659.) If the judgment has been materially reduced
in amount, in pursuance of the decision of the General Term, and
the respondent has accepted the reduced amount by stipulation, the
court may perhaps allow a portion of the deposit to be withdrawn
pending an appeal to the Court of Appeals; but the power, if it
exists, should be exercised only when it clearly appears that the sum
proposed to be left on deposit is, in view of all possible contingen-
cies, fully sufficient to satisfy any claim the respondent may event-
ually have against it in case the judgment of the Court of Appeals
should be one of aflirmance, exclusive of interest, and the additional
sum of five hundred dollars for costs in that court. (Melntyre v.
Strong, 16 Jones & Sp. 299; 63 How. 405.)

If pending the appeal the money is lost, stolen or embezzled,
without fault of the respondent, the loss falls upon the appellant.
(Parsons v. Travis, 2 Duer, 659.)

The money is subject only to the decision of the appeal, and
when the judgment is reversed the fund is released from all liens
DisPensine witn or Limrrina Srcurtry on APPEAL. 91

 

On appeal by municipal corporation.

 

except those created by judgment or assignment. The respondent
cannot, by showing that the appellant is insolvent, convert the fund
into a security for the payment of any judgment he may recover on
a new trial. (Jordan v. Volkening, 14 Hun, 118.)

SECTION III.
Disrensina with og Limiting Security on APPEAL.

People need not give security.—Upon an appeal, taken by
the people of the State or by a State officer, or board of State officers,
the service of the notice of appeal perfects the appeal, and stays the
execution of the judgment or order appealed from, without an under-
taking or other security. (Code of Civil Pro. § 1313; and see §
1990.) The provisions of the Code as to security on appeal to the
Court of Appeals, and which are applicable to other appeals, as
heretofore noticed, do not extend toa case where the people are
the party appellant. (Id. § 1333.)

On appeal by municipal corporation.—U pon an appeal, taken
by a domestic municipal corporation, the service of the notice of
appeal perfects the appeal, and stays the execution of the judgment
or order appealed from, without an undertaking or other security ;
except that where an appeal is taken as prescribed in title second,
third or fourth, of chapter twelve of the Code to the Court of
Appeals, to the Supreme Court from an inferior court, or to the
General Term of the same court, the court in or from which the
appeal is taken may, in its discretion, require security to be given.
In that case the form, nature and extent of the security, not exceed-
ing that which is required in a like case from a natural person, and
the time and manner in which it must be given, must be prescribed
by the order of the court ; and the mayor, comptroller, or counsel to
the corporation, may execute, in behalf of the corporation, an under-
taking so required to be given. (Code of Civil Pro. § 1814; and
see §§ 1990, 1333.)

In actions or proceedings in which the mayor, aldermen
and commonalty of the city of New York are a party, the under-
taking may be executed by the comptroller of the city on their
behalf. (Laws of 1880, chap. 8, and Laws of 1882, chap. 410, § 240.)
92 New Trrats anp APPEALS.

 

On an appeal by a receiver of a banking association—On appeal by executor, etc.

 

On an appeal by a receiver of a banking association from
the determination of the justice of the Supreme Court, confirming
the apportionment of the debts and liabilities of the corporation or
association among its stockholders, under the General Banking Act,
it is not necessary for the appellant to give any security for costs or
otherwise. (Laws of 1882, chap. 409, § 152.)

On appeal by,executor, ete.— Where an appeal is taken as
prescribed in title second or fourth of chapter twelve of the Code
to the Court of Appeals or to the General Term of the same court,
the court in or from which the appeal is taken ; or where an appeal
is taken as prescribed in title third or fifth of that chapter, to the
Supreme Court from an inferior court, to the court of Common
Pleas from the City Court of New York, or from a determination
in a special proceeding, the court to which the appeal is taken may,
in its discretion, where the appellant is an executor, administrator,
trustee, or other person acting in another’s right, make an order, upon
notice to the respondent, dispensing with or limiting the security
required to stay the execution of the judgment or order appealed
from. (Code of Civil Pro. § 1312.)

An application to dispense with security, etc., on appeal to the
Court of Appeals cannot be made to the Court of Appeals, but must
be made to the court from which the appeal is taken. The only
cases where the application can be made to the court to which the
appeal is taken, except where the appeal is in the same court which
rendered the judgment or made the order appealed from (But see
Code of Civil Pro. § 8192), are those where the appeal is to the
Supreme Court from an inferior court, or to the General Term of
the Supreme Court, or of a Superior City Court, in a special proceed-
ing. (Hills v. Peekskill Savings Bank, 95 N. Y. 675.)

The discretion of the court is limited to dispensing with or -
limiting the security required to stay execution. It has no power to
dispense with security required by statute to perfect an appeal.
(Architectural Iron Works v. City of Brooklyn, 85 N.Y. 652.)

A statement of a want of assets sufficient to pay the judgment is
good ground for limiting the security, at least to the amount of
assets disclosed applicable to the payment of the judgment appealed
from. (Jfills v. Lorbes, 12 How. 466.). But where executors, ete.,
give security on appeal without making an application to have the
same limited, they are deemed to admit that they have sufficient

 
Reguisirrs as To Form anp Execution or Unpertaxing. 93

 

Limiting aggregate amount cf security—Formal parts of an undertaking,

 

assets applicable to the judgment appealed from to satisfy the same.
(Id.; Yates v. Burch, 13 Hun, 622.)

Limiting aggregate amount of security.—Where an appeal
is taken, as prescribed in title second or fourth of chapter twelve of
the Code, to the Court of Appeals, or to the General Term of the
same court, the court in or from which the appeal is taken ; or where
au appeal is taken as prescribed in title third or fifth of that chapter,
to the Supreme Court from an inferior court, to the Court of Common
Pleas from the City Court of New York, or from a determination in
a special proceeding, the court to which the appeal is taken may, in
its discretion, make an order, upon notice to the respondent, limiting
the security required to stay the execution of the judgment or order
appealed from, as follows: The aggregate sum, in which one or
more undertakings are’ required to be given, may be limited to not
less than fifty thousand dollars, where it would otherwise exceed
that sum. (Code of Civil Pro. § 1312.)

The court has no discretionary power to grant a stay, where the
statute prescribes the security to be given. If the aggregate sum for
which the statute requires security to be given, exceed fifty thousand
dollars, the court may, on good cause shown, reduce the amount to that
sum. That is the extent of the discretion vested in the court.
( Watt v. Watt, 15 Abb. 367, note.)

Where the appellant, pursuant to stipulation, deposits securities
to stay execution, he waives any right he may have had to claim
that the discretion of the court should be exercised on his behalf by
reducing or limiting the amount of security. (Jesup v. Carnegie,
13 Jones & Sp. 310.)

SECTION IV.
Reauisires As TO Form anp Execution or UNDERTAKING.

Formal parts of an undertaking.—The special requirements
as to the different undertakings which must or may be given upon
appeal, have been stated, and only the general requisites will be con-
sidered in this section.

An undertaking executed by a surety orsuretics must, where two
or more persons execute it, be joint and several in form. (Code of
Civil Pro. § 812.) It need not be under seal nor express a consider-
94 New Triats anp APPEALS.

 

Sureties.

 

ation. (Zhompson v. Blanchard, 3 N.Y. 335 ; Seacord v. Morgan,
17 How. 394 ; Doolittle v. Dininny, 31 N.Y. 350.) Where two
or more undertakings are required to be given, they may be con-
tained in the same instrument, or in different instruments, at the
option of the appellant. (Code of Civil Pro. § 1334.) The party
need not execute it unless required to do so by special provision of
law. (Id. § 811.) The sureties should of course sign at the end of
the undertaking ; but where the signatures only appear at the end of
the jurat by which they swear to sufficiency as sureties, and they
acknowledge the execution of the “foregoing instrument,” it is suf-
ficient. (Weisbrod v. Marquardt, 8 Abb. N. C. 243; Lamkin v.
Douglass, 63 How, 47.)

An undertaking is sufficient if it conforms substantially to the
form therefor prescribed by the statute requiring it to be given, and
does nor vary therefrom to the prejudice of the rights of the party
to whom, or for whose benefit it is given. (Code of Civil Pro.
§ 729.)

Sureties.—Each undertaking given on appeal to the Court of
Appeals (the provisions as to which are applicable to other appeals
as heretofore indicated), must be executed by at least two sureties,
and must specify the residence of each surety therein. (Code of
Civil Pro. § 1384.)

Two sureties are also required to an undertaking given on appeal
from a Surrogate’s Court (See Id. §§ 2578, 2579); but one may
be sufficient on appeal from a Justice’s Court. (Id. § 3050.)

Where the court directs security to be given asa condition of
granting a stay, the question of sureties is in the discretion of the
court or judge, but two sureties are ordinarily required. (Delamater
v. Byrne, 57 How. 170.) Where two sureties are required, the
appellant cannot be substituted for one of them. Whether he does
or does not execute the undertaking there nust, in addition, be two
sureties. (Moses v. Hasbrouck, 63 How. 84; 10 Abb. N. C. 407;
Nichols v. MacLean, 98N. Y.458; Grimwood v. Wilson, 66 How.
283, 285.) .

Chapter 486, Laws of 1881, provides that any officer who is now
or shall hereafter be required to approve the sufficiency of an under-
taking, may, in his discretion, accept such undertaking and approve
the same whenever the conditions are guaranteed by a company, duly
organized or authorized to do business under the laws of this State,
Requisitrs as To Form anp Exrcution or Unpertaxine. 95

 

Affidavit of sureties,

 

and authorized to guarantee the fidelity of persons holding positions
of public trust. An undertaking given under the above act should
be executed by the appellant himself, and its conditions guaranteed
by the corporation. (McGean v. MacKeller, 67 How. 273.) It has
been held that the act has necessarily so far modified the provisions
of the Code requiring two sureties as to dispense with them when
the guarantee of a corporation may be given. (Hurd v. Hanibal &
St. Joseph &. L. Co., 33 Hun, 109 ; 67 How. 516 ; Matter of Filer,
11 Abb. N. C. 107.)

But it has also been held that the act applies only to bonds or
undertakings which are to be accepted or approved by a head of
department, surrogate, judge, sheriff, district attorney, or other offi-
cer, and does not affect or repeal the provision of the Code of Civil
Procedure requiring two sureties on an appeal to the Court of
Appeals. (WVichols v. MacLean, 98 N. Y. 458.)

Affidavit of sureties.—Except as otherwise expressly pre-
scribed by law, the undertaking must be accompanied with the afti-
davit of each surety subjoined thereto, to the effect that he isa
resident of, and a householder or freeholder within the State, and is
worth twice the sum specified in the unkertaking, over all the debts
and liabilities which he owes or hasincurred, and exclusive of prop-
erty exempt by law from levy and sale under an execution. (Code
of Civil Pro. § 812.) But where twice the sum specified in the
undertaking is five thousand dollars or upwards, the court or judge
may, in his or its discretion, allow the sum in which a surety
is required by law to justify, to be made up by the justification of
two or more sureties, each in a smaller sum. But in that case
a surety cannot justify in a sum less than five thousand dollars; and
where two or more sureties are required by law to justify, the same
person cannot so contribute to make up the sum for more than one
of them. (Id. § 813.) A deficiency in the affidavit of one of the
sureties cannot be made up by an excess inthe other. Twice the
sum specified in the undertaking must be twice made up, either by
two persons, each of whom is fully qualified, or by one person who
is sufficient by himself and two or more other persons who are
unitedly sufficient, or by two distinct sets of persons each of which
set is worth in combination twice the sum specified in the undertak-
ing. (See Zrask v. Annett, 1 Demarest, 171.)
96 New Trias anp APPEALS.

 

Acknowledgment—Approval.

 

Acknowledgment.—The undertaking must be acknowledged
or proved, and certified in like manner as a deed to be recorded.
(Code of Civil Pro. § 819; and see Rule 5.) It cannot be acknowl-
edged, nor can the affidavits of the sureties be taken, before the
attorney for the party in whose behalf the undertaking is executed.
(Bliss v. Molter, 8 Abb. N. C. 241.)

 

Approval.—lIt is not necessary that the undertaking should be
approved in the first instance (Code of Civil Pro. § 1835); except
on appeal from a Surrogate’s Court (Id. § 2581) a Justice’s Court (Id.
§§ 3050, 3134), and the courts to which the provisions as to appeals
from a Justice’s Court are applicable. On appeal from a Surrogate’s
Court the application isemade to the surrogate or a judge of the
appellate court. On appeal from a Justice’s Court it is made to the
justice or a judge of the appellate court. The approval must
be indorsed upon the undertaking. (Id. § 812.)

The above relates to undertakings given pursuant to the Code of
Civil Procedure. A general statute provides as follows: ‘“ When-
ever any person who now or hereafter may be required or permitted
by law to make, execute and give a bond or undertaking with
security conditioned for the faithful performance of any duty, or
for the doing or not doing of anything in said bond or undertaking
specified, any head of department, surrogate, judge, sheriff, district
attorney, or any other officer who is now, or shall hereafter be
required to approve the sufficiency of any such bond or undertak-
ing, may in the discretion of such officer accept of such bond or
undertaking, and approve the same, whenever the conditions of
such bond or undertaking are guaranteed by a company duly organ-
ized or authorized to do business under the laws of this State,
and authorized to guarantee the fidelity of persons holding positions
of public or private trust, and all such corporations are hereby
vested with full power and authority to guarantee such bonds and
undertakings. But this act shall not prevent a justification on the
part of snch company through its officers, as required by law of
other sureties.” (Laws of 1881, chap. 486, § 1.) It scems that this
act applies only to bonds or undertakings which are to be accepted
‘or approved by the officers specified. (See Wéchols v. MacLean,
98 N. Y. 458.)

There would seem to beno authority for placing on file an under-
taking guaranteed under the above statute, until it has been duly
Regqouistrzs As To Form AnD Execution or Unprertraxina. 97

 

Defective undertakings—On appeal from a Surrogate’s Court.

 

accepted. The statute contemplates an application for an allowance
and acceptance of the guarantee, independent of any procecdings
which the respondent may take to procure the justification of the
guaranteeing company. An application should therefore be made
to the court or a judge for an order allowing and accepting the
guarantee before filing the undertaking. This application should be
upon notice, and should be based upon the proposed undertaking,
and upon an affidavit setting forth the proceedings to take the
appeal. It is the duty of the court or judge in each particular case,
to exercise its or his discretion as to whether the actual state of the
company’s business justifies the approval of the undertaking.
(MecGean v. MacKeller, 67 How. 273.) And the respondent should
be permitted to examine the officers of the company as to its ability
to enter into and make the guaranty, before the undertaking is
approved or disapproved. (Hurd v. Hannibal & St. Joseph R. R.
Co., 33 Hun, 109; 67 How. 516.)

The decision of the court or judge should be embodied in an
order, which should be entered with the clerk of the court in which
the judgment or order appealed from was made or rendered, and a
copy of this order, with a notice of entry, should be served as in
other cases.

 

Defective undertakings.—When the undertaking is in snb-
stantial, thonglh not exact, compliance with the Code, the res-
pondent’s remedy, if any, is to move to set it aside. He cannot
disregard it and proceed as if no undertaking -had been given.
(Parfitt v. Warner, 138 Abb. 471; and see Code of Civil Pro. § 729.)
But where the defect is substantial,—for example, where an under-
taking to stay proceedings describes a judgment as entered on a
different date from the actnal date of entry,—the undertaking may
be disregarded. (Dinkel v. Wehle, 67 Tlow. 86 ; 61 How. 159.) And
where the sureties do not make affidavit to a sufficient amount
proceedings are not stayed. (Sternhaus v. Schmidt, 5 Abb. 66.)

On appeal from a Surrogate’s Court.—The undertaking must
be to the people of the State, must contain the name and residence
of each of the sureties thereto; and must be approved by the
surrogate or a judge of the appellate court. (Code of Civ. Pro.
§ 2581.)

It must be in the form prescribed by statute, or it will not be
7
98 New Triats ano Appra.s.

 

On appeal from a Justice’s Court—With whom undertaking filed.

 

approved. (Patullo’s Estate, 1 Tuck. 106.) But if the surrogate
holds that it is defective he must point out the particular defects.
(Blach’s Estate, 1 Tuck. 339.)

On appeal from a Justice’s Court.—The Code does not pre-
scribe any form for the undertaking to be given on appeal from a
judgment rendered by a justice of the peace (Doolittle v. Dininny,
31 N. Y. 350); but the general requirements of the Code should be
observed. Substantial compliance is sufticient. (People v. Herkimer
Common Pleas, 1 Wend. 310.) A misrecital of the day of rendition
of judgment ‘is fatal (People v. Monroe Common Pleas, 3 Wend.
426) ; while an omission to state the day of rendition of judgment is
not. (People v. Orleans Common Pleas, 2 Wend. 292.) It is not
necessary to recite the amount of costs. (People v. Chautauqua
Common Pleas, 2 Wend. 618.) The undertaking may be executed
by attorney (Zz parte Van Hoesen, 4 Cow. 505); but a general
power to defend a cause will not authorize the attorney to execute
an undertaking. (Hw parte Holbrook, 5 Cow. 35.) The undertaking
may be executed in blank (Zx parte Kerwin, 8 Cow. 118); but it
. eannot be altered after the blank has been filled. (Hx parte Decker,
6 Cow. 59.) The appellant need not execute the undertaking.
(People v. Dutchess Common Pleas, 5 Cow. 84; Code of Civil Pro.
§ 811; contra, Lx parte Brooks, 7 Cow. 428.) And the name of
the surety need not appear in the body of the undertaking. (Zz
parte Fulton, 7 Cow. 484.) Where there are two appellants an
undertaking in the usual form is sufficient. It need not provide for
any judgment against either. (People v. Saratoga Common Pleas,
1 Wend. 281.) ‘The respondent cannot be heard to complain that
the undertaking is more favorable for him than the statute requires.
(Ex parte Hurlburt, 8 Cow. 188; Ex parte Eastabrooks, 5 Cow.
27.)

SECTION VY.
Finiwg Uxperrariya; Srrvicn or Copy anp Noticn or Finine.

With whom undertaking filed.—The general provision of the
Code is that an undertaking given on appeal must be filed with the
elerk with whom the judgment or order appealed from is entered.
(Code of Civil Pro. § 1807.) And the above provision applies to
appeals from the Surrogate’s Court. (Id. § 2575.) Upon an appeal
Servicze or Copy anp Novice or Firrna. 99

 

Serving copy, undertaking and notice of filing.

 

to the Court of Appeals from a determination of the Court of Com-
mon Pleas on appeal from the City Court of New York, the under-
taking must be filed with the clerk of the latter court. (Id. § 8195.)
An undertaking executed on appeal from a judgment rendered by a
justice of the peace must be delivered to the justice or his clerk.
(Id. § 8051.)

Serving copy undertaking and notice of filing.—A copy of
the undertaking, with a notice showing where it is filed, must be
served on the attorney for the adverse party with the notice of
appeal, or before the expiration of the time to appeal. (Code of
Civil Pro. § 1334.) The above provision applies to undertakings
given on appeal to the Supreme Court from an inferior court (Id.
§ 1841); to the General Term of the same court (Id. §§ 1352,
3190); and to the Court of Comnion Pleas from the City Court of
New York. (Id. § 3192.)

An undertaking is not effectual until filed (Webster v. Stevens,
5 Duer, 682; 8 Abb. 227); but it may be filed, and a copy thereof
with notice of filing may be served at any time before the expiration
of the time to appeal, although notice of appeal has already been
served. (L0aymond v. Richmond, 76 N. Y. 106; and see Blake &
Johnson v. Lyon & Kellows Manuf. Co., 75 N. Y. 611.) But it
cannot be given after the time to appeal has expired without leave
of the court obtained upon notice. (See Wheeler v. Millar, 61 How.
396.)

On appeal from Surrogate’s Court, except as otherwise specially
prescribed, the filing of a proper undertaking and service of the
notice of appeal, perfects the appeal. (Code of Civil Pro. § ¥581.)

On appeal from justice’s court a copy of the undertaking, with a
notice of the delivery thereof, must be served with the notice of
appeal, and in like manner. (Id. § 3050.) As to mode of service,
see ante, p.66. If the justice is dead or cannot be found, etc., and
the undertaking is therefore filed with the clerk of the appellate
court, notice of the filing must be given in the same manner as a
notice of appeal. (Id. § 3052.)
100 New Trrats anp APPEALS.

 

Exception to sureties—Sureties excepted to must justify.

 

SECTION VI.
JUSTIFICATION oF SuRETIES.

Exception to sureties.—It is not necessary that the undertak-
ing should be approved; but the attorney for the respondent may,
within ten days after a service of a copy of the undertaking with
notice of the filing thereof, served upon the attorney for the appel-
lant, a written notice that he excepts to the sufliciency of the
sureties. (Code of Civil Pro. § 1835; and see §§ 1341, 1352, 3190,
3192.) The above provision also applies to an undertaking given
on appeal from a judgment of a justice of the peace. (Id. § 3050.)

Service of a notice of appeal and of a copy undertaking is not
sufficient to limit the time within which to except to the sureties;
the undertaking must also be filed, and notice of the filing given.
( Webster v. Stevens, 5 Duer, 682; 3 Abb. 227.)

Exception should be taken to the sureties, not to the undertak-
ing. (Young v. Colby, 2 Code Rep. 68.)

Disqualified sureties must be excepted to. (See Miles v. Clarke,
4 Bosw. 632.)

A corporation which has guaranteed an undertaking may be
excepted to, as in the case of other sureties. (Laws of 1881, Chap.
486.)

Sureties excepted to must justify.—Within ten days after
notice of exception to the sufficiency of sureties, the sureties, or
other sureties in a new undertaking to the same effect, must justify
before a judge of the court below or a county judge. (Code of Civil
Pro. § 1335.) If the original sureties are excepted to and fail to
justify, the appellant must furnish new sureties and procure their
justification within the time. (Chamberlain v. Dempsey, 22 How.
356; 18 Abb. 421.) But where the sureties fail to justify, and the
appellant gives a new undertaking and serves a copy and notice of
filing within the time allowed for the appeal, the sureties in the
undertaking need not justify unless excepted to. (Blake & John-
son v. Lyon & Fellows Manuf. Co., 75 N. Y. 611.) The respond-
ent’s attorney may waive the justification of a surety after he has
excepted to him. (Gopsild v. Decker, 4 Hun, 625.) But he cannot
insist upon his right to disregard the appeal or the stay of proceed-
JUSTIFICATION OF SURETIES. 101

 

Proceedings on justification.

ings, as the case may be, because of the failure of the sureties to
justify, and at the same time hold the sureties upon their under-
taking. (Manning v. Gould, 90 N. Y. 476, 480.)

Proceedings on justification.—At least five days’ notice of the
justification must be given (Code of Civil Pro. § 1835), and when
the notice is served by mail the rule as to double time must be com-
plied with. (Id. § 798; Dresser v. Brooks, 5 How. 75.) The
notice should specify the place of residence and occupation of each
of the sureties, the judge of the court or county judge before whom
the justification is to be had, and the time and place thereof. The
time must be not less than five days thereafter, and within the ten
days next after the notice of exception to sureties was served. The
place must be within the county where one of the sureties residés.
(Code of Civil Pro. §§ 578, 1335.)

(For form of notice of justification, see Appendix.)

For the purpose of justification each of the sureties must attend
before the judge at the time and place mentioned in the notice, and
be examined on oath on the part of the respondent, touching his
sufficiency, in such a manner as the judge in his discretion thinks
proper. (Id. § 580.)

If the respondent fail to attend he waives the benefit of his excep-
tion to the sureties, although the sureties also fail to attend. The
sureties having made affidavit as to sufficiency in the undertaking
the presumption in the first instance is in favor of their sufficiency,
and if the respondent, whose duty it is to be the actor in the pro-
ceeding before the judge, fail to attend, this presumption prevails,
(Ballard v. Ballard, 18 N. Y. 491.) In sneh case it has been held
that the sureties justify by default. (Gwsthal v. Reinhardt, 1 Law
Bulletin, 36.) But where the sureties justify, in the absence of the
respondent’s attorney, after the hour named has passed, the justiti-
cation is not good, although the sureties show good cause for not
appearing at the hour named. (J?ees v..Snell, 8 low. 185.)

The duty of the judge on the justification of a corporation which
has guaranteed an undertaking under chapter 486, Laws of 1881,
has been noticed elsewhere. (See ante, p. 97. See also Hurle vy.
Earle, 17 Week. Dig. 60.)

The judge may in his discretion, adjourn the examination from
day to day, until it is completed, but such an adjournment must
always be to the next judicial day unless by consent of parties. If
102 New Triats AND ApPrats.
Qualifications of sureties,

required by the plaintiff’s attorney the examination must be reduced
to writing and subseribed by the sureties. (Code of Civil Pro.
§ 580.)

Qualifications of sureties.—The qualifications of sureties are as
follows: 1. Each of them must be a resident of, and a householder
or freeholder within the State. 2. Each of them must be worth
the sum specified in the undertaking, exclusive of property exempt
from execution; but the judge, on justification, may allow more
than two sureties to justify, severally in sums less than that speci-
fied in the undertaking, if the whole justification is equivalent to
that of two sufficient sureties. (Code of Civil Pro. § 579.) An
attorney or counselor cannot be asurety. (Rule 5.) But an attor-
ney who has left the practice and: engaged in other business for
more than a year is not within theabove rnle. (Hvans v. Harris,
15 Jones & Sp. 366. But see Wheeler v. Wilcow, 'T Abb. 73.) Nor
does the above rule apply to undertakings on appeal from Justices’
Court. (Lawler v. Van Aernam, 22 Alb. Law J. 156.) The dis-
qualification is, however, general in its nature, and excludes the
attorney, although he is not the attorney of the party for whose
benefit the undertaking is executed. (See Wellmont v. Meserole, 48
How. 420, 532; 16 Abb. (N. 8.) 309.)

A householder is a master of a family (Woodward v. Murray,
‘18 Johns. 400); or one who has charge of and provides for a family

‘(Bonne v. Witt, 19 Wend. 475), or household. (Griffin v. Suther-

land, 14 Barb. 456.) But less strictness is observed in applying
the term in case of suretyship on undertakings than where exemp-
tion from execution is claimed. As applied to sureties on under-
takings it has been held to include one who rents and occupies
within the State, an office for business purposes (Somerset, etc.,
Savings Bank v. Huyck, 83 How. 323); and one who rents and
occupies a mill within the State and owns the machinery therein,
and is engaged inthe milling business. (Delamater v. Byrne, 57
‘How. 171.) A householder does not cease to be such by temporarily
ceasing to keep house and storing his household goods, with a view
to return and resume housekeeping. (Griffin v. Sutherland, 14Barb.
456 ; Cantrell v. Conner, 51 Tow. 45.)

A freeholder is one who has the legal title to real estate, irrespec-
tive of the amount or value of his interest therein. (People v.
JUSTIFICATION OF SURETIES. 103

 

Decision of the judge—Effect of failure to justify, etc.

 

Scott, 8 Hun, 566.) The possessor of a mere equitable title is not
a freeholder. (People v. ynds, 30 N. Y. 470, 472.)

Chapter 486, Laws of 1881, provides that the guarantee of a
company authorized by that act to guarantee undertakings, shall not
be accepted whenever its liabilities shall exceed its assets as ascer-
tained by the superintendent of the insurance department, in the
manner prescribed.

Decision of the judge.—The question as to the sufficiency of
the sureties isin the sound discretion of the judge. (See Delama-
ter v. Byrne, 57 How. 170; DMcGean v. MacKeller, 67 How. 278.)
If he finds the sureties sufficient, he must indorse his allowance of
them upon the undertaking or a copy thereof; and a notice of the
allowance must be served upon the attorney for the exceptant.
(Code of Civil Pro. § 1335.)

Effect of failure to justify, ete.—The effect of a failure to
justify, and to procure an allowance of the sureties, is the same as if
the undertaking had not been given. (Code of Civil Pro. § 1835.)
The failure defeats entirely the object and purpose of the under-
taking. Where security is required to perfect the appeal, the
appeal is not perfected, and the respondent may proceed as if no
appeal had been taken. Where security is not required to perfect
the appeal, but is required to stay the execution of the judgment,
the judgment may be enforced pending the appeal as if no under-
taking to stay the execution thereof had been given. (Manning v.
Gould, 90 N. Y. 476, 480.)

The failure to justify also releases the sureties from any liability
on their undertaking (Id.; Hoffman v. Smith, 34 lun, 485), and
after they have thus been discharged from their obligation, their lia-
bilities cannot be revived by aservice of a notice withdrawing the
exception and waiving justitication. To have that effect the notice
must be served before the sureties have refused or failed to justify.
(Id.)

 
104 New Triats anp APPEALS.

In general.

 

SECTION VII.

Errect or Perrectep APPEAL AND STAY OF PROCEEDINGS.

 

In general.— Where an appeal has been perfected (see ante, p. 69),
and the other acts, if any, required to be done to stay the execution
of the judgment or order appealed from (see ante, pp. 75-89).
have been done, the appeal stays all proceedings to enforce the judg-
ment or order appealed from; except that the court or judge from
whose determination the appeal is taken may proceed in any matter
included in the action or special proceeding, and not affected by the
judgment or order appealed from or not embraced within the appeal,
or may cause perishable property to be sold, pursuant to the judg-
ment or order appealed from. The proceeds of such a sale must be
paid, to abide the result of the appeal, into the court from or in
which the appeal is taken; or into the Supreme Court, if it was
taken as prescribed in title fifth, of chapter twelve of the Code,
from a determination in a special proceeding. (Code of Civil Pro.
§ 1310; and see § 13852.) Where the execution of the judgment or
order of the Supreme Court on appeal from an inferior court is
stayed by an appeal to the Court of Appeals the proceedings in the
inferior court are stayed in like manner. (Id. § 1345.)

The primary object of the section first cited was to protect the
party appealing from having the judgment enforced while the right
is in controversy, on condition of gtving security for the final judg-
ment. (Morey v. Tracey, 92 N. Y. 581, 584.) It does not prevent
the bringing of a new action against joint debtors not served in the
action in whicu the judgment appealed from was obtained (Id.);
nor a motion for the discharge of a receiver appointed on the part of
the appellant to collect rents pending the action. (lreland v.
Nichols, 40 How. 85; 9 Abb. N. 8. 71.) But where security is
given on appeal from a judgment against a sheriff for an escape,
leave cannot be obtained to prosecute the sheriff’s official bond
(Matter of Chamberlain, 28 Tlow. 1; 18 Abb. 103); and proceed-
ings supplementary to execution are stayed, as well as proceedings
upon the execution. (Cowdrey v. Carpenter, 17 Abb. 107; 2 Rob.
601 ; contra, Lowber v. Mayor, 5 Abb. 268.)

The effect of security is simply to stay proceeding at the point
Errect or Perrectep APPEAL AND sray or Procrepines. 105

 

Where the appeal is from a judgment awarding an injunction.

 

they were when security was given. (J2alhbone v. Morris, 9 Abb.
213.) No proceedings are vacated or superseded. (Id.; Strecker v.
Wakeman, 13 Abb. 85; Matter of Berry, 26 Barb. 55.) If proceed-
ings for a sale pursuant to the judgment are pending, the respondent
need not abandon them, but may adjourn the sale, at least until it
can be determined whether the sureties will justify. (Ward v.
James, § Hun, 526.)

Where the appeal is from a judgment awarding an
injunction.— Where a defendant appeals from a judgment which
restrains and enjoins him from doing certain specified acts, and stays
all proceedings on the part of the respondent in execution of the
judgment pending the appeal, he does not thereby impair the
validity and effect of the judgment pending the appeal, so far as it
bears upon and restrains his action, or that of his servants or agents.
The effect of the stay of proceedings is to prevent the respondent
from issuing process in execution of the judgment, and not to annul
the judgment or impair its obligations upon the appellant. So far
as it enjoins him, it needs no execution. It acts directly, without
process, and therefore the stay merely operates to prevent the col-
lection of the costs awarded. (Stath Avenue R. BR. Co. v. Gilbert
Elevated R. R. Co., 71 N. Y. 430.) It has been held, however,
that pending an appeal tothe General Term froma judgment graut-
ing a perpetual injunction, an order may be made staying proceed-
ings upon the judgment appealed from; and that an order of the
court or a judge is the only way to secure a stay in such a case.
(Stath Avenue I. R. Co. v. New York Elevated Jt. R. Co., 3 Abb.
N.C. 53; Genin v. Chadsey,12 Abb. 69. And sce Granger v.
Craig, 85 N. Y. 619.) It has also been heid that an application to
the court to punish the appellant for contempt in violating an
injunction awarded by a judgment, and the issuing of an attach-
ment, and a commitment for such contempt, are proceedings upon
the judgment, and are stayed, pending the appeal; that, although
the appellant disregards the injunction at his peril, the respondent
cannot move to punish him until the stay is terminated. (owe v.
Searing, 6 Bosw. 684; 11 Abb. 23.) The weight of authority,
however, classes the proceedings to punish as independent special
proceedings, which may be taken notwithstanding the appeal. (See

Siath Avenue R. R. Co. v. Gilbert Elevated R. R. Co., 71 N.Y.
106 New 'Trraus anp AppPrRALs.

 

Continuance of the stay.

430, 484: Troy & Boston 2. R. Co. v. Boston, Hoosie Tunned &
Western R’y Oo., 57 How. 181.)

Security on appeal from an order granting a temporary injunec-
tion, does not authorize the appellant to disobey an injunction.
(Power v. Village of Athens, 19 Hun, 170.)

 

Continuance of the stay.—Proceedings to enforce the judg-
ment or order appealed from are stayed until the decision of the
appellate court affirming the same. A formal judgment or order
embracing the decision must be entered before the stay is removed.
The mere oral announcement of the decision of the appellate court,
and the entry thereof in the minutes of the clerk, is not sufficient.
(Bowman v. Tallman, 28 How. 482; 13 Abb. 85; 3 Rob. 633. See
Seeman v. Reiche, 16 Week. Dig. 561.) But when a decision of
affirmance on appeal has been entered of record the stay is at an
end, and the respondent is entitled to proceed whether the appellant
has had notice of the decision or not. (Petrie v. Fitzgerald, 2
Abb. [N. 8.] 3854.)

Where an execution was levied before the stay took effect and
was not discharged by an order of the court (see the succeeding sec-
tion); the lien is not superseded by the stay. After a decision of
the appellate court in favor of the respondent, he is entitled to
resume proceedings on the execution, and has priority over subse-
quent executions. (Matter of Berry, 26 Barb. 55.)

SECTION VIII.
Discuarcinae Levy vron Personat Property.

A stay of proceedings does not per se supersede a levy upon per-
sonal property, made before the stay took effect. (Cook v. Dicker-
son, 1 Duer, 679; Matter of Berry, 26 Barb. 55; Rathbone v.
Morris, 9 Abb. 218; Bowman v. Cornell, 39 Barb. 69, 71.) But
where an appeal, taken from a final judgment to the Court of
Appeals has been perfected, and the security required to stay the
execution or the judgment has been given; or where the security
given upon an appeal, taken from a Aan aewiouh of the Supreme
Court, or a Superior City Court, 2 County Court, or the City Court
of New York, is equal to that required to perfect an appeal to the
Court of Appeals, and to stay the execution of the judgment; the
Susrenpina Lizen or Jupgment APPEALED From. 107

 

Lien may be suspended by order of the court.

 

court in which the judgment appealed from was rendered, may in
its discretion, and upon such terms as justice requires, make an
order, upon notice to the respondent and the sureties in the under-
taking, discharging a levy upon personal property, made by virtue
of an execntion issued npon the judgment appealed from. (Code
of Civil Pro. § 1811.) But the section cited does not authorize the
discharge of a levy by virtue of a warrant of attachment. (Id.)
Nor does the section apply where an undertaking was given before
the execution was levied. In such a case there is no right to make
a levy, although the undertaking is defective, where the conrt has
given leave to file a uew undertaking. The granting of time for
that purpose necessarily operates as a stay. (Aatzv. Auhn, 9 Daly,
172.)

Where the application is made pending an appeal to the Court
of Appeals, the sureties on an undertaking given on the appeal to
the General Term should have notice of the application. At least,
this is so where the appellant makes a deposit instead of giving an
undertaking on the appeal to the Court of Appeals. (Joote v.
Schneider, 5 Week. Dig. 463.)

Even before the section cited was enacted, the court has, in the
exercise of its discretion, granted such an order, where the appeal
was taken in good faith, and the security ample. (Stricker v.
Wakeman, 18 Abb. 85.)

SECTION IX.
Susrprnping Lien or Jupament APPEALED From.

Lien may be suspended by order of the court.—Where an
appeal from a judgment has been perfected, and an undertaking has
been given, sufficient to entitle the appellant to a stay of the execu-
tion of the judgment without an order for that purpose, the court
in which the judgment was recovered, may, in its discretion and upon
such terms as justice requires, make an order, upon notice to the
attorney for the respondent, and to the sureties in the undertaking,
exempting from the lien of the judgment, as. against judgment
creditors, and purchasers and mortgagees in good faith, the real prop-
erty or chattels real, upon which the judgment is a lien, or a portion
thereof, specifically described in the order. If all the property, sub-
ject to the lien, is so exempted, the order must direct the clerk, in
108 New Trrats anp APPEALS.

 

Suspending lien in another county.

 

whose office the judgment-roll is filed, to make an entry on the
docket of the judgment, in each place where it appears on the docket
book, substantially as follows: ‘Lien suspended on appeal. See
order entered”; adding the proper date. If a portion only is
exempted, the order must direct the clerk to make, in like manner,
an entry substantially as follows: “Lien vartially suspended upon
appeal. See order entered”; adding the proper date. The clerk
must, when he files the motion papers and enters the order, make the
entry or entries in the docket-book, as required by the order. (Code
of Civil Pro. § 1256.)

The provisions in regard to marking a judgment secured on appeal
being created by statute, the statute must be complied with to obtain
a valid order. (Green v. Milbank, 3 Abb. N.C. 188, 150.) Where
the appeal is to the Court of Appeals from a judgment of affirmance
the undertaking must be in such form as to secure the original judg-
ment, and the sureties must have notice of the motion. (Briggs v.
Brown, 18 Abb. N.C. 481.) Where the appellant makes a deposit
instead of giving an undertaking, the sureties in an undertaking given
on appeal to the General Term must have notice. (Foote v.
Schneider, 5 Week. Dig. 463.) If the judgment is marked secured
on appeal without notice to the sureties, they may move to vacate the
order (Green v. Milbank, 3 Abb. N.C. 188, 148); and the order
is invalid as to sureties not notified. (Id.; but see Burrall v. Van-
derbilt, 6 Abb. 70; 1 Bosw. 637.)

The terms to be imposed upon granting the order are in the dis-
cretion of the court. It may require that an additional surety be
given, and if one is given pursuant to the order, he assumes an equal
responsibility with the other sureties. (Bergen v. Stewart, 28
How. 6.)

Suspending lien in another county.—The clerk with whom
an order obtained as above is entered, must, upon payment of his
fees therefor, furnish to the party who obtained the order, one or
more transcripts, attested by his signature, of the docket of the judg-
ment, including the entry made upon the docket. A county clerk,
in whose office the judgment is docketed, must, upon payment of his
fees therefor, immediately file such a transcript ; and make an entry
upon the docket of the judgment, in each place where it appears in
his docket-book, substantially as follows: “Lien suspended,” or
“ Lien partially suspended,” according to the entry upon the original
Suspenpine Lien or Jup@mMent APPEALED F'Rom. 109

 

From what time lien suspended—Effect of the order.

 

docket, and also, “See transcript filed”; adding the proper date.
(Code of Civil Pro. § 1258.)

From what time lien suspended.—Where the order is made
by the Supreme Court or by a County Court, it operates as a sus-
pension of the lien upon property situated in the county, where the
judgment-roll is filed, from the time when the order is entered, and
the proper entry made in the docket-book. If the property

-exempted is situated in another county, or if the order was made by
a court other than the Supreme Court or a County Court, the order
operates as a suspension, from the time when the proper entry is
made in the docket-book, kept by the clerk of that county, as pre-
scribed above. (Code of Civil Pro. § 1257.) It has been held that
the order must be entered within ten days or it is vacated per se.
(Bronner v. Loomis, 17 Hun, 439, 4438. See Rule 3.)

Effect of the order.—The order exempts the real property or
chattets real, or a portion of thereof specified in the order, from the
lien of the judgment, as against judgment creditors and purchasers
and mortgagees in good faith. The object of the statute was to
permit the judgment debtor in such cases to deal with his property
as if the judgment had never been a lien thereon, upon the sole con-
dition that the purchaser or mortgagee shall act in good faith
(Union Dime Savings Institution v. Duryea, 67 N. Y. 84, 87); and
to. protect junior judgment creditors. A mortgagee in good faith
within the meaning of the statute is one who has taken his mortgage
without any design to defraud the plaintiff in the judgment, or any-
body else, and upon some bona fide consideration, either past or
present. (Bronner v. Loomis, 17 Hun, 439.) It is not necessary for
him to show that he parted with value at the time he took the mort-
gage, provided he took it fairly, honestly and for full value. (Union
Dime Savings Institution v. Duryea, 67 N.Y. 84; 3 Hun, 210.)

A purchaser of a judgment, docketed while the lien of a former
judgment is suspended by order, is entitled to buy as cheaply as he
can, and is entitled to all the rights of his assignor. The fact that
he purchased for less than the face of the judgment does not establish
that he did not purchase in good faith. (Harmon v. Hope, 87
N, ¥s 10.)

Where a lien has been suspended by an order of the court, the
court cannot by order restore the lien mune pro tunc, so as to cut
110 New Trrats ann AppEAts.

 

When sureties become insolvent.

 

off the lien of a judgment docketed in the interval. (Id.) But this
rule does not protect a mortgagee who took his mortgage after the
order was vacated. (Bronner v. Loomis, 17 Hun, 439, 442.)

SECTION X.
Comprttine Exxcution or new UNDERTAKING.

When sureties become insolvent.—The court, in which the
appeal is pending, upon satisfactory proof, by affidavit, that since the
execution of an undertaking, given as prescribed in chapter twelve
of the Code, one or more of the sureties therein have become insol-
vent; or that his or their circumstances have become so precarious,
that there is reason to apprehend, that the undertaking is not suffi-
cient for the security of the respondent ; may make an order, requir-
ing the appellant to filea new undertaking, and to serve a copy
thereof, as required with respect to the original undertaking. Ifthe
appellant fails so to do, within twenty days after the service of a
copy of the order, or such further time as the court allows, the
appeal must be dismissed, or the order or judgment, from which the
appeal is taken, must be executed, as if the original undertaking had
not been given. (Code of Civil Pro. § 1308.)

The section cited applies to undertakings given on appeal from
Surrogate’s Court. (Id. § 2575.)

In the absence of statutory rules an appellant who has given a
proper undertaking on appeal does not remain responsible for the
consequences of misfortune and the insolvency of his sureties.
( Willett v. Stringer, 6 Duer, 686; 15 How. 310.) An application
to the court under the statute is addressd to its discretion, and
although it be shown that one of the sureties is insolvent, the court
may refuse the order if the remaining surety is solvent, and abun-
dantly able to satisfy the judgment ; or if the judgment is otherwise
well secured and the appeal is likely to be heard and disposed of
without delay. (Dering v. Meteale, 72 N. Y.618. See Miseman v.
Swan, 11 Abb. 112.)

Where a new undertaking is required by the court, and the orig-
inal was given to perfect the appeal, a failure to give the new
undertaking necessitates a dismissal of the appeal. But where the
original was given to stay proceedings, the failure operates upon the
Comprtying Execution or NEW UNDERTAKING. 111

 

When sum fixed in undertaking is insufficient in amount.

 

stay and puts an end to it, but in no respect affects the appeal.
(Genter v. Fields, 1 Keyes, 483.

Where an infant plaintiff appeals by guardian ad litem from the
Special to the General Term, the court cannot, on proof of the insol-
vency of the guardian, require pew sureties, or stay proceedings
because the guardian fails to pay the costs of the judgment. ( Wece
v. Commercial Fire Ins. Co., 7 Daly, 258; 2 Abb. N. C. 325.)

Where an insolvent surety swears falsely as to his sufficiency,
with the knowledge of the appellant, the case is not within the
provision authorizing the court to require a new undertaking when
a surety has become insolvent, but is a case of fraud upon the court,
effected by perjury ; and the court may dismiss the appeal absolutely,
or grant the appellant leave to file a new undertaking, in its discre-
tion. (Hilson v. Murray, 27 Hun, 536.) In the case cited, the
undertaking was given on appeal to the County Court from a jus-
tice’s Judgment, and therefore section 1308 of the Code had no
application in any view of the case, being confined in its operation
to undertakings given pursuant to chap‘er twelre.

When sum fixed in undertaking is insufficient in amount.—
There are certain undertakings in which a sum specified, fixed by
the court or judge, is the maximum liability of the sureties,
Auoung these is the undertaking to stay proceedings on a judgment
for money payable in fixed installments (Code of Civil Pro. § 1327) ;
on a judgment for a chattel (Id. § 1329); on a judgment in favor of
the owner of real estate in an action to compel a specific performance
of a contract for the sale thereof (Id. § 1323); on a judgment
entitling the respondent to the immediate possession cf real property
(Id. § 1331); and certain undertakings to stay proceedings on appeal
from Surrogate’s Court. (Id. §§ 2578, 2579, 2580.) In such a case,
an application is made to the court or a judge, to fix the amount of
the proposed undertaking, and it is his duty to fix the amount.
(See Montefeiore v. Favilla, 63 How. 386.)

The Code further provides, where the appeal is from a judgment
or order directing the payment of money in fixed installments, that
the court below may, at any time after the undertaking is given, upon
satistactory proof by affidavit that the sum so fixed is insufficient in
amount, make an order requiring the appellant to give a further
undertaking, to the same effect, in a sum, and within a time speci-
fied in the order. A failure to comply with such an order has the
112 New Traits anp APPEALS.

 

Liability of sureties upon an undertaking given on appeal,

 

same effect as if the original undertaking had not been given. (Id.
§ 1827.) And where the appeal is from a Surrogate’s Court the
respondent may apply to the appellate court, upon notice, for an
order requiring the appellant to increase the sum fixed. If such an
order is granted, and the appellant makes default in giving the new
undertaking, the appeal may be dismissed, or the stay dissolved,
as the case requires. (Id. § 2580.) In the other cases in which the
court or a judge fixes the amount of the undertaking, there seems to
be no provision made for obtaining increased security.

SECTION XI.
Liazitiry oF SURETIES UPON AN UNDERTAKING GIVEN ON APPEAL.

The liability of a surety upon an undertaking given upon an
appeal, is measured by the terms of his contract, and will not be
extended by construction or implication. (Wood v. Fisk, 63 N. Y.
245.)

The sureties in an undertaking given on an appeal to the Gene-
ral Term, conditioned that the appellant will pay all costs and dam-
ages which may be awarded against him on such appeal, not exceed-
ing asum specified, are not liable for the costs of an appeal taken by
their principal to the Court of Appeals from a judgment of affirm-
ance of the General Term. (Hinckley v. Kreitz, 58 N. Y. 583.)
So where an appeal is taken to the Court of Appeals from an order
of the General Term reversing a judgment and granting a new trial,
and on the appeal the order of the General Term is affirmed and
judgment absolute is directed against the appellant, the sureties in
the undertaking given to perfect the appeal are liable only for the
costs of the appeal to the Court of Appeals, and not for all the costs
in the action. (Burdett v. Lowe, 85 N. Y. 241; Post v. Doremus,
60 N. Y. 371.) But where the sureties in an undertaking given
upon appeal to the General Term undertake that if the judgment
is affirmed their principal will pay its amount, the reversal of the
judgment by the General Term does not discharge them from
liability upon their undertaking, if on appeal to the Court of Appeals
the judgment of the Trial Term is affirmed and that of the General
Term is reversed. (obinson v. Plimpton, 25 N. Y. 484; Richard-
son v. Kropf, 47 How. 286; 60 N. Y. 634; Gardner v. Barney,
24 How. 467.) So where the judgment of a justice of the peace is
Liasinity or Sureris on APPEAL. 113

 

Liability of sureties upon an undertaking given on appeal.

 

reversed upon appeal to the County Court, but on appeal to the
Supreme Court the judgment of the County Court is reversed and
that of the justice is attirmed, with costs, the undertaking given on
the first appeal, conditioned that if judgment is rendered against
the appellant and execution thereon is returned unsatistied in whole
or in part the obligors will pay the amount unsatistied, binds the
sureties not merely for the amount of the judgment in the County
Court, but also for the amount recovered in the Supreme Court.
(Smith v. Crouse, 24 Barb. 433; Mumerton v. Hay, 65 N. Y. 380.)
It appears to be settled that the yadgment which the sureties under-
take to pay, is the one finally rendered against the appellant on the
appeal. (Id.; Lowry v. Tew, 25 Hun, 257; Letson v. Dodge, 61
Barb. 125.) And it has been uniformly held that an undertaking
given by a party appealing froma judginent of a justice of the
peace in an action of replevin, extends to all the proceedings and
adjudications in the same action, through every court to which it
may be carried by appeal, in case the party giving the undertaking
is finally defeated. (Letson v. Dodge, 61 Barb. 125; Zraver v.
Nichols, 7 Wend. 434; Ball v. Gardner, 21 Wend. 270; Zibbles v.
O’ Conner, 28 Barb. 5388 ; Bennett v. Brown, 20 N. Y. 99.)

Where a defendant, appealing from a judgment in ejectment,
gives an undertaking to stay proceedings in the form prescribed by
section 1381 of the Code of Civil Procedure, containing, among other
things, a provision that he will not, while in possession of the prop-
erty, commit, or suffer to be committed, any waste thereon, and on.
affrmance of the judgment by the General Term, appeals to the
Court of Appeals, giving a new undertaking, the sureties in the
undertaking given on the appeal to the General ‘l'erm are liable for
any waste committed either during the pendency of the appeal to
the General Term or to the Court of Appeals. (Church v. Simmons,
83 N. Y. 261.)

In certain cases a surety who has signed an undertaking on
appeal never becomes liable thereon. Ifthe undertaking given to
perfect an appeal goes beyond the requirements of the Code, so
much of the obligation as is in excess, unless a consideration there-
for can be shown aliunde to exist, is without consideration and
cannot be enforced. (Post v. Doremus, 60 N.Y. 371.) Where
the statute requires two sureties to an undertaking to stay proceed-
ings upon appeal, a surety executing such undertaking upon the
express een that the signature of another surety shall be
114 . New Trrars anv: APPEALS.

 

Discharge of sureties from liability.

 

obtained, is not liable upon the contract unless the condition as to
its execution is complied with. (Grimwood v. Wilson, 66 How.
283.)

Discharge of sureties from liability.—Where an undertak-
ing has been given to procure a stay of proceedings upon an appeal,
the sureties have been excepted to by the respondent, and have
failed or refused to justify, the failure renders the undertaking
_ wholly inoperative as against them, and terminates their liability
thereon. (Lloffman v. Smith, 34 Hun, 485; Manning v. Gould,
90 N. Y.476; 64 How. 429; Code of Civil Pro. § 1335.) Where
the sureties on the undertaking become insolvent, and on motion of
the respondent, the appellant is required to file a new undertaking
within a specified time under penalty of having the judgment exe-
cuted asif no undertaking had been given, the issuing of execution
upon the judgment on failure of the appellant to give the new
undertaking, is an election to rely upon that remedy, and is a waiver
of all right to proceed upon the original undertaking. (Collens v.
Ball, 31 Hun, 187; Hemmingway v. Poucher, 98N. Y. 281. See
Code of Civil Pro. § 1808.) If after obtaining such order the
respondent remains passive, and takes no steps to enforce the judg-
iment or dismiss the appeal, the sureties upon the original undertak-
ing will remain liable until a new undertaking is executed and filed
in compliance with the order. (Collins v. Ball, 31 Hun, 187, 190.)

The discharge of the judgment debtor as a bankrupt pending an
appeal from the judgment does not release the sureties in an under-
taking given to obtain astay. (Anapp v. Anderson, 71 N. Y. 466.)
Nor is the liability of the sureties affected by a change of parties
during the pendency of the appeal. (Code of Civil Pro. § 815.)
Nor are the sureties discharged from liability by a change in the law
in respect to the damages which may be awarded upon the appeal.
(Horner v. Lyman, 4 Keyes, 237.) Noris ita defense to the sureties
when sued upon an undertaking given to stay proceedings upon,the
judgment appealed from, that the undertaking recites a judgment
greater in amount than that actually entered, and the entry of the judg-
ment ata date preceding the actual entry. The sureties make the recit-
als and are bound by them. (Levi v. Dorn, 28 How. 217. See
Decker v. Judson, 16 N. Y. 489; Lill v. Burke, 62 N.Y. 111.)
Nor is it any defense to an action on the undertaking that by reason
of the neglect of the respondent to enforce it, the statute of limita-
Liasinity oF Surrries on APPEAL. 115

 

Limitation of actions upon undertaking given on appeal.
ep

tions had run against the co-surety, but not against the defendant,
and that he had thereby lost his right to contribution. (Staples v.
Gokey, 34 Wun, 289.) Nor is it any defense to the action that the
undertaking did not provide that the sureties would pay the amount
of the judgment if the appeal was dismissed as well as in case the
judgment should be affirmed. (Id.) Nor is it any defense to an
action upon an undertaking given by executors to stay the execution
of a judgment against them in their representative capacity, that
sufficient asscts did not come into their hands to pay the judgment.
( Yates v. Burch, 87 N. Y. 409; 13 Hun, 622.) If that fact exists,
the executors should apply to the court for an order limiting the
amount of security under the provisions of section 1312 of the
Code; and if they fail to do this, and give security for the full
amount, this will be deemed an admission of assets. (See Yates v.
Burch, 18 Hun, 622; AMills v. Forbes, 12 How. 466.)

Satisfaction of the judgment, affirmed in the Court of Appeals,
discharges the sureties in the undertaking given on the appeal.
(Gove v. Lawrence, 6 Lans. 89.) And if, after the sureties have
entered into an undertaking to stay proceedings pending an appeal,
the parties stipulate for an affirmance of the judgment, “upon the
condition that no execution shall issue upon the judgment to be
entered, under six months,” the agreement to delay execution releases
the sureties. (oss v. Ferris, 18 Hun, 210.) But the respondent is
not bound to exhaust his remedy upon the judgment, before enfore-
ing his undertaking, and the fact that before the appeal was taken,
the pla.ntiff had issued execution and made a sufficient levy is no
defense to an action upon the undertaking. (fZeebner v. Townsend,
8 Abb. 234.)

Limitation of actions upon undertakings given on appeal.
—The Code provides that an action shall not be maintained upon
an undertaking given upon an appeal taken to the Supreme Court
from an inferior court, to the General Term.of the same court, or
from an order made in a special proceeding, until ten days have
expired since the service upon the attorney for the appellant of a
written notice of the entry of a judgment or order affirming the
jodgment or order appealed from, or dismissing the appeal. Where
an appeal to the Court of Appeals from that judgment or order is
perfected, and security is given thereupon to stay the execution of
the judgment or order appealed from, an action shall not be main-
116 New Triats anp APPEALS,

 

Code Provisions,

 

tained upon the undertaking given upon the preceding appeal, until
the final determination of the appeal to the Court of Appeals. (Code
of Civil Pro. § 1309.)

ARTICLE VIII.

CURING DEFECTS IN PROCEEDINGS TO TAKE AN APPEAL, OR TO
STAY EXECUTION.

SECTION I.
Covr Provisions.

Where the appellant seasonably and in good faith serves the
notice of appeal, either upon the clerk or upon the adverse party, or
his attorney, but omits, through mistake, inadvertence, or excusable
neglect, to serve it upon the other, er to do any other act necessary
to perfect the appeal or to stay the execution of the judgment or
order appealed from, the court in or to which the appeal is taken,
upon proof by affidavit of the facts, may, in its discretion, permit
the omission to be supplied, or an amendment to be made, upon such
terms as justice requires. (Code of Civil Pro. § 1803.) The section
cited applies to appeals from Surrogate’s Courts. (Id. § 2575.)

On an appeal from a J ustice’s Court, where the appellant seasonably
and in good faith serves the notice of appeal upon either the justice
or the respondent, but omits through mistake, inadvertence, or excus-
able neglect to serve it upon the other, or to do any other act neces-
sary to perfect the appeal, the appellate court, upon proof by affidavit
of the facts, may, in its discretion, permit the omission to be supplied,
or an amendment to be made, upon such terms as justice requires.
(Id. § 3049.)

The Code also provides, generally, that where a proceeding taken
by a party fails to conform toa provision of the Code, the court
may, in its discretion, and upon such terms as justice demands,
permit au amendment thereof to conform it to the provision. (Id.
§ 724.) This section applies to all courts of record. (Id. § 3347,
subd. 6.)

The court may, upon trial, or at any other stage of the action,
before or after judgment, in furtherance of justice, and on such terms
as it deems just, amend any process, pleading or other proceeding, by
Amenpine Norice on APPEAL. 117

 

Amending notice of appeal.

 

adding or striking out the name of a person as a party, or by correct-
ing a mistake in the name of a party, or a mistake in any other
respect. And in every stage of the action the court must disregard
an error or defect in the pleadings or other proceedings which does
not affect the substantial rights of the adverse party. (Id. § 723.)
This section applies to all courts. (Id. § 3347, subd. 6.)

The language of sections 1303 and 3049, above cited, is very com-
prehensive, and was intended to prevent all injury to appellants
arising from mere technical variances or omissions. Any act on the
part of the appellant which constitutes a step in the proceeding to
appeal, and which evinces his intention in good faith to perfect aud
prosecnte his appeal, is a sufficient ground for an amendment.
(Gutbrecht v. Prospect Park & Coney Island R. R. Co., 28 Hun,
497.)

SECTION II.
Amenpine Notice or APPEAL.

A notice of appeal cannot be amended where the effect of the
amendment will be to extend the time to appeal. (See ante,
p- 59.) In other words, a party will not be permitted, after the
expiration of the statutory time, to substitute for the appeal which
he has taken another and different appeal which he has not taken,
even though the party intended at the outset to take the appeal
which he seeks to have substituted. Thus a notice of appeal from
an order bearing a specified date cannot be amended by substituting
the date of an earlier order instead of the date of the order appealed
from; nor can a notice of appeal froin a judgment be so ameaded as
to include an appeal from an order denying a new trial, or vice versa;
nor can a notice of appeal from a judgment of a justice of the peace
on questions of law be so amended as to give the appellant a new
trial in the appellate court. (Call v. Slack, 26 Hun, 646.)

But a notice of appeal, when actually given in due season, may
be amended as to particular defects which do not destroy its sub-
stantial character. (Fry v. Bennett, 16 How. 385, 892; 2 Bosw.
684.) Where a.party, who has succeeded to the interest of a deceased
plaintiff, appeals in his own name instead of in the name of the
original plaintiff, from an order refusing to revive and continue the
action, the title, if defective, may be amended by changing it to the
original title of the action. (McLacklin v. Brett, 27 Hun, 18.)
118 New Trrats anp Appears.

5 7

Curing defects in undertaking.

M.
*

Where the notice is signed “ of counsel” instead of by attorney, the
defect may be cured. (Seaman v. McReynolds, 8 Jones & Sp. 545.)

And an omission to subscribe a notice of appeal from a justice’s
judgment may be supplied. (G@utbrecht v. Prospect Park & Coney
Island R. I. Co., 28 Hun, 497; and see Burroughs v. Norton, 2
Hun, 550; 48 How. 132.)

Where a stipulation for judgment absolute is necessary and has
been omitted, it may be supplied. (Jfott v. Lansing, 5 Lans. 516.)

A failure to pay the costs and return fee on appeal from a
justice’s judgment may also be supplied. (See Eldridge v. Under-
hill, 17 Hun, 241; Code of Civil Pro. § 3049.)

SECTION III.
Curtine Derscts In UNDERTAKING

The Code provides generally that where an undertaking required
by statute to be given by a person to entitle him to a right or
privilege, or to take a proceeding, is defective, the court, officer or
body that would be authorized to receive it, or to entertain a pro-
ceeding in consequence thereof if it was perfect, may on the appli-
cation of the persons who executed it, amend it accordingly, and it
shall thereupon be valid from the time of its execution. (Code of
Civil Pro. § 780.) Under the section cited the court may, on the
application of the sureties, strike out of an undertaking a provision
making them liable for the amount of the recovery, where it appears
that the undertaking was intended to secure only the costs of the
appeal. (O’Suddivan v. Connors, 22 Iinn, 1387.) Where an undertak-
ing is in the form necessary to stay execution, but the case is one in
which security is necessary to perfect the appeal, and that security
has not been given, the defect may be supplied. ( Wélson v. Allen,
3 How. 369.) And where the security has not been given, in reli-
ance upon an order of the court dispensing therewith, the neglect is
excusable, and the omission may be supplied. (Architectural Iron
Works v. City of Brooklyn, 85 N. Y. 652. See Leese v. Boese, 92
N. Y. 632.) An undertaking given as upon appeal from one order,
where the appeal is from two orders, nay be amended. (Schermer-
horn v. Anderson, 1N. Y. 480.) <A defect in an affidavit of justi-
fication may besupplied. (People v. Tarbeld, 17 Ilow. 120.) And
so of a failure to have the undertaking approved in a case where
Procerpines To opTAIn AMENDMENT, &c. 119

 

Proceedings to obtain amendment, ete.

 

approval in the first instance is necessary (see Beach v. Southworth,
9 Barb. 173.) Whena party in good faith gives notice of appeal,
and procures sureties, which he deems sufficient, he may be said to
have omitted to give the undertaking “ through mistake, inadvert-
ence or excusable neglect,” and he may be relieved under section
1303 of the Code. (Wheeler v. Millar, 61 Tow. 396.)

SECTION IV.
ProcrEDINGs To OBTAIN AMENDMENT, ETC.

Where a party’s proceedings to take and perfect an appeal, ete.
are defective,—for example, when he has allowed the term within
which to give an undertaking to expire,—he cannot obtain relief
through an ew parte order of a judge. The relief can only be
granted by the court, and the respondent is entitled to notice.
( Wheeler v. Millar, 61 How. 396.) The Code does not, however,
contemplate a formal motion at a Special Term in every instance.
The appellate court may, upon the appeal, grant the same relief that
could have been obtained by a motion tothe court below. (Arnoux
v.. Homans, 32 How. 382.) Thus, it is competent for the Court of
Common Pleas to permit defects in an undertaking on appeal from
a judgment of the city court of New York to be remedied. (Hatz
v. Kuhn, 9 Daly, 172.) Nor is it necessary to give formal notice of
the application if the respondent is fairly apprised that the relief
may be asked for. Leave to furnish an undertaking to perfect .an
appeal to the Court of Appeals may be granted on a motion to
strike the cause from the calendar of that court (Architectural
Lron Works v. City of Brooklyn, 85 N. Y. 652); or on a motion to
dismiss the appeal. (Leese v. Boese, 92 N. Y. 632.)

An application for leave to file an undertaking nune pro tune
is addressed to the discretion of the court. (Afils v. Thursby, 11 How.
129; see Smith v. Heermance, 18 How. 261.) Where an undertak-
ing served with the notice is rejected, and the time to appeal has
expired, the appellant should apply for leave to file and serve a new
undertaking, nunc pro tune. (Ritter v. Krekeler, 44 How. 445.)

Lackes may defeat an application to cure defects in taking an
appeal or giving an undertaking. (See Parker v. McCunn, 9
Week. Dig. 245.)

Where the appellant applies for leave to amend a defective
120 New Trrars anp APPEALS.

 

After the trial of specific questions of fact by a jury.

 

undertaking already given he should first obtain the consent of the
sureties. The court cannot amend the undertaking without such
consent. (Langley v. Warner,1 N. Y. 606.) This difficulty may,
of course, be obviated by obtaining leave to execute and by execut-
ing a new undertaking.

An application by the sureties in an undertaking given upon an
appeal from the Supreine Court to the Court of Appeals, for leave
to strike out redundant portions of the undertaking, is properly
made at a Special Term of the Supreme Court. (O'Sullivan v.
v. Connors, 22 Hun, 137.)

The general discretion of the court to relieve upon such terms
as justice requires, is controlled by law. (Wheeler v. Millar, 61
How. 396.)

ARTICLE IX.

MODE OF BRINGING QUESTIONS BEFORE THE APPELLATE COURT
FOR REVIEW.

SECTION I.

Move or optarninc A Review or Quzstions or Facr.

 

After a trial of all the issues by a jury.—Where the issues in
an action pending in the Supreme Court, in a Superior City Court,
in the City Court of New York, or in a County Court, have been tried
by a jury, and a verdict has been rendered, the only mode of
obtaining a review upon the facts by an appellate court is by a
motion for a new trial, and by appeal from the order made upon
the motion, if the motion for a new trialis denied. (Ante, p. 45.)

After the trial of specific questions of fact by a jury.—
Where one or more specific questions of fact arising upon the issues
in an action triable by the court have been submitted toa jury ina
case where neither party is entitled to a jury trial asa matter of right,
the only manner in which the merits of the part of the controversy
submitted to the jury can be re-examined or reconsidered is by
a motion for a new trial under the authority of section 1003 of the
Code. (See Chapin v. Thompson, 80 N. Y. 275; 23 Hun, 12; 89
N. Y. 270; Ward v. Warren, 15 Hun, 600; 82 N. Y. 265;
Brown v. Becht, 85 Hun, 434.) If the motion is not made, the

‘
Mobs or ostainine 4 Review or Questions or Facr. 121!

 

After the trial of specific questions of fact by a jury.

 

parties will be deemed to have acquiesced in the verdict. (Ward v.
Warren, 15 Tun, 600; Chapin v. Thompson, 23 Hun, 12, 15.) If
the motion is made and denied, the denial will not preclude the
judge from disregarding the findings of the jury when giving final
judgment. (Ward v. Warren, 15 Hun, 600.) But no appeal upon
the merits can be taken from the order denying the new trial in such
a case, as subdivision 2 of section 1347 of the Code of Civil Proced-
ure provides “that where specific questions of fact, arising upon
the issues, in an action triable by the court, have been tried by a
jury, pursuant to an order for that purpose, as prescribed in section
971 of this act, an appeal cannot be taken from an order, granting
or refusing a new trial, upon the merits.” The effect of this sub-
division is to limit and restrict the consideration of the effect of the
evidence to the jury and the court before which the application to
set aside the verdict, and for another trial, should be made, and to
that extent to prohibit a review by appeal. But it does not prevent
the review, by appeal, of rulings made by the justice presiding at
the trial before the jury, by which proper evidence was rejected, or
improper evidence received, or unsound rules applied to the consid-
eration of evidence in the submission of the case to the jury, pro-
vided a motion for a new trial has been seasonably made. (Bowen
v. Becht, 35 Hun, 434.) In the case cited, this was expressly held
by the General Term upon an appeal from a judgment rendered.
at the Special Term in an equity action, and from an order denying
a motion for a new trial therein. This construction of the statute
seems to be at variance with dicta in certain earlier cases, to the
effect that no separate appeal can be taken from the order denying
a new trial of questions submitted to a jury under section 971 of
the Code, but that on appeal from the final judgment and the order
denying the new trial, the case would be open for full examination
on the evidence. (See Ward v. Warren, 15 Hun, 600, 603;
Chapin v. Thompson, 23 Hun, 12, 15.)

Where a jury trial of specific questions of fact is demanded
and ordered as a matter of right, the only mode of obtaining a
review of the findings of the jury is by a motion for a new trial of
the questions so submitted, and by appeal from the order if the
motion is denied, as the findings of the jury upon each question
stated for trial is conclusive in the action unless the verdict is set
aside or a new trial is granted. (Code of Civil Pro. § 970.) An
order granting or refusing a new trial in such case may be reviewed
122 New Triats ann APPEALS.

 

Upon a challenge to a juror—After a trial by the court or referee,

 

upon the merits. (See Code of Civil Pro. § 1347, subd. 2.) If an
appeal is taken to the General Term from an order denying the
motion for a new trial, and the order is there affirmed, a subsequent
appeal from the final judgment will bring up for review only the
proceedings to take the final judgment or upon which the final
judgment was taken, including the hearing or trial of the other issues
in the action. (Id: § 1350.)

Upon a challenge to a juror.—Lither party may except to the
determination of the court upon the triai of a challenge to a juror, or to
a panel or array of jurors, and such determination may be reviewed
upon a question of fact, or a question of law, or both, as where
an issue of fact presented by the pleadings is tried by the court,
except that if other exceptions are taken to rulings made after the
jury is empanelled, the exception to the determination of the chal-
lenge must be heard at the same time, and tle case must contain the
matter necessary to present it upon the facts, or the law, or both.
(Code of Civil Pro. § 1180.)

After jury trial of issue of fact in a special proceeding.
—A trial by jury of a controverted question of fact arising in
a special proceeding for the disposition of the real property of
a decedent (see Code of Civil Pro. § 2547), can be reviewed, in
the first instance, only upon a motion for a new trial (Id. § 2548),
and an appeal may be taken from an order made upon the motion, as
if the order had been made in an action, and with like effect. (Id.
§ 2549.)

After a trial by the court or referee.—Where an action
pending in the Supreme Court, a Superior City Court, or in the
City Court of New York, has been tried before a referee, or by the
court without a jury, a review of the facts may be obtained by taking
an appeal from the final judgment rendered in the action to the
General Term of the same court. (Code of Civil Pro. §§ 1346, 3188.)
No exception to a ruling upon a question of fact is permitted in any
case, save in the single case of an exception to the determination of
the court upon a challenge to a juror or panel of jurors (Id. § 992),
and no exception to such ruling is necessary to present the facts to
the appellate court for review. (J?oe v. Hoe, 14 Hun, 612; Porter
v. Smith, 35 Hun, 118; Garjield v. Kirk, 65 Barb. 464; Magie v.
Mopk or oBTAINING A REVIEW oF QuesTiuns oF Fact. 123

 

After a trial before a surrogate—After a trial before a justice of the peace,

 

Baker, 14 N. Y. 485, 488; Mayor, etc, of WN. Y. v. Erben, 24
How. 358; Lefler v. Field, 50 Barb. 407; Hatch v. Fogerty, 7
Rob. 488 ; Mead v. Smith, 28. Hun, 639 ; Metropolitan Gas-Light Co.
v. Mayor, 9 Hun, 706; Dainesse v. Allen, 45 How. 430; 4 Jones
& Sp. 98; 14 Abb. N.S. 363.)

The facts are brought before the appellate court for review by a
case, signed and settled by the judge or referee before whom the
trial was had, containing the evidence bearing upon the conclusions
of fact intended to be reviewed, and also the exceptions taken by the
appellant to rulings upon questions of law, if he desires to review
such questions in connection with the facts. (Id.; Code of Civil
Pro. § 997.)

After a trial before a Surrogate.—A decree rendered by
a Surrogate upon the trial of an issue of fact before him may be
reviewed upon the facts upon a case made and settled by the Surro-
gate in the manner prescribed by law for making and settling a case
upon an appeal in an action. (Id. § 2576.)

After trial before a justice of the peace.—Questions of
fact may be reviewed upon an appeal froma judgment rendered in
a Justice’s Court, or in any other court to which the provisions of the
Code relating to proceedings before a justice of the peace are made
applicable. If a new trial is demanded in the notice of appeal, there
is no “review ” in the ordinary sense of the term, but a trial de novo.
(Id. § 3071.) If a new trial isnot demanded in the notice of appeal,
the facts may be reviewed by the appellate court (Id. § 3063), and
the evidence will be presented by the return of the justice which
takes the place of a case. (Id. $$ 38053, 3063.) If the appeal is
founded upon “ an error in fact,” the error may be presented by afli-
davits or by the testimony of witnesses, or in both methods. (Id.
§ 3057.)
124 New Triats anp APPEALS.

 

Mode of presenting questions of law for review.

 

SECTION IL
Mopr vs Presentine Quzsrions or Law ror Review.

An errornous ruling upon a question of law is ordinarily presented
to the court for review upon appeal by an exceptiun thereto, taken
either at the time the ruling is made, or within such time thereafter
as the statute prescribes or the court or judge allows, and either by
filing the exception in the clerk’s office, to be inserted in or annexed
to the jndgment-roll, and thereupon to become a part of the papers
upon which an appeal from the judgment is heard (Code of Civil
Pro. §§ 994, 998), or by inserting it in a case, settled and signed as
prescribed by law and the rules of practice (Id. § 997), as the nature
of the case requires.

An exception may be taken to the ruling of the court or of a
referee upon a question of law arising upon the trial of an issue of
fact (Id. § 992); and upon the trial of an issue of fact by a referee
or by a court without a jury, a refusal to make any finding whatever
upon a question of fact, where a request to find thereon is seasonably
made by either party, or a finding without any evidence tending to
sustain 2, is a ruling upon a question of law within the meaning
of this provision, and an exception may be taken. (Porter v.
Smith, 835 Hun, 118; Afead v. Smith, 3 Civ. Pro. R. 171; 28 Hun,
639 ; Sickles v. Flanagan, 79 N. Y. 244.) But an exception to a
finding of fact (ante, p. 122), or an exception to a refusal to find a
fact as requested, is unauthorized. Whether error has been commit-
ted in this respect is to be determined in the Supreme Court, upon
the evidence and requests to find facts. (Porter v. Smith, 35 Hun,
118.) An exception may also be taken toa ruling by a surrogate
upon a question of fact, including a finding or refusal to find upon a
question of fact in a case where such an exception might be taken
to the ruling of the court if the issue of fact was being tried in the
Supreme Court. (Id. § 2545.)

No exception is necessary to present to an appellate court an
erroneous ruling upon a question of law made upon the trial of an
action before a justice of the peace (J2oe v. Hanson, 5 Lans. 304) ;
or before a court governed by the rules of practice established for
Justice’s Courts. Such courts are not embraced in the scope of the
Move or Presenting Questions or Law ror Review. 125

 

Mode of presenting questions of law for review.

 

provision of the Code relating to exceptions. (See Code of Civil
Pro. § 3347, subd. 7.)

An omission to take an exception to a ruling of the trial court
upon a question of law, is not necessarily fatal to a review of such
ruling by the General Term of the same court, in case the error
committed is of sufficient importance to justify or demand a depart-
ure from the usual practice. The provisions of the Code as to
taking exceptions to rulings made during the trial, or to conclusions
of law set forth in the report of a referee or decision of the court,
and as to the manner of bringing such exceptions before the General
Term for review, are inserted as a rule of procedure and practice,
and as a convenient way of bringing the attention of the court to
mistakes and errors claimed to have occurred upon the trial; but
there is no statutory provision or line of authorities prohibiting the
General Term from correcting any mistake or error which may have
been committed by the trial court, though no exception was taken
distinctly pointing out the alleged error. On the contrary, it has
been held that the General Term has the power and that it is its duty
to inspect the whole record and correct every substantial error which
is disclosed by the examination, although vot specifically pointed out
by an exception. (See Aandeville v. Marvin, 30, Hun, 282; Ham-
alton v. Third Avenue R. R. Co.,53 N.Y. 25; Maier v. Homan,
4 Daly, 168; Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506;
Lattimer v. Hill, 8 Hun, 171; Ackart v. Lansing, 6 Hun, 476.) This
power arises from the fact that the cause is still in the court where
it originated; that the General Term in reviewing the judgment of
the Trial Term is not, strictly speaking, exercising appellate juris-
diction ; and that in the absence of any restrictive statute the General
Terin has all the power of the Trial Term. (Mandeville v. Marvin,
30 Hun, 282. See also, Syracuse Savinys Bank v. Syracuse, ete.,
Z?. I?. Co., 88 N.Y. 110.) But the absence of an exception will be
fatal toa review by the Court of Appeals (Standard Oil Co. v.
Amazon Ins. Co., 719 N. Y. 506; Jarvis v. Driggs, 69 N. Y. 148;
Keogh v. Westervelt, 66 N. Y. 636) ; even though the parties stipulate
that rulings may be reviewed to which exceptions have not formally
been taken. (Briggs v. Waldron, 83 N. Y. 589.) The practice on
appeal from the General Term of the City Court of New York to
the Court of Common Pleas is substantially the same as on appeal
from the General Term of the Supreme Court to the Court of
Appeals (See DcLHteere v. Little, 7 Abb. N.C. 874; 8 Daly, 167;
126 New Triacs anp Apprats.

 

How exceptions must be taken to be available,

 

Farley v. Lyddy, 8 Daly, 514), and an exception is necessary to pre-
sent any question of law for review in the Court of Common
Pleas. (Howe v. Conley, 2 Civ. Pro. R. 424.)

An exception may properly be taken to the refusal of the court
to postpone a trial on account of absence of a material witness
(Gallaudet v. Steinmetz, 6 Abb. N. C. 224; 13 Jones & Sp. 239;
Tribune Association v. Smith, 8 Jones & Sp. 251; Gregg v. Howe,
5 Jones & Sp. 420. But see Brooklyn Oi Works v. Brown, 38
Tlow. 451; 7 Abb. N. 8. 382); to a ruling of the court as to the
order in which counsel shall address the jury (lurray v. New York
Life Ins. Co., 85 N. Y. 236; 9 Abb. N.C. 309; Millerd v.
Thorn, 51 N. Y. 402. Sce Trial Practice, pp. 170, 238); to
rulings of the court admitting or rejecting evidence (See Trial
Practice, p. 208); to a refusal to dismiss the complaint for insuffi-
ciency, where no application to amend is made (TYovker v. Arnoua,
76 N. Y. 897); toa nonsuit (Zrain v. Holland Purchase Ins. Co.,
62 N. Y.598; Trustees of Hast Campton v. Kirk, 68 N. Y. 459);
to the charge given to the jury; or to the refusal of the court to
charge as requested (See Trial Practice, p. 239); or to any other
decision of the court upon the trial involving a question of law and
legal right.

SECTION IIL.
How ExcrprioNs MUST BE TAKEN TO BE AVAILABLE.

Jo rulings upon the trial.—The office of an exception,
where the trial is by jury, isto point ont errors committed by the
court during the progress of the trial. (J/atthews v. Meyberg, 63
N. Y. 656.) For the purpose of taking an exception, a trial by
jury is regarded as continuing until the verdict is rendered. (Code
of Civil Pro. § 992.) An exception taken toa ruling made after
the verdict is rendered will present no question for review. (fat-
thews v. Meyberg, 63 N. Y. 656.)

No exception can be taken to a ruling upon a question of fact
unless it be to the determination of the court upon a challenge to a
juror or panel of jurors. (Code of Civil Pro. § 992.) This prohi-
bition is general and applies to rulings upon trials by juries, by the
court, or by areferee. (Mead v. Smith, 28 Hun, 639.)

An exception to a ruling made during the progress of the trial
must be taken at the time when the ruling is made, unless it is
How Excrrtions MUST BE TAKEN TO BE AVAILABLE. 127

 

Ruling made after the cause is submitted.

 

taken to the charge given to the jury, in which case it must be taken
before the jury have rendered their verdict. (Code of Civil Pro. §
995.) At the time it is taken it must be reduced to writing by the
exceptant, or entered in the minutes. (Id.) Where the jury have
returned into court for instructions during the absence of counsel,
an exception to the instructions then given cannot be taken by the
absent counsel after verdict and the adjournment of court. (Corn-
ish v. Graff, 7 Civ. Pro. R. 204.) If the trial is by the court with-
out a jury, or by a referee, the exception is entered in the minutes ;
or if the trial is at the Circuit and a stenographer is in attendance,
the ruling and exception are noted by him, and the entry in his
notes is usually deemed an entry in the minutes. (See Code of
Civil Pro. § 1007.)

It is the duty of the party aggrieved by a ruling of the court
or referee to see to it that his exception is entered in the minutes so
as to be available on appeal, and also that the matter upon which
the ruling is based is also available. Thus, if party applies for a
postponement of the trial upon a mere oral statement, without read-
ing affidavits, and the motion in this form is entertained, the party
aggrieved by the decision of the court should see to it that the
statements are entered in the record as well as his exception to the
ruling. (See Gregg v. Howe, 5 Jones & Sp. 420; Trial Practice,
156.)

Rulings made by a surrogate during the progress of a trial of an
issue of fact before him, must be excepted to in the same manner as
if the cause was pending in any other court of record. (See Code
of Civil Pro, § 2545.)

Rulings made after the cause is submitted.—Where an
issue of fact is tried by a referee or by the court without a jury, the
determination of the questions of law embraced in the issue is not
made in the presence of the parties,and an exception to the rul-
ing at the time it is made, is thereby rendered impossible. The
Code therefore provides that where an issue of fact is tried by a
referee or by the court without a jury, an exception to a ruling
upon a question of law, made after the cause is finally submitted,
must be taken by filing a notice of the exception in the clerk’s
office, and serving a copy thereof upon the attorney for the adverse
party. The exception may be so taken at any time before the expira-
tion of ten days after service upon the attorney for the exceptant, of
128 New Trrats anp APpprats.

 

Ruling made after the cause is submitted.

 

a copy of the decision of the court, or report of the referee, and a
written notice of the entry of judgment thereupon. (Code of Civil
Pro. § 994.) The sufficiency of a notice of the entry of judgment
to operate as a limitation of the time to appeal has been noticed
elsewhere. (Ante, p. 57.)

If the court or referee makes a finding of fact without any evi-
dence tending to sustain it, or if the court or referee refuses to make
any finding whatever upon a question of fact after having been
seasonably requested to find thereon, it seems that an exception is
necessary to bring the ruling before the appellate court for review.
(See Code of Civil Pro. §§ 992, 993 ; Mead v. Smith, 28 Hun, 639 ;
Onderhill v. Nichols, 8 Week. Dig. 276.) The exception will be
taken in the same manner as to any other ruling upon a question of
law made after the cause is submitted. If there is some evidence to
sustain the finding, and the evidence upon the question is conflict-
ing, no exception is necessary to enable the General Term to review
the evidence for the purpose of determining whether the finding is
against its weight. (Mead v. Smith, 28 Hun, 639.)

An exception to a ruling of a surrogate, made after the cause is
finally substituted, may be taken by filing a notice of the exception
in the surrogate’s office, and serving a copy thereof on the attorney
for the adverse party, at any time within ten days after service
upon the attorney for the exceptant of the decree of the surrogate
and written notice of the entry thereof. The general provisions of
the Code as to the manner and effect of taking an exception to a
ruling of the court upon the trial of an issue of fact without a jury,
and the settlement of a case containing the exceptions, apply to
similar proceedings in a Surrogate’s Court. (Code of Civil Pro.
§ 2545.) But there is this distinction. In the Supreme Court, and
other courts of kindred jurisdiction, requests for findings upon
questions of fact or law must be made and acted upon before the
report of the referee or decision of the court is rendered (Code of
Civil Pro. § 1023), and the making of subsequent findings of fact or
conclusions of law upon the settlement of the case is not allowed.
(Rule 82; Palmer v. Phenix Ins. Co., 22 Tun, 224; Gormerly v.
McGlynn, 84 N. Y. 284. See also Gardiner v. Schwab, 34 Jun,
582.) In the Surrogate’s Court either party may upon the settle-
ment of the case request a finding upon any question of fact or a
ruling upon any question of law; and an exception may be taken to
such finding or ruling or to a refusal to find or rule accordingly, and
Uron Wuat Papers tax APPEAL WILL BE Lnarp. 129

 

Upon an appeal taken to the Court of Appeals.

 

npon appeal from the decree or order of the Surrogate each decision
to which an exception it so taken is brought up for review by each
court to which the appeal is carried. (Code of Civil Pro. § 2545 ;
see Waldo v. Waldo, 32 Han, 251.) It would seem that the requests
to find made upon the settlement of the case are the only ones the
Surrogate is bound to regard, although other réquests may be sub-
mitted and considered. (Hartwell v. McMaster, 4 Redf. 389.)

Extension of time to make and file exceptions.—Thlie time
in which to file exceptions to rulings made by the court or referee
after the cause has been finally submitted may be extended upon
an application made before the time to file exceptions has expired
(Code of Civil Pro. § 781), or an order may be obtained after the
expiration of the time allowing the appellant to file exceptions
nunc pro tune. (Id. § 783; Douglass v. Douglass, 7 Hun, 272;
Strong v. flardenburgh, 25 How. 438; Sheldon v. Wood, 14 How.
18; Coe v. Qoe, 14 Abb. 86; Bortle v. Mellen, 14 Abb. 228.) But
an extension of time to make a case will not extend the time to
take exceptions, (Hatch v. Kogerty,7 Rob. 488; Beach v. Gregory,
8 Abb. 73;1 Hilt. 201. See Salls v. Butler, 27 How. 133.)

The practice on an application for an extension of time to file
exceptions, or for an order allowing exceptions to be filed nunc pro
tunc, wi]] be substantially the same as on a motion for an extension
of time to make a case, and needs no separate discussion.

 

SECTION IV.
Uron Waar Parrers vue APPEAL WILL BE Hzarp.

Upon an appeal taken to the Court of Appeals.—Except
where it is otherwise specially préscribed by law, an appeal to the
Court of Appeals from a final judginent must be heard, upon a certi-
fied copy of the notice of appeal, of the judgment-roll, and of the
case, or notice of exceptions, if any, filed after the entry of judg-
ment. This copy is transmitted by the clerk of the court with whom
the notice of appeal is filed to the clerk of the Court of Appeals,
and is then tiled by the latter officer. (Code of Civil Pro. § 1315.)
A ease is made up by the appellant, consisting of a copy of this
return, the reasons of the court below for its judgment, or an affi-
davit that ine same could not be procured, together with an index to
130 New Triats anp ApP£ALs.

 

Upon an appeal taken to the Court of Appeals.

 

the proceedings, exhibits, depositions and other principal matters.
This includes every opinion in the cause at Special Term, as well as
at General Term, relating to the questions involved in the appeal.
(Rule 5, Ct. App.) This case is printed (Id. 6), copies are served
upon the attorney for the adverse party (Id. 7), and are furnished
to the judges upon the argument. (Id. 8.)

Where an appeal to the Court of Appeals from a judgment
rendered at a General Term of the court below upon a verdict sub-
ject to the opinion of the court has been perfected, a case containing
a concise statement of the facts, of the questions of law arising
thereupon, and of the determination of those questions by the Gen-
eral Term, must be prepared and settled by or under the direction
of the court below, and annexed to the judgment-roll. Au excep-
tion is not necessary to enable the Court of Appeals to review the
determination of a question of law arising upon the verdict. A
certified copy of the case must be transmitted to the Court of Appeals
instead of the case upon which the judgment of the court below was
rendered. (Code of Civil Pro. § 1339.) There can be no review in
the Court of Appeals unless a statement of the facts and the conelu-
sions of law is prepared and made a part of the record as above pre-
scribed. (Leecnmiller v. Skidmore, 59 N. Y. 661; Jaycou v. Cameron,
49 N. Y. 645; Essex County Bank v. Russell, 29 N. Y. 673.)

The “case” prepared for a review by the Court of Appeals is
often called the appeal-book. How this case is made up and
authenticated will be noticed more particularly hereafter.

"An appeal to the Court of Appeals from an order or part of an
order is heard upon a certified copy of the notice of appeal, of the
order and of the papers upon which the order was founded. (Code
of Civil Pro. § 1815; Rule 1, Ct. App.; Hobart v. Hobart, 85 N.Y.
637.) The case made by the appellant should consist of a copy of
this return (Rule 5, Ct. App.; fatter of Bailey, 85 N.Y. 629),
and of the opinion of the court below. (Rule 5; Hobart v. Hobart,
85 N. Y. 637.) It must not contain papers which were not before
the General Term. (Id.; /?eese v. Smyth, 95 N.Y. 649.)

If the appeal is from a determination of the Board of Claims, the
appellant must make and serve a case containing so much of the
evidence given before the board as may be necessary to present the
questions raised by the notice of appeal. (Laws of 1883, chap.
205, § 10.)

Where an appeal has been taken from a determination of the City
Urow Wuat Papers tor APPEAL WILL BE Hrarp. 131

 

-Upon appeal to the Supreme Court from an inferior court.

 

Court of New York to the Common Pleas, the judgment or order
of the appellate court upon the appeal is remitted to the court below
to be enforced according to law. (See Code of Civil Pro. § 3194.)
If a further appeal is taken to the Court of Appeals, the clerk of
the City Court transmits the necessary papers to the Court of
Appeals. (Id. § 3195.) The papers so transmitted will embrace
copies of the opinions of the judges by whom the appeal was decided
at the General Term of the City Court, if the appeal was from a
judgment, and the opinions filed in the Court of Common Pleas, and
the orders of and the cgi from that court made in the action.

(Rule 5, City Ct. a FY U4 Ss 7Y! [FL pse
Me Ch ser

Upon appeal to the Supreme Court from an inferior court.
—Except where it is otherwise specially prescribed by law, an appeal
to the Supreme Court from a final judgment of an inferior court
must be heard upon a certified copy of the notice of appeal, of the
judgment-roll, and of a case or notice of exceptions, if any, filed
after the entry of judgment. Where the appeal is taken from an order
or part of an order made either in an action or special proceeding
pending in an inferior court, it must be heard upon a certified copy
of the notice of appeal, of the order, and of the papers upon which
the order was founded, unless it is otherwise specially prescribed by
law. (Code of Civil Pro. § 1815.)

Where an appeal is noticed for the General Term, except in cases
of appeals from non-enuimerated motions, the appellant is required
to furnish the papers for the court, which consist of a copy of the
judgment-roll, together with a statement showing the time of the
commencement of the suit, and of the service of the respective
pleadings, the names of the original parties in full, the change
of parties, if any has taken place pending the suit, and to
this must be added the opinion of ‘the court below, or an affidavit
that no opinion in writing was given, or if given, that a copy could
not be procured. (Rule 41.)

Neither the provisions of the Code above cited, nor the language
of the rule are to be so literally construed as to compel the printing
and presentation of unnecessary and superfluous papers. What is
material to the proper action of the appellate court is enough.
( Weseman v. Wingrove, 85 N. Y. 353.)

An appeal from a decree or an order of a surrogate’s court must be
heard in the same manner as where an appeal is taken to the
132 New Triats anp AppPrats.

 

Upon an appeal to the General Term of the same court,

 

Supreme Court from a final judgment or an inferior court. (Code
of Civil Pro. § 2585.)

Upon an appeal to the General Term of the same court.—
An appeal to the General Term from a final judgment rendered in
the same court, must be heard upon a certified copy of the notice of
appeal, of the judgment-roll, and of the case or notice of exceptions,
if any, filed, as prescribed by the general rules of practice, after the
entry of judgment, and either before or after the appeal is taken. An
appeal from an interlocutory judgment rendered, or from an order
made in an action pending in the same court must be heard upon a
certified copy of the notice of appeal, and of the papers used before
the court or judge upon the hearing of the demurrer, application for
judgment, or motion, as the case requires. (Code of Civil Pro. §
1353.) The same rule applies to appeals to the General Term of
the City Court of New York from a final or interlocutory judgment
rendered in the same court or from an order made in an action pend-
ing therein. (Id. § 3190.) The rules of the City Court provide
that “on appeals from judgments and orders the appeal-book shall
be printed as prescribed by the rules of the Supreme Court, and
shall contain the opinion of the judge below, or the reasons given for
the decision filed or indorsed by him upon the papers; and if there
was no opinion or reason given and filed, that shall be made to appear
by certificate of the clerk of this court.” (Rule 3, City Ct. of N. Y.)
* Appeals from orders shall be heard upon printed papers consisting
of copies certified by the clerk of this court of all the papers used on
the motion and recited in the order as entered on said motion, the
opinion or decision of the court below.as provided by rule 3, the
order appealed from and the notice of appeal.” (Id. Rule 6.)

Where an appeal is taken from an order, all the papers upon
which the order was based should be before the General Term.
(Eldridge v. Strenz, 7 Jones & Sp. 295.) What those papers were
should appear from the recitals in the order. (See Rule 3.) If
the appeal is from an order denying an extra allowance, based in
part upon a remittitur from the Court of Appeals, such remittitur
should be before the General Term. (Hldridge v. Strenz, 7 Jones
& Sp. 295.) But it is not necessary to bring before the appellate
court a paper not material to the proper action of that court.
( Weseman v. Wingrove, 85 N. Y. 353.)

Aun appeal from an order confirming the report of arbitrators,
Upon wuat Parrers THE APPEAL WILL BE Hearp. 133

 

Upon appeal to the Common Pleas.

 

and from the judgment rendered thereon, must be based upon the
papers before the court at the time when such order was made and
such judgment directed. (Poole v. Johnston, 32 Hun, 215. See
Code of Civil Pro. § 2381.)

The papers to be furnished on enumerated motions are a copy
of the pleadings, when the question arises on the pleadings, or any
part thereof, of such parts only as relate to the questions raised by
the demurrer; a copy of the verdict, return or other papers on
which the question arises. (Rule 40.)

Where an appeal is noticed for the General Term of the
Supreme Court or of a Superior City Court, except in case of
appeals from non-enumerated motions, the appellant must furnish
to the court a copy of the judgment-roll, together with a statement
showing the time of the commencement of the suit, and of the ser-
vice of the respective pleadings, the names of the original parties
in full, the change of parties if any has taken place pending the
suit, and in addition, the opinion of the court below, or an affidavit
that no opinion in writing was given, or if given, that a copy could
not be procured. (Gen. Rule 41; Rule 4, Supr. Ct. of N. Y.)

If the appeal is from a judgment entered upon the report of a
referee, and the appellant is satisfied with the rulings made during
the trial, and with the facts found, but desires to review the referee’s
conclusions of law, and those only, the papers upon which the
appeai will be heard, are the notice of appeal and the papers consti-
tuting the judgment-roll proper ; that is, the summons, complaint,
answer, order of reference, report of referee, judgment, and the
exceptions to the report taken and filed before or after judgment.
No case containing the evidence, or any part thereof, is necessary to
a proper review. (Code of Civil Pro. § 998; Ferguson v. Hamil-
ton, 35 Barb. 427; Douglass v. Douglass, 11 un, 406.) But it
may be necessary to a compliance with the rule above cited that the
appeal-book should contain the introductory statement of the pro-
ceedings (Davie v. Van Wie, 1 N. Y. Sup. Ct. [T. & C.] 530), and
any opinion given by the referee assigning reasons for his conclu-
sions of law. (Warren v. Warren, 22 How. 142.)

Upon appeal to the Common Pleas from the City Court of
New York from a judgment rendered or an order made in the latter
court, the review must be had upon the same papers as would be
required if the appeal was to the Supreme Court from the judgment
[34 New Trias anp APPEALS.

 

Upon appeal to the County Court.

 

or order of an inferior court. (Code of Civil Pro. § 8192.) The
papers upon which such review will be had have been already
noticed. (Ante, p. 131.)

The rules of the City Court of New York provide that, “In case
of an appeal from a judgment of a General Term of this court to
that of the court of Common Pleas, copies of the opinions filed by
the judges by whom such appeal is decided shall in all cases be
annexed to and form part of the return upon such appeal.” (Rule 4,
City Ct. of N. Y.)

Where the appeal is taken to the Common Pleas from the judg-
ment of a District Court, it is heard upon the return of the justice
holding the court below in the same manner as an appeal is heard in
the County Court from a judgment of a justice of the peace when a
new trial is not demanded in the appellate court. (Code of Civil
Pro. § 3213.)

Upon appeal to the County Court.—Where an appeal is taken
to the County Court from a judgment rendered by a justice of the
peace, and a new trial is not demanded in the appellate court, the
appeal must be heard upon the original papers, or a certified copy
thereof. (Code of Civil Pro. § 3063.) These papers will be made
a part of the return of the justice, which must contain all the pro-
ceedings, including the evidence and the judgment. This return,
with the notice of the appeal, and the undertaking, if any, given to
stay the execution, will be filed by the justice with the clerk of the
appellate court. (Id. § 3053.)

Where a new trial in the appellate court is demanded in the
notice of appeal, the return will contain the summons, together
with each warrant of attachment, order of arrest, or requisition to
replevy, or execution granted by the justice in the action, with
proof of the service thereof; the pleadings or copies thereof; the
proceedings upon the trial ; and the judgment; with a brief state-
ment of the amount and nature of the claims litigated by the par-
ties. It will not contain the evidence or any part thereof, unless a
return of the evidence is required by a special order of the court.
(Id. § 8053.) The notice of appeal, and undertaking, if any, will be
annexed toand filed with the return. (Id.) Notwithstanding that
the appeal is taken fora new trial in the appellate court, a review
may be had upon questions of law raised in the court below and
presented by the return; as fully as though the appeal was taken
TRANSMISSION OF PAPERS TO THE APPELLATE Court. 135

 

Transmission of papers to the Appellate Court.

 

upon questions of law only. This of course would not include
errors committed upon the trial. (See Stevens v. Benton, 2 Lans.
156; 89 How. 13; Barton v. Wheeler & Willson Manufacturing
Co., 5 Week. Dig. 384.)

Where the justice is incapacitated from making a return, aftida-
vits or oral testimony may be received as to the evidence and other
proceedings taken, and the judgment rendered before the justice.
(Code of Civil Pro. § 3056.) So where error of fact is alleged, the
court may determine the matter upon affidavits, upon the examina-
tion of witnesses, or in both methods. (Id. § 3057.)

SECTION V.
Transmission OF Papers To THE APPELLATE CovRT.

When an appeal is taken from a final judgment to the Court of
Appeals or to the Supreme Court from an inferior court, the appel-
lant must within twenty days after it is perfected cause a certified
copy of the notice of appeal, of the judgment-roll, and of the case or
notice of exceptions, if any, filed after the entry of judgment, to be
transmitted to the appellate court by the clerk upon whom the notice
of appeal was served. Wherean appeal from an order or part of an
order is taken to the Court of Appeals, to the Supreme Court from
an inferior court, or in a special proceeding, the appellant must
within the same time cause a certified copy of the notice of appeal,
of the order, and of the papers upon which the same was founded,
to be transmitted to the appellate court, by the same clerk.
If the appellant fails to do so, the respondent may cause these
papers to be so transmitted, and he is entitled to tax the expense
thereof as a disbursement when he recovers costs. The clerk of
the appellate court must file the papers so transmitted, and, except
where it is otherwise specially prescribed by law, the appeal must
be heard upon them. (Code of Civil Pro. § 1315.) This provision
applies also to appeals to the Common Pleas from the City Court of
New York. (Id. § 3192.) And upon an appeal to the Court of
Appeals from the judgment or order made in the Common leas,
the necessary papers are transmitted to the appellate court by the
clerk of the City Court. (Id. § 31935.)

The return to the County Court upon an appeal from a judg-
ment of a justice of the peace must be made by thc justice render-
136 New Triats anp Apprats.

 

Transmission of papers to the Appellate Court.

 

ing the judgment, and is usually transmitted by him to the office of -
County Clerk.

Rule 2 of the Court of Appeals provides as follows : “The appel-
lant shall canse the proper return to be made and filed with the
clerk of this court, within twenty days after the appeal shall be per-
fected. If he fails to do so, the respondent may, by notice in writ-
ing, require such return to be filed within ten days after the service
of the notice, and if the return be not filed in pursuance of such
notice, the appellant shall be deemed to have waived the appeal ;
and on an affidavit proving that the appeal was perfected, and the
service of such notice, and a certificate of the clerk that no return
has been filed, the respondent may enter an order with the clerk dis-
missing the appeal for want of prosecution with costs ; and the court
below may thereupon proceed as though there had been no appeal.”

It isalso provided by Rule 3 as follows: “If the return made by
the clerk of the court below shall be defective, either party may, on
an affidavit, specifying the defect, apply to one of the judges of this
court for an order that the clerk make a further return without
delay.”

The return must be made by the clerk, and the parties cannot.
by stipulation make up a case for the court. (Dow v. Darragh, 92
N. Y. 537.) The court below or a judge thereof may extend the
time limited by law within which the papers must be transmitted to
the Court of Appeals, where the appeal is from a judgment rendered
at a General Term upona verdict subject to the opinion of the court,
if the appellant desires an extension to enable him to prepare and
procure the settlement of the case. (Code of Civil Pro. § 1839.)

Where an appeal is taken to the Common Pleas from the City
Court of New York or from a District Court, if the appellant does
uot procure the return to be made to the appellate court within
thirty days after service of the notice of appeal, the respondent may
serve a notice in writing, requiring the same to be done within ten
days thereafter, and that in default thereof he will apply to the Spe-
cial Term for an order dismissing the appeal ; and upon proof of
service of such notice, and a non-compliance therewith, such order-
will be granted, unless the court grant further time for the filing of
such return. (Rule 6, Com. Pl.) If the court below does not make
the return to the Common Pleas as prescribed by the Code, the
appellant may apply by motion toa judge at chambers to compel
such return by attachment. (Id. Rule 7.)
Questions ror Review. 137

 

When questions for review must be presented by a case,

 

A justice of the peace who has gone. out of office must neverthe-
less make a return on appeal to the County Court in the same man-
ner as if he remained in office. (Code of Civil Pro. § 3054.) If
the return made by the justice is defective, the appellate court may
direct him to, make further or amended return as often as is neces-
sary. The appellate court may compel the justice, by attachment,
to make and file a return or a further or amended return. The court
is always open for these purposes. Where the justice has removed to
another county of the State, the appellate court may-compel him to
make the return as if he was still in the county where the judgment
was rendered. (Id. § 3055.) If the justice has died, become a luna-
tic, absconded, removed from the State, or otherwise become unable
to make the return, affidavits or oral testimony may be received by
the appellate court as to testimony and other proceedings taken and
the judgment rendered before the justice. (Id. § 3056.)

SECTION VI.
Wuen Qverstions ror Review Most pe Presentep By A Casn.

When a party intends to appeal from a judgment rendered after
the trial of an issue of fact in the Supreme Court, in a Superior City
Court, in the City Court of New York, or in a County Court. or to
move for a new trial of such an issue, he must, except as otherwise
prescribed by statute, make a case, containing so much of the evidence
and other proceedings upon the trial as is material to the questions
to be raised thereby, and also the exceptions taken by the party
making the case, and must procure the same to be settled and signed
as prescribed by the Code and the general rules of practice. (Code
of Civil Pro. § 997.) So where a party appeals from a decree rendered
upon the trial of an issue of fact by a surrogate, he must make a case
and have it settled by the surrogate in the manner prescribed by law
for the making and settling of a case upon an appeal in an action.
(Id. § 2576. See Laws of 1881, chap. 40; Waldo v. Waldo, 32
Tun, 251.)

The Code provides that an appeal from a final order made upon
an alternative mandamus must be taken as an appeal from a judgment,
and that each provision of law relating to an appeal from a judg-
ment, either to the General Term or to the Court of Appeals, is
applicable thereto. (Code of Civil Pro. § 2087.) This would seem
138 New Trrats AND APPEALS.

 

When questions for review must be presented by a case.

 

to render it necessary to make a case as on appeal from a judgment.
(See Id. § 997; People v. Contracting Board, 46 Barb. 254. But
see Poole v. Johnston, 32 Hun, 215.) A case is also necessary upon
an appeal from an order made upon a motion for a new trial upon
the minutes of the judge presiding at a trial by jury. (Code of Civil
Pro. § 999.)

The rules of the Court of Appeals require the appellant to make
a case in all calendar causes, and specify what must be included
therein (Rule 5), and the Code provides that where an appeal to the
Court of Appeals from a judgment rendered at a General Term of
the court below upon a verdict subject to the opinion of the court,
has been perfected, a case, containing a concise statement of the
facts, of the questions of Jaw arising thereupon, and of the determin-
ation of those questions by the General Term, must be prepared and
settled by or under the direction of the court below, and annexed to
the judgment-roll. (Code of Civil Pro. § 1339.) A case is indis-
pensable to the review of a final judgment only, except as herein-
after stated. (Delano v. Harp, 37 Hun, 275.)

It is not necessary to make a case where a party intends to appeal
from a judgment entered upon a referee’s report, or a decision of the
court upon a trial without a jury, and to rely only upon exceptions
taken to rulings, upon questions of law, made after the cause is
finally submitted, as provided in séction 994 of the Code. (Code of
Civil Pro. § 998; Ferguson v. Hamilton, 35 Barb. 427; Douglass
v. Douglass, 11 Hun, 406.)

If a notice of exception so taken is filed before the entry of judg-
ment, it is inserted in the judgment-roll; if afterwards, it is annexed
to the judgment-roll; and in either case it constitutes a part of the
papers upon which an appeal from the judgment must be heard.
(Code of Civil Pro. § 994.)

Although the Code requires a case to be made upon an appeal
from a decree made by a surrogate upon a trial by him of an issue of
fact, no case is necessary where the decree is not made upon such
trial. Thus, where an appeal is taken by a trustee from so much of
the decree of the surrogate as charged him with interest and denied
him commissions on the settlement of his accounts, it was held that
the objections raised by the appellant could be properly heard and
disposed of without a case according to the practice provided for by
the latter part of section 998 of the Code. (utter of Jackson, 32
Hun, 200.)
Time wIrHIN wHIcH A OAsr MUST BE MADE AND SERVED. 139

 

Time within which a case must be made and served,

 

An appeal from an order confirming the report of arbitrators, and
from the judgment entered thereon, must be heard upon the same
papers which were before the court at the time such order was made
and such judgment was directed, and a case is unnecessary and unan-
thorized. (Poole v. Johnston, 32 Hun, 215. See Hetchamv. Wood-
ruff, 24 Barb. 147; Dibble v. Camp, 60 Barb. 150 ; 10 Abb. N.S. 92.)

No case is necessary on an appeal to the County Court from a
judgment rendered by a justice of the peace, as the return will
always present the proceedings before the justice, and the evidence,
when the evidence is material to the review. (Ante, p. 134.)

SECTION VII.
Tre WITHIN wHicn A CasE must Bt MADE AND SERVED.

In theory, a case and exceptions, or a case containing exceptions,
is made, served, and settled, and becomes a part of the record before
appeal to the General Term, for the party is not supposed to have
determined on his appeal until he can see what his case is as settled
by the referee or judge. (Salls v. Butler, 27 How. 133.) It is
upon this theory that the framers of the Code required a case to be
made “ where a party intends to appeal ” instead of requiring a case
where an appeal had been taken. (See Code of Civil. Pro. § 997.)
On the other hand, if the appeal is to the Court of Appeals, it must
be perfected before the “case” is made, asa copy of the notice of
appeal must be included therein. (See Rules of Ct. App. 1 and 5;
Code of Civil Pro. § 1339), and the appellant has forty days after
the appeal is perfected in which to serve his case. (Rule 7, Ct.
App.)

The Code does not prescribe any time within which a case must
be made and served, but merely provides that the case must be made
and settled as prescribed in the general rules of practice. (Id.
§ 997.) These rules provide that ‘“ Whenever it shall be necessary
to make a case, or a case and exceptions, or a case containing
exceptions, the same shall be made and a copy thereof be served on
the opposite party within the following times:

“Tf the trial was before the court or a referee (including trials by
a jury of one or more specific questions of fact in an action triable
by the court), within ten days after service of the decision or report,
and of written notice of the entry of judgment thereon.
140 New Terarts anp Apprats.

 

Extension of time to make a case.

 

“In the Surrogate’s Court within ten days after service of a copy
of the decree or order and notice of the entry thereof.

“Tf the trial were before a jury, within ten days after the
trial, or within ten days after notice of the decision of a motion
for a new trial, if such motion be made and be not decided at the
time of trial, or within ten days after notice of the entry of judg-
ment under section 1185 of the Code.” (Rule 82.) “If the party
shall omit to make a case within the time above limited, he shall be
deemed to have waived his right thereto.” (Rule 33.)

It will be noticed that the time prescribed by the Code for filing
and serving exceptions to rulings made by areferee or by the
court after final submission of the case, and the time limited by the
rule for serving a case where the trial is by the court or referee, is
the same, and that the Code requires that such exceptions should be
contained in the case. The exceptions should therefore be served
before or with the case. (See Hrench v. Powers, 80 N. Y. 146; 58
How. 889.) Under the former practice it was held that if a case
was prepared and served within the time limited, containing excep-
tions to the decision or report, these exceptions need not be
separately filed or served. (See Hunt v. Bloomer, 13 N.Y. 3413
Johnson v. Whitlock, Id. 344.) But these decisions cannot be
regarded as authority under the present practice.

Extension of time to make a case.—The time to make and
serve a case may be extended after the time fixed by the rules of
court has commenced to run and before it has expired, either by
stipulation entered into between the attorneys for the several parties,
or upon an application to the court, or to a judge authorized to make
an order in the action, based upon an affidavit showing grounds
therefor. (Code of Civil Pro. § 781.) So where the time to make
and serve a case has expired, the court, upon good cause shown,
may, in its discretion, and upon such terms as justice requires, per-
mit the party to serve a case nunc pro tune, (Code of Civil Pro. §
783; Strong. v. Hardenburgh, 25 How. 488.)

If the application to enlarge the time in which to make and
serve a case is made before the expiration of the ten days allowed
for such service by the rules of court, it may be made ew parte. It
should be based upon an affidavit stating the time of the service of
notice which fixes the time from which the ten days commence to
run; the reason why an extension of time is necessary ; and whether
Regquisrres oF THE Case on Bri, or Exceptions. 141

 

In general.

any previous application has been made for the order, and if any
has been made, to what court or judge, and what order or decision
was made thereon, and what new facts if any are claimed to be
shown. (Rule 25.) The party obtaining the order should serve it,
with a copy of the affidavit upon which it was granted, upon the
attorney for the adverse party. (Code of Civil Pro. § 782.)

If the application is made after the time to serve a case has
expired, it should be made on notice to the adverse party, although
notice of the application is not expressly required by the Code.
(See Code of Civil Pro. § 783.) The affidavit upon which the
motion is based should state the facts excusing the default or failure
to serve the case within the time fixed by the rules, and any other
fact which may tend to show that the order should be granted.
The application must be made to the court (Id.); and if itis granted,
the order should be properly entered, and a certified copy should be
served upon the attorney for the respondent.

The time limited by law within which to transmit papers to the
Court of Appeals may be extended by the court below, or by a
judge thereof, for the purpose of enabling the appellant to procure
a case to be prepared or settled on an appeal from a judgment
rendered at General Term upon a verdict subject to the opinion of
the court. (Code of Civil Pro. § 1339.)

A surrogate has power to allow further time in which to make
and serve a case where an appeal is taken from his court. (Rule 32.)

SECTION VIII.
Requvistres or THE Case or Bitt or Exceptions.

In general.—The paper designated by the framers of the Code
us a “case” combines the qualities both of a case and bill of excep-
tions as those terms were formerly understood. (See Hunt v.
Bloomer, 13 N. Y. 341.) Its office is to present to the appellate
court in a compact, convenient form, shorn of all extraneous matter,
the questions which the appellant seeks to have reviewed. The
Code requires that it shall contain so much of the evidence and
other proceedings upon the trial as is material to the questions to be
raised thereby, and also the exceptions taken by the party making
the case. (Code of Civil Pro. § 997.) That the case shall contain
no more than is necessary to present the questions for review, it is
142 New Trrats anp APpPpEALs.

 

Requisites of the case or bill of exceptions.

 

further required that the case shall be settled and signed in the
manner prescribed by the general rules of practice (Id.), and these
rules are so framed as to exclude all unnecessary and immaterial mat-
ter.

The provisions of the Code above cited apply only to proceed-
ings taken in the Supreme Court, a Superior City Court, the City
Court of New York, or a County Court (Code of Civil Pro. § 3347,
subd. 7), and other provisions of that act regulate the making and
settlement of a case upon appeal from the decree of a surrogate
(Id. §§ 2545, 2576), and upon an appeal to the Court of Appeals
from a judgment of the General Term upon a verdict subject to the
opinion of the court. (Id. § 1389.)

The general rules of practice provide that “a bill of exceptions
shall only contain so much of the evidence as may be necessary to
present the questions of law upon which the same were taken on
the trial; and it shall be the duty of the justice, upon settlement,
to strike out all the evidence and other matters which shall not have
been necessarily inserted.

“A case or exceptions shall not contain the evidence in Awe verba,
or by question and answer, unless ordered by the justice, surrogate,
or referee by or before whom the same shall be settled. But the
facts of the case, together with the rulings on the trial, shall be
stated in a narrative form, except that where it is claimed by either
party that any particular testimony should be given in hae verba,
the justice, surrogate or referee who settles the case shall determine
whether or not a proper presentation of the case for review requires
such portion of the evidence to be so stated in Awe verba, in which
case the ease shall be made accordingly.

“ And in case any case or bill of exceptions does not conform to
this rule, the court before which the same shall be brought for
review may order the same back for settlement, or may direct that
no costs shall be taxed for the printing of so much of the case as it
shall deem to have been unnecessarily inserted.

“ Exhibits shall not be printed at length, unless the justice, sur-
rogate, or referee so direct.” (Rule 34.)

The necessity for this rule arose out of the practice of substitut-
ing bodily the stenographer’s minutes for a case or bill of exceptions,
and thus incumbering the case with voluminous irrelevant matter.
This has been frequently disapproved by the courts (Jewell v. Van
Steenburgh, 58 N. Y. 85; Howland v. Woodruff, 60 N. Y. 73, 77;
Regqovisires of THE Case orn Bitt or Exceptions. 148

 

Requisites of the case or bill of exceptions,

 

Eyan v. Wavle, 4 Hun, 804; Smith v. Mew York Cent. & H. R.
Lt. &. Co., 30 Hun, 144), and an observance of the rule is now
enforced by sending a case, prepared in the form of questions and
answers, or containing a mass of unnecessary matter, back to the
justice or referee for resettlement (See Smith v. Mew York Cent. &
H.R. BR. &. Co., 30 Yun, 144; McNish v. Bowers, Id. 214), and by
either refusing to allow the cost of printing the defective case to be
taxed (See Mead v. Shea, 26 Hun, 393), or charging the expense
of resettlement against the attorney in fault. (Ryan v. Wavle, 4
Hun, 804.)

Whenever it is necessary to the proper presentation of one or
more questions for review, that particular portions of the testimony
bearing upon those questions shonld be presented in the form of
questions and answers ; as, for example, where the question arises
upon tle admission of evidence, so much of the evidence should be
inserted in that form, and the remainder in the narrative form.
(Smith v. New York Cent. & H. R. &R. Co., 30 Hun, 144.)

No more evidence should be inserted in the case than is material
to the questions to be reviewed (Id.), and if only questions of law
are to be reviewed the insertion of all the evidence is improper.
(Marckwald v. Oceanie Steam Nav. Co., 8 Hun, 547.) lf the
appeal is from a judgment entered upon the report of a referee or a
decision of the court, and the appellant is satisfied with the rulings
upon the trial and with the facts as found, but desires to review the
conclusions of law based thereon, no case containing evidence is
necessary. (Ante, p. 158.) Butif the appellant claims that the court
or referee erred in omitting to find a fact after a seasonable request
liad been made for such finding, or in finding a fact without any
evidence to sustain it, a case containing all the evidence bearing upon
erroneous or omitted finding is indispensable to present the question
properly for review. Under tlie old Code it was held that it would
be assumed upon the hearing of tle appeal that all the evidence in
support of the finding excepted to was inserted in the case, and that
it was not necessary that the case should state that it contained all
the evidence given upon the trial (Sce Perkins v. Hill, 56 N. Y.
$7; Travis v. Seriba, 12 Hun, 391); that if the party making up
the case omitted any evidence tending to support the finding excepted
to, it was the duty of the other party to cause it to be inserted by
amendment (Perkins v. Lill, 56 N. Y. 87; Tomlinson v. Mayor,
44 N. Y. 601; Westcott v. Fargo, 6 Lans. 325); and that even where
144 New Triats anp APPEALS.

 

Requisites of the case or bill of exceptions.

 

a strict bill of exceptions was made up, it would be presumed to con-
tain so much of the evidence as was essential to the decision of the
points raised by the exceptions. (Perkins v. Hill, 56 N. Y. 87.)
Tt was also held that an exception to a refusal to charge the jury that
there was ‘no evidence upon a certain question in issue was not avail-
able on appeal; if the case did not contain a statement that all the
evidence was inserted in it, although the case, as made, contained
no direct evidence bearing upon the point in question. (Price v.
Keyes, 1 Hun, 177; 3 N. Y. Sup. Ct. [T. & C.] 720; 8. C. reversed
on other points, 62 N.Y. 378. See also Boyer v. Brown, 1 Hun,
615.) On the other hand, it was held that to authorize a reversal of
a finding of fact by the Court of Appeals, on the ground that there
was no evidence to sustain it, it must appear that the case contained
allthe evidence. (Cox v. James, 45 N. Y.557.) The decisions under
the old Code to the effect that the appellate court would presume
upon the hearing of the appeal that a& the evidence in support of the
finding excepted to was inserted in the case where no statement to
that effect was contained thercin, are not authority under the present
Code where an appeal is taken to review the facts found by the.court
or by a referee. Under the old Code, exceptions could be taken to
findings of fact, and were available, but this is not authorized under
the present Code. (See ante, p. 126.) The appellant must present
a case so made up and settled that the error complained of is mani-
fest, and should not leave the court to indulge in presumptions to
overthrow decisions. If he claims that a finding of fact is against
evidence, the case must show that it contains all of the evidence, or
all bearing upon the finding sought to be reviewed, for if this does
not so appear, the court will assume that the evidence was sufficient
to sustain the findings of fact. (Porter v. Smith, 35 Hun, 118;
Dalzel v. Rau, 1 N.Y. Sup. Ct. [T. & C.] Addenda, 4; Beard v.
Yates, Id. 21; Perrine v. Hotchkiss, 2 N. Y. Sup. Ct. [T. & C.]
870; 59 N. Y. 649; Parsons v. Coburn, 2 N. Y. Sup. Ct. [T. & C.]
324, 329; Highie v. Heath, 3 N. Y. Sup. Ct. [T. & C.] 783; LHow-
land v. Howland, 20 Hun, 472; Ballou v. Ballou, Gen. Term
Fourth Dep., Oct., 1884.)

So where a motion to set aside a verdict on the ground that it
is against the preponderance of evidence has been heard and decided
on the minutes of the judge, it is necessary that the case to be made
for the purpose of review should state that it contains all the evidence
bearing upon the question. (Cheney v. New York Cent. & H. R
Regquisirrs or THE Case on Bint or Exceptions. 145

 

Requisites of the case or bill of exceptions,

R. R. Co., 16 Hun, 415. See Dalze v. Rau, 1 N.Y. Sup. Ct.
[T. & C.] Addenda, 4.)

Where, in an action tried by a referee, the case does not contain
any of the evidence, but only the finding of facts and conclusions
of law, it will be presumed that there was no other evidence from
which any other facts could be found; and where it also contains
exceptions to the conclusions of law, the question presented for
review is whether such conclusions are warranted by the facts found.
(Stoddard v. Whitney, 46 N. Y. 627.) The conclusions of the ref-
eree will not be disturbed unless the report shows the existence of
facts rendering these conclusions erroneous. (Zomlinson v. Mayor,
44 .N. Y. 601.)

It is the duty of the appellant in making his case to so frame it
as to show plainly that an erroneous ruling was made adversely to
him, and not to leave that fact to appear by mere inference or ¢con-
jecture. (Clark v. Donaldson, 49 How. 63 ; See Hazewell v. Cour-
sen, 81 N. Y. 630, 637.) But it is not necessary to state in a case
that a finding upon the facts ora ruling upon the law was made, where
the finding or ruling appears in a referee’s report, or in the decision
of the court uponatrial by the court without a jury. (Code of Civil
Pro. § 997.) If an exception is taken to the ruling of the court
allowing counsel summing up to read portions of a book to the jury,
the case should show that the counsel availed himself of the ruling
in his favor, and also what he read to the jury. (See Lyons v.
rie R. R. Co., 57 N. Y. 489, 492.

If a motion to postpone the trial of the cause has been made and
denied, the affidavits used on the motion will properly form a part
of the case made to present the action of the court for review upon
appeal from the judgment. (Gallaudet v. Steinmetz, 13 Jones & Sp.
239; 6 Abb. N. C. 224; Gregg v. Howe, 5 Jones & Sp. 420.) Ifa
party has taken an exception on the trial to the determination by
the court of a challenge to a juror, the case must contain the matters
necessary to present the exception upon the facts, or the law, or both.
(Code of Civil Pro. § 1180.) But if the appellant does not propose
to raise any question in his points as to the competency of the juror,
everything relating to the trial of the challenge should be omitted.
(Smith v. New York Cent. & Hudson R. R. Le. Co., 30 Hun, 144.)

The reasons assigned by a justice presiding ata trial for rulings
made during its progress have no place in a case or bill of exceptions.

(Tweed v. Davis, 1 N. Y. Sup. Ct. [T. & C.] 252.) But where a
10

 
146 New Triats anp APPEALS.

 

Upon appeal to the Court of Appeals.

 

court or referee refuses to make a finding upon the ground that the
question presented by the request is immaterial, the reason assigned
for the refusal may be important. (See James v. Cowing, 82 N. Y.
449, 457.)

A judge’s charge to the jury should not be inserted in extenso,
(Buckley v. Keteltas, 4 Sandf. 450), nor should any portion of it be
inserted, if no portion of it is excepted to. (Shook v. O' Weil, 1 Law
Bull. 38.) A bill or exceptions should not contain questions with-
drawn, answers excluded, or testimony not essential to a proper pre-
sentation of the questions raised by the exceptions. (of'man v.
tna Fire Ins. Co.,1 Robt. 501; 19 Abb. 325.) It should not
contain exceptions taken by the respondent, except in peculiar cases.
(Dabney v. Stevens, 10 Abb. N.8. 39; 2 Sweeny, 415 ;40 How. 341;
Beach v. Cooke, 28 N. Y. 508.)

The appellant, having made his proposed case, or case containing
exceptions, should prepare a copy for service on the adverse party.
The lines of the case should be so numbered that each copy will
correspond. (Rule 32.) The copy should then be served upon the
attorney for the adverse party within the time limited for that pur-
pose. (See ante, p. 139.)

Upon appeal to the Court of Appeals.—Rule 5 of the
Court of Appeals provides that “in all calendar causes a case shall
be made by the appellant, which shall consist of a copy of the
return of the clerk, and the reasons of the court below for its judg-
ment, or an affidavit that the same cannot be procured, together
with an index to the pleadings, exhibits, depositions, and other prin-
cipal inatters. Every opinion in the cause at Special Term, as well
as at General Term, relating to the questions involved in the appeal,
is included in the foregoing provision.”

When the appeal is from a judgment rendered at a General Term
of the court below, upon a verdict subject to the opinion of the
court, the same must contain a concise statement of the facts, of the
questions of law arising thereupon, and of the determination of
those questions by the General Term. (Code of Civil Pro. § 1339.)
The appeal will be dismissed unless the case contains the statement
required by the section cited (Lecnmiller v. Skidmore, 59 N.Y.
661); and if the statement is defective in any respect it will be
sent back to the court below for correction. (Jaycow v. Cameron,
49 N. Y. 645.) But where a verdict is directed by the court below,
Reoquvisires or tHe Case or Binw or Exceptions, 147

 

Upon appeal to the Court of Appeals.

 

and exceptions are ordered to be heard in the first instance at a Gen-
eral Term, a finding of facts by the General Term is unnecessary
and unauthorized (Durant v. Abendroth, 69 N. Y. 148), and should
not be inserted in a case made for a review in the Court of Appeals.
As a general rule, the review in the Court of Appeals is had
upon the case as originally prepared and settled in the court below,
and the appellant, after the affirmance of the judgment in the lower
court, has no right, of his own motion and withou: the order of the
court, to make up and serve a new case upon a further appeal to
the Court of Appeals. (Johnson v. Whitloch, 13 N. Y. 344.)
There is an exception to the rule where the appeal is from the judg-
ment rendered at General Term upon a verdict subject to the opin-
ion of the court. (See Code of Civil Pro. § 1339.) So where the
case in the court below contains a mass of evidence, properly
inserted for review at General Term, but which cannot be reviewed
by the Court of Appeals, the case may be resettled upon stipulation
of the parties or under an order of the court, and the unnecessary
matter expunged. While the Code requires that the case shall con-
tain so much of the evidence and other proceedings upon the trial
as is material to the questions to be raised thereby, and also the
exceptions taken by the parties making the case, it also provides
that if it afterwards becomes necessary to separate the exceptions,
the separation may be made and the exceptions may be stated, with
so much of the evidence and other proceedings as is material to the
questions raised by them, in a case prepared and settled as directed
by the general rules of practice, or, in the absence of directions
therein, by the court upon motion. (Code of Civil Pro. § 997.)
The application for a resettlement should be made to the court
below at Special Term, and a prior application to the Court of
Appeals to have the cause remitted to the court below for the pur-
pose of moving fora resettlement is not necessary. (Wetbeck v.
Waine, 8 How. 483; Luyster v. Snifin, 3 How. 250; 1 Barb. 428.)
Except as above stated, the settlement of the case by the justice,
referee or surrogate, holds good in all courts until the final determin-
ation of the cause. The appellant is bound to present his case
to the General Term upon the case as settled, and to the Court of
Appeals upon the same record. (Leese v. Boese, 92 N.Y. 632;
Kilmer v. New York Cent. @ Hl. R. R. R. Co. 94 N. Y. 495.)
He is under no obligation to print matter proposed by the respond-
ent as an amendment, but disallowed ly the trial judge. (Id.) Any
148 New Trrats anp APPEALS.

Serving amendments.

 

 

paper which legitimat.ly could not have been considered on the
appeal to the General Term, and does not appear to have been in
fact beforesit, cannot properly be inserted in the case on appeal to
the Court of Appeals. (Reese v. Smyth, 98 N. Y. 648. See
Leonard v. Mulry, 93 N.Y. 392.)

The appedant, having prepared his case or appeal-book, should
hive the same printed in compliance with the rules of the Court of
Appeals (see Rule 0), and within forty days after the appeal is per-
fected should serve three printed copies of the case upon the attor-
ney for the adverse party. (Rule 7. See Wade v. De Leyer, 63
N. Y. 318.)

SECTION 1X.
Serving AMENDMENTS aND Notice oF SETTLEMENT.

Serving amendments.—The party served with the proposed
case may, within ten days thereafter, propose amendments thereto
and serve a copy on the party proposing the case or exceptions.
(Rule 32.) If the party served with the proposed case omit to serve
amendments within the ten days allowed therefor, he will be
deemed to have agreed to the case as proposed (Rule 63), and it will
be settled by mere lapse of time. (See Zngersoll v. Smith, 16 Jones
& Sp. 522; 62 How. 474; Whiting v. Kimball, 6 Bosw. 690.) This
time may be extended by the surrogate on appeals from his court
(Rule 32), or by the court or by a judge authorized to make an order
in the action, on appeals from other courts. (Code of Civil Pro.
§ 71.)

If upon an examination of the proposed case the respondent dis-
covers that the evidence material to the support of some finding of
fact has been omitted by the appellant, and this fact has been
made the subject of review, he should propose an amendment sup-
plying the omitted evidence, as it will be presumed, on the hearing
of the appeal, that the case, as settled, presents all the evidence in
support of the finding. (Ante, p. 144.) Tf the respondent claims
that the case should be made to conform to the minutes of the
stenographer, he should propose the proper amendments, and. at the
end of each amendment should refer to the proper page of the
minutes. (Rule 32.)

The changes proposed by the respondent should be strictly
amendments of the ca-e served upon him; and it is irregular for the
SETTLEMENT oF THE Casz orn Exceptions. 149

 

By whom the case must be settled.

 

respondent to serve a case drawn by himself as a substitute by way
of amendment. (Stuart v. La Farge, 4 Bosw. 616.)

 

Giving notice of settlement.—Within four days after service
of the proposed amendments upon him, the appellant must serve the
respondent with a notice that the case or exceptions, with the pro-
posed amendments, will be subinitted, at a time and place specified
in the notice, to the justice, surrogate or referee before whom the
cause was tried, for settlement. The time for settling the case
must be specified in the notice, and must not be less than four, nor
more than twenty days after service of such notice. (Rule 32.)
An omission to give this notice within the time limited will be
deemed an agreement to the amendments, as proposed (Rule 33), and
the case is settled by the lapse of time. (Jngersoll v. Smith, 16
Jones & Sp, 522; 62 How. 474; Wheting v. Kimball, 6 Bosw.
690.)

Before submitting the case or exceptions and the proposed
amendinents to the justice, surrogate, or referee, for settlement, the
appellant should mark upon the several amendments his proposed
allowance or disallowance thereof, and should also mark upon the
case or exceptions and upon the stenographers’ minutes, the parts
to which the proposed amendments are applicable, together with
the number of the amendments. (Rule 32.)

SECTION X.
SETTLEMENT OF THE OCasE or Exceptions.

By whom the case must be settled.—A case must be settled
and signed by the judge, referee or surrogate by or before whom the
action was tried, or, in case of his death or disability, in such man-
ner as the court directs. (Code of Civil Pro. §$ 997, 2545, 2576.)
A judge out of office may settle a case or exceptions (Id. § 25), and
may be compelled to do so by the court in which the action or spe-
cial proceeding is pending. (Id.) Where the cause was tried at a
term of the Supreme Court held in the City of New York by a
judge of the Superior Court, or of the Court of Common Pleas,
designated by the Governor for that purpose, the case must be
settled before the judge who held the term. (Id. § 236.) Where

 
150 New Triats anp APPEALS.

 

Proceedings upon the settlement.

 

the cause is tried before more than one referee, a majority of the
referees may settle the case. (Id. § 1026.)

A referee, who by an agreement entered into with the,successful
party after making his report, has acquired a lien for his fees upon
the judgment to be entered thereon, and aright to the payment of
such fees out of the first moneys collected upon such judgment or
any subsequent judgment which may be recovered in the action, is
disqualified from afterwards settling a case upon the appeal taken
from a judgment so entered. (Leonard v. Mulry, 93 N. Y. 392.)
In such case, the party who has entered into the disqualifying
agreement with the referee is not entitled as of course to the bene-
fit of the provision of the Code permitting the court to prescribe
the manner of settling the case in case of death or disability of the
referee. Instead of directing a settlement before a new referee, or
otherwise, the court in which the action is pending, upon a proper
application, may set aside the report, vacate the judgment entered
thereon, and grant a new trial. (Id.)

Proceedings upon the settlement.—At the time and place
fixed by the notice, the parties should appear before the justice, ref-
erec, or surrogate, with the proposed case and amendments, and the
minutes of the stenographer, for the purpose of having the case
corrected and settled. The justice will then proceed to settle the
case by striking out all matter unnecessarily inserted, adding matter
proposed by amendment, where it has been improperly omitted, and
determining what portion, if any, of the testimony shall be inserted
in the form of questions and answers, and what exhibits, if any,
shall be printed at length. (See Rule 34.) The proceedings upon
the settlement are usually conducted somewhat informally, the
appellant moving the case be settled as proposed, subject only to
such proposed amendments as he has marked “allowed,” and the
respondent opposing such motion and insisting that the case be cor-
rected in accordance with his proposed amendments. Affidavits
may be read by the parties in support of their statements as to what
occurred on the trial or hearing, and a question of fact is then pre-
sented to be determined from all the evidence presented, including
the minutes of the stenographer, if any, and of the court or referee.
(See Canzi v. Conner, 4 Abb. N. C. 148.) In case of a dispute as
to words, the stenographer’s minutes usually control. (WVelson v. XV.

Y. Cent. & Hudson R. RL. R. Co., 1 Law Bull. 15.) The settlement
SETTLEMENT oF THE CasE or EXcEPTIons. 151

 

Proceedings upon the settlement.

 

of the case is left very much to the discretion of the judge or ref-
eree, by or before whom the trial was had (Canzi v. Conner, 4
Abb. N. C. 148), and while a court or referee may be compelled by
mandamus to settle a case, he cannot be compelled tosettle it in any
particular manner. (Tweed v. Davis, 1 Hun, 252; 47 How. 162;
People v. Baker, 35 Barb. 105; 14 Abb. 19.)

Additional findings of fact or conclusions of law cannot be made
upon the settlement of the case (Rule 382; Code of Civil Pro.
§ 1023; Palmer v. Phenix Ins. Co., 22 Hun, 224; Gormerly v.
McGlynn, 84 N. Y. 284), except where the settlement is had before
a surrogate after a trial by him of an issue of fact. Upon such
trial, the surrogate must file in his office his decision in writing,
which must state separately the facts found and the conclusions of
law, and upon the settlement of a case, either party may request a
finding upon any question of fact, or a ruling upon any question of
law; and an exception may be taken to such finding or ruling, or to
a refusal to find or rule accordingly, which will be available on
review in each court to which the appeal is carried. (Code of Civil
Pro. § 2545. See Hartwell v. McMaster, 4 Redf. 389.)

The parties may agree on the facts proven to be inserted in the
case, instead of the testimony, on the approval of the justice.
(Rule 82.)

The case must be signed by the judge, referee or surrogate who
settled it (Code of Civil Pro. § 997; Zarris v. Van Wart, 96 N.
Y. 642; Jeese v. Boese, 92 N.Y. 632), and an order must be
obtained that it be annexed to the judgment-roll. (See Rule 35.)
The papers used upon the appeal should contain evidence that the case
has been settled according to the general rules of practice, and in the
absence of such evidence the court will decline to hear the appeal.
(Putnam v. Matthewson, 25 Hun, 317; Butts v. Village of Low-
ville, Id.; Ladue v. Nichols, Id. 64; Todd v. United States Life
Ins. Co., Id. 311; Bradner v. Gile, Id. 319; Morey v. Fisher, Id.
68.) The case, when settled and signed, with the allowed amendments
and corrections made, is then delivered by the judge to the appellant,
or, as the custom is in some courts, to the clerk of the court. The
party making up the case is then entitled to the possession of it for
at least ten days, in order that he may prepare a copy of it, as
settled, for service on the attorney forthe respondent as required by
the gencral rules of practice. (See Rule 40.) This copy should be
made, and also a copy for the printer, and if the action is
152 New Trrats anp APPEALS.

 

Filing the case or exceptions.

 

pending in the City Court of New York, or in the Superior Court
of that city, a printed or engrossed copy must be prepared before
applying for an order directing the clerk to file the case. (See Rule
10, Supr. Ct. of N. Y.; Rule 9, City Ct. of N. Y.) But this is
not required in the Court of Common Pleas. (See Parker v.
Link, 26 How. 3873, 377.)

SECTION XI.
Firing tHE Case or Exceptions.

The general rules of practice provide that “ where a party makes
a case or exceptions he shall procure the same to be filed within ten
days after the same shall be settled and signed, or ordered to be filed,
or it shall be deemed abandoned, unless the time is extended by
order. No case or exceptions to be annexed to the judgment-roll
shall hereafter be filed by the clerk of the court, unless the same is
so ordered by the judge or referee who tried the case. And on
filing affidavit that such case or exceptions has not been filed, and
showing the time of the settlement thereof, and the date of such
order, and that more than ten days have elapsed from the time of
such order, or from the expiration of the time to which it was
extended, an order of course may be entered, declaring the same
abandoned, and the party may proceed as if no case or exceptions
had been made.” (Rule 35.) This rule forbidding the clerk to
annex any case or exceptions to the roll, unless so ordered by the
judge or referee, has been uniformly enforced by the courts.
(McNish v. Bowers, 36 Hun, 214.) The order for filing may be
obtained at the time of the settlement of the case, and this is the
usual practice. But where the case is settled by lapse of time, as
where the respondent omits to propose amendments, or the appellant
has omitted to give notice of settlement, within the time limited,
and no actual settlement by the judge or referee is necessary, it must
still be presented to the judge or referee for his signature, and an
order must be obtained directing the clerk to file the case. (See
Ingersoll v. Smith, 16 Jones & Sp. 522; 62 How. 474; Code of
Civil Pro. § 997.) It is the original papers that are to be filed with
the clerk, that is, the case and amendments as they came from
the judge or referee, with the corrections and allowances as made by
him. The object of requiring such filing is to enable the respondent
Pornts. 153

Points.

 

to determine by comparison whether the copy case served upon him
before argument is a correct transcript of the case or not. (Parker
v. Link, 26 How. 875.) The object of the rule may be facilitated
by filing at the same time a copy of the original case, and by serving
upon the respondent a notice of such filing. This is the almost
uniform practice in the Court of Common Pleas. (Ld.)

The rules of the Superior Court of New York provide that “no
case or exceptions shall hereafter be filed by the clerk of this court,
unless the same is so ordered by the judge or referee who tried the
cause. And the order to file will not be granted until the case or
exceptions shall have been properlv engrossed or printed, after settle-
ment, with all the papers and exhibits required to be inserted therein.”
(Rule 10.) A rule of the City Court of New York is to the same
effect. (See Rule 9.)

The case or exceptions when filed will be annexed to the judg-
ment-roll, and form a part of the papers upon which the appeal is
heard. (Code of Civil Pro. §§ 1315, 1353.) Underthe former prac-
tice, it was held that a case or exceptions filed after judgment entered
could not be annexed to the judgment-roll as of course for the pur-
pose of review, but that a special order directing such annexation
must be first obtained. (Anderson v. Dickie, 26 How. 199; 1 Rob.
700 ; 17 Abb. 83.)

SECTION XII.
Points.

After the case is settled, both parties should proceed to prepare
points. The object of points is to furnish the court with the leading
positions insisted on by counsel, or in other words the heads of his
argument, with a reference to the authorities he intends to cite in
support of the same. (Gray v. Schenck, 3 Tow. 231; Rule 41.)
Where the exceptions taken upon the trial are numerous, the appel-
lant should not include them all in a single point and insist generally
that each and every ruling to which they refer is erroneous, but
should select the exceptions upon which he relies, stating each in
a separate point, with a proper reference to the folio of the case at
which it is to be found, with a terse statement of the ground of his
claim that the exception should be sustained. (See Hebbard v.
Haughian, 70 N.Y. 54, 61.)
154 New Trias anp AppEALs.

 

Points,

 

The points of the appellant should be so framed as to direct the
attention of the court to the features of the case for which he asks a
reversal (Landers v. Staten Island R. R. Co., 13 Abb. Pr. N.S.
338), while those of the respondent will direct the attention of the
court to such features of the case as require an affirmance. Each
party must prefix to his points a concise statement of the facts of the
vase, with reference to the folios; and if such statement is not fur-
nished, no discussion of the facts by the party omitting such statement
will be permitted. (Gen. Rule 40; Rules 8 and 9, Ct. App.) The
rules of the Superior Court of New York require that when an
appeal from a judgment or order is based wholly or in part upon
alleged errors of fact, the appellant’s points must distinctly and
clearly state, in a separate point for each, what errors of fact have
been committed, with reference to the folios of the case which con-
tain the evidence relied on. (Rule 8.)

The General Term rules of the fourth and fifth departments
require the appellant, in addition to the statement required by Gen-
eral Rule 40, to prefix to his points a brief statement showing in
what court, or before what officer or tribunal the action or proceed-
ing was instituted, the relief sought, the defense or grounds of oppo-
sition thereto, the result in the court or before the officer or tribunal
in which the action or proceeding was commenced, the proceedings
subsequent to the first decision, and how the case was brought into
the appellate court. (Rule 12.)

On bringing on the argument of an appeal to the County Court
from a judgment rendered by a justice of the peace, counsel should
furnish to the court and to the other side acopy of the points made,
with reference to the law and authorities on which he relies. This is
required by rule in some counties, and should be the uniform prac-
tice. It is not necessary, however, that the points served on appeal
to the County Court should be printed. The rules of the Superior
Court of Buffalo require each party to farnish a written brief or
points to each of the judges who shall hear the argument of an
appeal from a judgment rendered Ly a justice of the peace.
Printing AND Serving Papers. 155

 

Printing and serving papers.

 

i SECTION XIII.

Printing Papers vsED oN THE APPEAL, AND SERVING AND FILING
Printep Copies.

The rules of the Court of Appeals provide that “all cases and
points, and all other papers furnished to the court in calendar causes
shall be printed on white writing paper with a margin on the outer
edge of the leaf not less than one and a half inches wide. The
printed page, exclusive of any marginal note or reference, shall be
seven inches long and three and a half inches wide. The folio,
numbering from the commencement to the end of the case, shall be
printed on the outer margin of the page. Small pica, solid, is the
smallest letter and most compact mode of composition which is
allowed. No charge for printing the papers mentioned in this rule
shall be allowed as a disbursement in a canse, unless the require-
ments of the preceding sentence shall be shown by affidavit to have
been complied with in all papers printed.” (Rule 6.) The rules also
require that the papers on appeals heard as motions shall be printed
as in calendar causes. (Rule 8.)

The general rules of practice contain substantially the same
requirements asto the mode of printing cases and points, and all
other papers furnished to the court in calendar causes, and also pro-
vide that if the case exceeds fifty pages it shall be indexed. (Gen.
Rule 42.) This rule applies to all conrts of record except the Court
for the Trial of Impeachments and the Court of Appeals. (Code of
Civil Pro. § 17.) All papers upon which the appeal is heard must
be printed as prescribed in the rule above cited. These papers have
been already noticed. (Ante, p. 129.)
156 New Trias AND APPEALS.

 

Certain actions by the people—Civil actions.

 

ARTICLE X.

PREFERENCE OF CAUSES ON CALENDAR.

SECTION I.
ORDER IN WHICH CAUSES WILL BE PREFERRED.

Certain actions by the people.—A trial, motion, appeal or
hearing, in an action by the people to recover money, funds, cred-
its, or other property, held or owned by the State, or held or owned
officially or otherwise for, or in behalf of, a public or governmental
interest, by a municipal or other public corporation, or by a board,
officer, custodian, agency or agent of the State, or of a city, county,
town, village, or other division, subdivision, department, or portion
of the State, which the defendant has without right, obtained,
received, converted or disposed of ; or to recover damages or other
compensation for so obtaining, receiving, paying or converting or
disposing of the same; or the aiding or abetting thereof ; is enti-
tled, on the application of the Attorney-General, to a preference
over any other business at a term or sitting of any court of the
State, irrespective of its place upon the calendar. (Code of Civil
Pro. § 789. And see § 3347, subd. 6.)

 

Certiorari to review assessments.—An appeal from an order
judgment or determination made in a proceeding to review by
certiorarz an illegal, erroneous or unequal assessment, has preference
over all other civil actions and proceedings in all courts. (Laws of
1880, chap. 269, § 7.) This is in direct conflict with the provisions
of section 789 of the Code, above cited.

Civil actions.—Civil causes are entitled to preference among
themselves in the trial or hearing thereof, in the following orders
next after the causes by the people specified above :

1. An action or special proceeding, brought by or against the
people of the State, or by or against any State officer or board of
State officers as such, and in which the people or such officer or
board, appear by the Attorney-General, where the Attorney-General
OrprER IN WHICH CAUSES WILL BE PREFERRED. 157

 

Civil actions,

 

has given notice, at the time of the service of notice of trial or
argument, of a particular day in the term on which he will move it.
If the action or special proceeding is not moved by him for trial or
argument on that day, or as soon thereafter in the same term as the
court can hear it, the other party may then move the trial or argu-
ment; otherwise it shall not be moved out of its order at that term,
except by the special order of the court.

2. An action or special proceeding in which the mayor, alder-
men, and commonalty of the City of New York, or a board of offi-
cers, exercising powers conferred by a statute for the protection of
public health, or public or private property, or for the prevention
or punishment of violations of a statute relating to either of those
subjects, or the Commissioners of Pilots in the City of New York,
are parties; where a notice similar to the notice prescribed in the
last subdivision has been served by their attorney, at the time of
service of the notice of trial or argument. The provisions of the
last subdivision, relating to moving the trial or argument, apply to a
cause within this subdivision.

3. In the Court of Appeals or the Supreme Court, an appeal
taken by either party, in an action or special proceeding other than
as specified in subdivision first, where the people of the State, or a
board of State officers are sole parties, or a State officer is sole party,
plaintiff or defendant.

4. In the Court of Appeals an action, a party to which has died
pending the action, where the pendency of the action prevents a
final settlement of the estate of the deceased party.

5. In any court an action or special proceeding in which an
executor or an administrator or an infant or a receiver appointed by
the court, or general assignee for the benefit of creditors, is the sole
plaintiff or sole defendant; an action or special proceeding for
the construction of, or an adjudication upon, a will in which the
administrator with the will annexed, or the executor of the will is
joined as plaintiff or defendant with one or more other parties ; and
in the Court of Appeals or the Supreme Court an appeal from the
decree or decision of the Surrogate’s Court determining a will to be
valid and admitting it to prolate, or determining an instrument
offered for probate as a will to be invalid, or not entitled to probate
as such, or granting general letters of administration, or directing
the distribution of a fund, or payment of money by an executor or
an administrator, in pursuance of an order or decree made on an
158 New Trrars anp APPras.

 

Civil actions.

 

intermediate, final or judicial accounting or otherwise by an admin-

istrator or an executor.
6. An action for dower, where the plaintiff makes proof, by

affidavit to the satisfaction of the court or a judge thereof, that she
has no sufficient means of support, aside from the estate in contro-
versy.

7. An action against a corporation, or joint stock association, issu-
ing bank-notes or any kind of paper credits to circulate as money, or
by or against a receiver of such corporation or association. An
action in which a county or town is sole plaintiff or defendant.

8. An action against a corporation, founded upon a note or other
evidence of debt, for the absolute payment of money. An action
upon an undertaking given upon an appeal to the Court of Appeals,
or to stay the execution on an appeal to the Court of Appeals.

9. An action against a sheriff in his official capacity.

10. A cause entitled to preference by the general rules of prac-
tice, or by the special order of the court in the particular case.

Where an issue of law and an issue of fact, or two or more other
questions of different natures, come before the same term of the
court for trial or hearing, the preference given by this section affects
only the order in which the issue or questions of the same nature
are to be disposed of. (Id. § 791.)

Where a writ of mandamus or of prohibition has been issued,
from the General Term to a Special Term or a judge of the same
court, the cause may, in the discretion of the court, or, where an
appeal is taken therein to the Court of Appeals, in the discretion of
that court, be preferred over any of the causes specified in the last
section. (Id. § 792.) The courts have control of their calendars,
subject to the statutory provisions as to preferences. (Mfaretzek v.
Cauldwell, 4 Robt. 666; Smith v. Keepers, 67 How. 474. And see
Code of Civil Pro. § 17, 193.)

The general rules of practice provide that whenever in any action
an issue shall have been joined, if the defendant be imprisoned under
an order of arrestin the action, or if the property of the defendant
be held under attachment, the action shall be placed on a preferred
calendar. (Rule 36.)

The rules of the Court of Appeals provide as follows : “ Accord-
ing to existing laws, causes which are preferred take their preference
in the following order:

J. Criminal actions.
ProcrEpines To OptaIn A PREFERENCE. 159

 

Proceedings to obtain a preference.

 

2. Cases of probate, in which the appeal prevents the issuing of
letters testamentary or of general administration.

38. Appeals in which the sole plaintiffs or defendants are execu-
tors or administrators.

4. All other preferred causes.

5. Appeals from orders entitled to be heard as motions pursuant
to subdivision 4 of section 11 of the Code of Procedure (Code of
Civil Pro. § 190, subd. 2); and such appeals shall be entitled to
preference as to each other when two or more are moved at the same
time in their order on the calendar, but will be heard as preferred
cases only on motion days.” (Ct. App. Rule 20.)

The rules of the fourth department General Term provide that
preferred causes take preference in the order specified in section 791
of the Code of Civil Procedure. (Fourth Dept., Rule 3.)

SECTION II.
Procrevines Tro Ostain A PREFERENCE.

To obtain a preference in those actions by the people designated
in section 789 of the Code (ante, p. 156), the application of the
Attorney-General is sufficient. In actions falling within the first or
second subdivisions of section 791 of the Code (ante, p. 156), notice
of the particular day in the term on which the cause will be moved,
must be served as therein provided, and unless such notice is given
the cause will not be entitled to preference. (People v. Kinney, 92 N.
Y. 647.) But apreliminary order is not requisite. (Code of Civil
Pro. § 793.)

Where the right to preference depends upon facts appearing
upon the pleadings or other papers, the ordinary practice is to claim
a preference in the note of issue filed and in the notice of argument.
Upon this subject the rules of the Court of Appeals provide that any
party claiming a preference must so state in his notice of argument
to the opposite party, and to the clerk, and he must also state the
grounds of such preference so as to show to which class the case
belongs, and in appeals from orders the general character of the order
appealed from. (Ct. App. Rule 20.) Notwithstanding the provisions
of section 791 of the Code (see ante, p. 156), it is still necessary for a
party claiming a preference in the Court of Appeals to comply with
the directions of Rule 20, (Zaylor v. Wing, 83 N. Y. 527.) The
160 New Triats anp AppPEALs.

 

Proceedings to obtain a preference.

 

rules of the General Term in the fourth department provide that a
party desiring to have a case heard as a preferred cause must in his
note of issue notify the clerk that it is preferred and the class to
which it belongs, and shall also specify in his notice of argument to
the opposing party that the causc is claimed to be entitled to a.pref-
erence, briefly stating the ground on which a preference is claimed.
(Fourth Dept., Rule 3.)

Where the right to a preference depends upon facts which do
not appear in the pleading or other papers upon which the cause is
to be heard, the party desiring a preference must procure an order
therefor from the court or a judge thereof. In an action for dower
the plaintiff may obtain the order ex parte. In other cases, notice
must be given to the adverse party. A copy of the order must be
served with or before the notice of argument. (Code of Civil Pro.
§ 793; Bartlett v. Musliner, 92 N. Y. 646. See Smith v. Heepers,
66 How. 474.) The fact that there was no term of the court at
which the order could have been obtained, does not excuse a failure
to obtain the order. Snch a motion may be made upon notice before
any judge of the court in which the appeal is pending. It may be
noticed for the residence of the judge, or his office, if he has one, or
for any place which the judge upon the application of the moving
party, might name as the place where he would hear the motion.
(Bank of Attica v. Metropolitan Nat. Bank, 91 N. Y. 239.)

Such an order is not appealable, but it may be vacated by the
judges holding the term at which the preferred cause is noticed for
hearing, except that an order obtained by the plaintiff in an action
for dower is conclusive. (Code of Civil Pro. § 793.)

If a cause is improperly preferred, a motion may be made to
strike the cause from the preferred calendar. See Peyser v. Wendt,
84 N. Y. 642; Bank of Attica v. Metropolitan Nat. Bank, 91 N.
Y. 239.)
EvipENcE on APPEAL. 161

 

In what cases evidence may be received on appeal.

 

ARTICLE XI.

INTRODUCTION OF EVIDENCE UPON APPEAL.

SECTION I.
In wHat Cases EvipencrE MAY BE RECEIVED oN APPEAL.

It is a general rule that an appeal must be heard upon the plead-
‘ings and proofs, or upon the papers, presented to the court below.
(See Mitchell v. Lenox, 14 Wend. 662; Thompson v. Taylor, 18
Hun, 201 ; Wendell v. Lewis, 6 Paige, 233 ; Studwell v. Palmer, 5
Paige, 166; Bloodgood v. Clark, 4 Paige, 574; Deas v. Thorne, 8
Johns. 543; Zeese v. Smyth, 95 N. Y. 649.

But this rule is subject to certain exceptions, and in a proper
case evidence may be introduced upon the hearing of the appeal in
support of the judgment appealed from. Thus, where record evi-
dence has been imperfectly proved upon the trial, or where a fact
has been assumed on the trial which might have been established by
record evidence, and such evidence was inadvertently omitted, or
where it is evident that the record itself cannot be contradicted or
varied so that a new trial would not alter the case, the record may
be read upon the hearing of the appeal to supply thie deficiency and
sustain the judgment. (Wines v. Mayor, de. of New York, 70 N.
Y. 613; Bank of Charleston v. Emeric, 2 Sandf. 718 ; Rockwell v.
Merwin, 45 N. Y. 166; Catlin v. Grissler, 57 N. Y. 363; Jarvis
v. Sewail, 40 Barb. 449; Matter of Cocper, 93 N. Y. 507; Burt v.
Place, 4 Wend. 591; Rétchee v. Putnam, 13 Wend. 524; Lobert v.
Good, 36 N. Y. 408; Dunford v. Weaver, 21 Lun, 349; 84 N. Y.
445; Burnham v. Brennan, 10 Jones & Sp. 49.)

But such evidence is never reccived by an appellate court for
the purpose of reversing a judgment, as a reversal is only for error
committed below, and there can be no error in deciding contrary to
a record not produced. (Stilwell v. Curpenter, 62 N. Y. 639; 2
Abb. N. ©. 238; Porter v. Waring, 69 N.Y. 250; Irving Nat.
Bank v. Adams, 28 Hun, 108.

Where a plaintiff corporation has inadvertently or unadvisedly
omitted to put its charter in evidence upon the trial, it may produce
it upon the argument of the appeal where it does not appear that

1
162 New Trrats AnD APPRALS.

 

In what cases evidence may be received on appeal.

 

there was any surprise on any point in which the defense was
prejudiced or weakened by the omission. (Bank of Charleston v.
Emeric, 2 Sandf. 718.)

Where a judgment has been imperfectly proved on the trial at
the circuit, the party may produce on the argument of the appeal,
and leave with the court, a record of the judgment properly authen-
ticated to make it competent evidence. (Jarvis v. Sewall, 40 Barb.
449, See Burt v. Place, 4 Wend. 591; Williams v. Wood, 14
Wend. 126; Leobert v. Donnell, 2 Daly, 64.) And where the only
defect in the evidence at the trial was in the introduction of copy
order of affirmance of a judgment not duly certitied, that defect
may be eured by a duly certified copy produced upon the appeal and
read in bane. (Robert v. Good, 36 N. Y. 408.) Soa defect in the
form and manner of authentication of a certificate of discharge in
bankruptcy, offered in evidence on the trial, may be cured by pro-
ducing upon the argument of the appeal, a certificate duly exempli-
fied and authenticated. (Dresser v. Brooks, 3 Barb. 429.) Buta
discharge obtained pending the appeal cannot be considered upon
the appeal. (Cornell v. Dakin, 38 N. Y. 253.)

Where the due appointment of a person to office has been
assumed on the trial, and nu formal proof of the fact offered, formal
record proof of a regular appointment may be presented on the
appeal. (Wines v. Mayor, etc., of New York, 70 N.Y. 613.) But
where the absence of proof of such appointment is made the ground
of a motion to dismiss the complaint at the trial, and an exception
to a denial of the motion is duly taken, evidence of such appoint-
ment cannot be given upon the argument of the appeal in support
of the judgment, if it is not clear that the evidence offered is uncon-
trovertible. (Doser v. Mayor, etc., of New York, 21 Hun, 163.)

Where the fact that a certain act was done in the office of the
sheriff is material, and has been shown by parol upon the trial, a
duly certified copy of the certificate, filed in the county clerk’s
office, designating the location of the sheriff's office, may, if neces-
sary, be produced upon the appeal in support of the judgment.
(Dunford v. Weaver, 21 Hun, 349; 84 N. Y. 445, 451)

In an action to foreclose a mortgage covering certain leasehold
interests in lands which were described in general terms in the
mortgage, and were sufficiently identified by the pleadings, the leases
were not read in evidence upon the trial, but were read and consid-
cred upon appeal to the Court of Appeals. (Catlen v. Grissler, 75
Iw woat Cases EvInENCE MAY BE RECEIVED on ApprAL. 163

 

In what cases evidence may be received on appeal.

 

N. Y. 363.) In this case, the court reversed the judgment of the
General Term and affirmed that of the Special Term. A mortgage,
not put in evidence upon the trial, has been read upon the argument
at General Term, to supply defects in the proof. (Genet v. Daven-
port, 66 Barb. 412; 56 N.Y. 676.) And the fact of filing and
recording an order appointing the plaintiff a receiver has also been
shown upon the argument of an appeal. (Z2ockwell v. Merwin, 45
N. Y. 166.)

The illustrations above given may serve to show the nature of the
evidence and the purposes for which it may be received upon the
argument of an appeal. The rule which sanctions the introduction
of record evidence upon an appeal has no application to the ordi-
nances of a municipal corporation. (Porter v. Waring, 69 N.Y. 250.)
Neither does it apply to notarial certificates, which are but pre-
sumptive evidence, subject to explanation or contradiction by the
party against whom they are produced. (Brooks v. Higley, 11 Hun,
235.) Where proof of usage and custom is essential to the interpre-
tation of commercial contracts containing words and phrases used in
a peculiar or technica! sense, it must be given upon the trial, and
cannot be received on appeal to the Court of Appeals, either in sup-
port or in the impeachment of a judgment. (Mfarine Nat. Bank
v. Wat. City Bank, 59 N. Y. 67.)

Upon an appeal to the General Term from an order, affidavits
made since the hearing at Special Term, cannot be received even by
consent of parties. (Zhompson v. Taylor, 13 Hun, 201. And see
Leese v. Smyth, 95 N.Y. 649.) But a stipulation, made by a person
who has acquired an interest in the action since its commencement,
waiving all notice of a motion and all objection to an order appealed
from, may be produced and filed by the respondent upon the argu-
ment at General Term, and may be there received and considered,
for the purpose of removing any objection founded upon want of
notice, and of concluding such person from subsequently questioning
the validity of the order. (Schell v. Devlin, 82 N. Y. 333.)

Where an appeal is taken upon the facts from a decree or order
of a surrogate, the appellate court has the same power to decide the
questions of fact which the surrogate had, and may in its discretion
receive further testimony or documentary evidence, and appoint a
referee. (Code of Civil Pro. § 2586.)

Where an appeal for a new trial is taken to a County Conrt,
164 New Trrats ano AppEALs.

 

General provisions of the Code of Civil Procedure.

 

evidence is introduced and received upon the trial as if the action
had been originally brought in that court.

ARTICLE XII.

AMENDMENTS ON APPEAL.

SECTION I.
GeneraL Provisions or THE Cope ur Civi, PRocEDuURE.

The Code of Civil Procedure provides that “In a court of rec-
ord, where a verdict, report, or decision has been rendered, the judg-
ment shall not be stayed, nor shall any judgment of a court of
record be impaired or affected by reason of either of the following
imperfections, omissions, defects, matters or things i in the process,
pleadings, or other proceedings :

“1. For want of a summons or other writ.

“9. For any fault or defect i in process, or for misconceiving a
process, or awarding it to a wrong officer.

_ “8, For an imperfect or insufficient return of a sheriff or other
officer, or because an officer has not subscribed a return actually
made by him.

“4, For a variance between the summons and complaint.

“5, Fora mispleading, insuflicient pleading, or jeofail.

“6, For want of a warrant of attorney by alter party.

“7, For the appearance by attorney of an infant party, if the
verdict, report, or decision, or the judgment is in his favor.

“8. For omitting to allege any matter, without proof of which
the verdict, report or decision ought not to have been rendered.

“9. Fora mistake in the naine of a party or other person ; or
in asum of money; or in the description of property ; or in recit-
ing or stating a day, month or year; where the correct name, sun,
description, or date has been once rightly stated, in any part of the
pleadings or other proceedings.

“10, For a mistake i in the name of a juror or officer.

“41. Foran informality i in entering judgment, or making up
the judgment-roll.

“12. For an omission on the part of a referee to be sworn; or
for any other default or negligence of the elerk, or any other of-
Amenpmtnts on APPEAL. 165

 

General provisions of the Code of Civil Procedure.

 

cer of the court, or of a party, his attorney or counsel, by which
the adverse party has not been prejudiced.” (Code of “Civil Pro.
§ 721.)

“Fach of the omissions, imper fections, defects, and variances
specified in the last section, and any other of like nature, not being
against the right and justice of the matter, and not altering the issue
Ketween the parties, or the trial, must, when necessary, be supplied,
and the proceeding amended, by the court wherein the judgment is
rendered, or by an appellate court.” (Id. § 722.). The sections
quoted above apply to all courts of record. (Id. § 3347, subd. 6.)

“The court may, upon the trial, or at any other stage of the
action, before or after judgment, in furtherance of justice, and on
such termsas it deems just, amend any process, pleading, or other
proceeding, by adding or striking ont the name of a person asa
party, or by correcting a mistake in the name of a party, or a mis-
take in any other respect, or by inserting an allegation material to
the case; or, where the amendment does not change substantially the
claim or cena by conforming the pleading or other proceeding
to the facts proved. And, in every stage of the action, the court
must disregard an error or “defeck in the pleading or other proceed-
ings, which does not affect the substantial rights of the adverse
party.” (Id. § 723.) This section applies to all courts. (Id. § 3347,
subd. 6.)

‘*The court may likewise, in its discretion, and upon such terms
as justice requires, at any time within one year after notice thereof,
relieve a party from a judgment, order or other proceeding, taken
against him through his mistake, inadvertence, surprise or excusable
neglect ; and may supply an omission in any proceeding. Where a
proceeding taken by a party fails to conform to a provision of this
act, the court may in like manner, and upon like terms, permit an
amendment thereof, to conform it to the provision.” (Id. § 724.)

“ The court to which a return is made by a sheriff or other officer,
or by a subordinate court or other tribunal, may, in its discretion,
direct the return to be amended, in matter of form, either before or
after judgment.” (Id. § 725.)

“ Where an original pleading or paper is lost, or withheld by
any person, the court may authorize a copy to be filed and used
instead of the original.” (Id. § 726.) The last section, and the two
sections immediately preceding it, apply to all courts of record.
(Id. § 3347, subd. 6.)
166 New Triats anv APPEALS

 

Amendment of pleadings on appeal.

 

The Code also provides for the disregard of the want of a title
or defect in the title of an affidavit which intelligibly refers to the
action or special proceeding in which it is made (Id. § 728), for
the amendments of defects in bonds or undertakings required by
statute to entitle him to a right or privilege, or to take a proceed-
ing (Id. §§ 729, 739), and for supplying defects in the proceedings
to perfect an appeal, or to stay the execution of the judgment or
order appealed from. (Id. § 1303. Sce ante, p. 116.) It also pro-
vides that the court must, upon application, allow a pleading inter-
posed in an action tried before a justice of the peace to be amended
upon appeal, if substantial justice will be promoted thereby. (Id.
§ 2944.)

SECTION IL.
AMENDMENT oF PLEADINGS on APPEAL.

The power to amend a pleading is not confined to the court at
‘the Cireuit, Trial or Special Term, but may be exercised by an
appellate court on appeal when a proper case for amendment is
presented.

If the objection which the appellant urges upon the appeal is
one which could have been met upon the trial by an amendment of
the pleadings, the amendment which could have then been made
may be ordered by the appellate court on the hearing, nunc pro
tunc (Leeder v. Sayre, 70 N. Y. 180; Lounsbury v. Purdy, 18
N. Y. 515; Pratt v. Hudson River R. LR. Co., 21 N. Y. 305;
Bate v. Graham, 11 N. Y. 287; Hudson v. Swan, 7 Abb. N. C.
324; Knickerbocker Life Ins. Co. v. Nelson, 7 Abb. N. C. 181, x. ;
Foote v. Roberts, T Rob. 17; Coleman v. Playsted, 36 Barb. 26;
Wright v. Whiting, 40 Barb. 235, 242; Harrower v. Heath, 19
Barb. 331 ; Cady v. Allen, 22 Barb. 388; Poillon v. Volkenning,
11 Hun, 385; Clemons v. Davis, 4 Hun, 260; Clark v. Dales, 20
Barb. 42; Kennedy v. Crandell, 3 Lans. 1), or the appellate court
may disregard the defect, or consider the amendment made. _ (Id.)
Thus where the plaintiff was permitted upon the trial of an action
for false imprisonment to give proof of the effect of his arrest upon
his business, although no special damages were alleged in the coim-
plaint, the court on appeal considered the complaint amended by the
addition of the necessary allegations. (Clemons v. Davis, 4 Hun,
AMENDMENT oF Pieapines on APPEAL. 167

 

Amendment of pleadings on appeal.

 

260.) So where the plaintiff upon the trial of an action of trover
proved a demand, although no demand was alleged in the com-
plaint, the General Term on appeal allowed an amendment inserting
this allegation. (Zripp v. Pulver, 2 Hun, &11.)

Where the complaint omits to aver a necessary fact, but that fact
is alleged in the answer, the defect in the complaint may be supplied
by amendment even after appeal to the Court of Appeals. (Date v.
Graham, 11N. Y. 237; Haddow v. Lundy, 59 N. Y. 320.) But where
a fact essential to a cause of action is omitted from the complaint,
is not supplied by the answer, and a motion to dismiss the complaint
for insufficiency, made at the opening of the trial, is denied and an
exception taken, such denial is error for which the judgment may
be reversed and a new trial ordered, although an amendment might
have been granted upon the trial had an application to amend been
made. In such case a dismissal is a legal right, and not a matter of
discretion. (Zooker v. Arnoux, 76 N. Y.397. See Scofield v. White-
legge, 49 N. Y. 259. But see Lounsbury v. Purdy, 18 N. Y. 515.

Where the complaint docs not state all the facts necessary to sup-
port a cause of action, but evidence proving a cause of action is
admitted on the trial without objection, and no question is raised
below as to the sufficiency of the complaint to sustain the cause of
action proved, the court, on appeal, will consider the case upon the
cause of action disclosed by the evidence, and disregard any objec-
tions to the sufficiency of the pleadings which were not made in the
court below. (Anapp v. Simon, 96 N. Y. 284; Cowing v. Altman,
79 N. Y. 167; Tisdale v. Morgan, 7 Hun, 583; Losebrooks v.
Dinsmore, 36 How. 188; Coster v. Mayor of Albany, 43 N. Y.
399, 408, 404; Sherman v. Parish, 53 N.Y. 483, 488; Zyng v.
Commercial Warehouse Co., 58 N. Y. 308; McKnight v. Devlin,
52 N. Y. 399.) But where the plaintiff fails to prove the cause of
action set up in his complaint, the objection is properly taken upon
the trial, and no amendment of the pleading is there asked for or
ordered, the court, on appeal, cannot consitler the cause of action
proved but not alleged, nor can it conform the pleading to the proof
by amendment. (Southwick v. First Nat. Bank of Memphis, 84
N. Y. 420.)

An error in the description of the representative character of the
plaintiff may be amended by the General Term (Jéisley v. Weght-
man, 13 Hun, 163) ;and a mere formal error in the name of the
plaintiff which might properly be amended by the court of original
168 _ New Trrats anp AppEALs.

 

Amendment of pleadings on appeal.

 

jurisdiction without imposing terms, may be disregarded by, the
Court of Appeals. (Bank of Hlavana v. Magee, 20 N. Y. 355.)
Anerror in the name of the defendant corporation may also be
corrected by amendment. (Tasker v. Wallace, 6 Daly, 364.)

Where a widow, entitled to maintain ejectment as guardian in
socage of her infant children, brings the action as their guardian ad
litem, and the objection that the infants have no legal capacity to
maintain the action has not been taken below by answer or otherwise,
the court will allow an amendment if necessary to meet the
objection when raised for the first time on appeal. (Bartholomew
v. Lyon, 67 Barb. 86.) So a complaint may be amended upon
appeal by alleging that the plaintiffs are surviving partners instead
of the allegation that they are tenants in common (Leeder v. Sayer,
70 N. Y. 180); or by striking out the name of an unnecessary party
plaintiff. (Ackley v. Tarbow, 81 N. Y. 564.)

The power of the General Term to allow an amendment of the
complaint toconform it to the proof cannot now be questioned when
a proper case is presented for the exercise of such power. (Smith v.
Holland, 61 Barb, 333; Harris v. Tumbridge, 83 N. Y. 92, 97.)
Practically, the only limitation upon the right to amend the plead-
ings is that a new cause of action must not be introduced. (Id.;
Reeder v. Sayre, 70 N. Y. 180.) The General Term will not amend
a pleading nune pro tunc when the effect of the amendment will be
to substantially change the claim or defense. (Storrs v. lint, 14
Jones & Sp. 498.) The limitation upon the power of the appellate
court in this respect seems to be the same as that of the court upon
the trial, though it has been held that upon appeal the court may
treat the pleadings as having heen amended in conformity with the
evidence in any respect in which the court ought clearly to allow an
amendment at Special Term. (Wright v. Whzting, 40 Barb. 235,
242.) :
Although the Court of Appeals in a proper case will allow an
amendment of the pleadings, that power will not be exercised unless
itis plain that no substantial right of the adverse party will be
affected. (Pitch v. Mayor, etc., of New York, 83 N.Y. 500.) The
amendment may be allowed to sustain, but never to reverse a judg-
ment. (Volkening v. DeGraaf, 81 N. Y. 268. See also Brown v.
Colie, 1E. D. Smith, 265; Gasper v. Adams, 2+ Barb. 287 ; Enyvis
y. Lurniss, 8 Abb. 82; Williams v. Birch, 6 Bosw. 674; AleGinnis
v. Mayor, ete., of New York, 6 Daly, 416.) The application for
AMENDMENT oF PLEADINGS on APPEAL. 169

 

Amendment of pleadings on appeal.

 

leave to amend ought to be made upon the trial, or upon the appeal
to the General Term (See Mitch v. Mayor, ete., of the City of New
York, 88 N. Y. 500, 502) ; and the failure of the party to ask for the
amendment below may be sufficient grounds for denying the appli-
cation upon appeal unless it is apparent that the case is one where
terms could not properly have been imposed as a condition of grant-
ing the amendment had the application been addressed to the trial
court. (Bank of Havana v. Magee, 20 N. Y. 355.)

Where a cause has been tried at the Circuit upon a complaint
and answer, without objection to the absence of a reply, it will be
too late for the defendant to claim upon appeal that the facts stated
in the answer are conclusively admitted. Ifa reply is deemed essen-
tial to make the verdict conform to the state of the pleadings upon
the record, leave will be given to file one nune pro tune. (Smith
v. Lloyd, 18 Barb. 522.)

The new Code authorizes an amendment of the pleadings upon
an appeal to the County Court from a judgment of a justice of the
peace, if substantial justice will be promoted thereby. (Code of
Civil Pro. § 2944.) The old Code contained a similar provision.
(See Code of Procedure, § 64, subd. 11.)

It was held under the old Code that the power to amend the
pleadings upon appeal to the County Court from a judgment of a
justice of the peace, where a new trial in the appellate court was a
matter of right, was not intended to be so exercised as to allow
an entire change of the issues joined in the court below, but only to
allow such changes of the pleadings as to enable the parties fully and
fairly to try such issues; and that it was error to allow an answer
con isting of a general denial to be so amended on such appeal as to
set up a plea of payment, set-off or counter-claim, (/2eno v. Mfills-

paugh, 14 Hun, 229.)

An amendment may. be ordered at the General Term, without
any formal notice of motion for that purpose, when the object of the
amendment is only to conform the complaint to the facts found, and
where the record furnishes the only grounds for or against the same.
(Clark v. Dales, 20 Barb. 42. See Bowdoin v. Coleman, 6 Duer,
182;3 Abb. 431.) But where the amendment sought is of such a
nature as to substantially change the claim or defense, it will not be
granted, if indeed it can be granted at all, except by a motion made
on notice, and in which the necessary terms can be imposed. (Smith

v. Mayor, etc., of New York, 37 N. Y. 518, 521.)
170 New Trrats snp APPEALS.

 

Amendment of orders,

 

SECTION III.
AMENDMENT OF ORDERS.

Where a party to an appeal to the General Term dies after argu-
ment and before decision, it is the proper practice for the court in
announcing its decision to make its order bear date as of the day
when the appeal was submitted, of any subsequent day prior to such
death, or if this is omitted, to permit the record to be corrected,
upon a motion made upon notice, by changing the date of the order
to a day prior to the death of the party, thus making it conform to
the fiction by which parties and attorneys are presumed to be pres-
ent in court at every stage of the action or proceeding. (Matter of
Beckwith, 87 N. Y. 508; Carter v. Beckwith, 82 N. Y. 83. See
Beach v. Gregory, 2 Abb. 203 ; 3 Id. 78; 1 Hilt. 201; De Agredav.
Mantel, 1 Abb. 1380.)

The General Term of the Supreme Court has power to amend its
record after appeal to the Court of Appeals by inserting in an order
of reversal that its decision was made upon questions of fact (Guwern-
sey v. Miller, 80 N. Y. 181; Wational City Bank of N. Y. v. New
York Gold Exch. Bank, 97 N. Y. 645), or by adding any other
statement of the ground of reversal although only one of the jus-
tices who heard and decided the appeal is present when the amend-
iment is made. (Buckingham v. Dickinson, 54 N. Y. 682. See
Dinkelspiel v. Levy, 12 Hun, 130.) Thisamendment is permitted
only to conform the order to the decision actually made, and no new
decision can be substituted therefor by way of amendment to defeat
an appeal already taken to the Court of Appeals. (Hamlim v. Sears,
82 N. Y. 827.) If, however, the record does not show the fact that
the reversal was upon both questions of fact and of law, the appellant
before argument and submission of the case in the Court of Appeals,
and with proper diligence, should take proceedings to have the order
so amended by the General Term as to express the truth, and the
application for amendment will be too late if made afterwards. (Id.)

Where the order entered on the decision of the cause in the
Court of Appeals does not correctly state the judgment pronounced
in that court, it will there be amended on motion, notwithstanding
the remittitur may have been sent to the clerk of the court below
AMENDMENT oF THE Casz on APPEAL. 171

 

Upon appeal from another court.

 

and filed there. (Palmer v. Lawrence, 5 N. Y. 455.) And after an
appeal has been taken to the Court of Appeals the court below has
still control over its judgment for the purpose of making amend-
ments, and the judgment is still regarded as remaining in that court
for such purpose. (Judson v. Gray, 17 How. 289.)

An application to amend, during the pendency of an appeal from
one court to another, should be addressed to the court below (Luys-
ter v. Snifin, 3 How. 250), or, if the appeal is to the General Term
cf the same court, the motion should be made at Special Term.
(Brown v. Colie, 1 E. D. Smith, 265.) The Court of Appeals has
no power to amend a record of the Supreme Court. Any amend-
ment of the record must be songhtin that court. (Xenyon v. New
York Cent. & H. 2. R. Le. Co., 76 N. Y. 607.)

Where the order of the General Term reviewing the judgment
of the court below and directing a new trial is amended after appeal
to the Court of Appeals by adding the statement that the reversal
was upon questions of fact and law, and a motion is made in the
latter court to conform the return to the amendment made in the
court below, the Court of Appeals may impose terms upon grant-
ing the motion,—such as the payment of costs of opposing the
motion and granting leave to the appellant to withdraw his appeal
and go to a new trial under the order of the court below if he so
elects, without costs of appeal. (Mat. City Bank of N. Y. v. New
York Gold Hx. Bank, 97 N. Y. 645.)

SECTION IV.
AMENDMENT OF THE Case on APPEAL.

Upon appeal from another court.—It sometimes happens
that by an inadvertence of counsel the facts which a party desires
reviewed by the Court of Appeals are presented in such a manner
that it is impossible, without violating well-settled rules of practice,
to do justice between the parties. In such cases the appellate court
has power to suspend judgment in order to enable the party to
apply to the court from whose judgment the appeal was taken for a
re-scttlement of the case. (tice v. Lsham,1 Keyes, 44, 47; see
Westcott v. Thompson, 16 N. Y. 613.) The Court of Appeals has
ho power to allow a party to insert an exception in the case filed
in the court below, although it appears by affidavit that the excep-
172 New Trrats anp APprEA.s.

 

Upon appeal from another court.

 

tion was taken on the trial. (Kenyon v. Mew York Cent. & I. R.
R. R. Co., 76 N. Y. 607.) But if an error has been committed in
turning the case into a bill of exceptions and in settling the same,
or an exception actually taken at the trial has in any other way
been inadvertently omitted from the bill of exceptions, the Court
of Appeals may make an order staying the argument of the appeal
in that court to enable the appellant to apply to the Supreme Court
for are-settlement of the case or exceptions. (Livingston v. Miller,
7 How. 219.) It is not necessary to first apply to the Court of
Appeals to remit the record to the Supreme Court for the purpose
of resettlement. (Witbech v. Waine, 8 How. 433. But see
Adams v. Bush, 2 Abb. N. §.118.) The same rule applies to the
practice on appeal to the Supreme Court from an inferior court or
to an appeal to the Common Pleas from the City Court of New
York. The party should, if necessary, obtain a stay in the court in
which the appeal is pending, and then apply to the court below for
the re-settlement. This application should be made to a justice at
Special Term. (See Wetbeck v. Waine, 8 How. 433; Tadicott v.
Rosenberg, 3 Daly, 203, 213; 8 Abb. N. 8. 287; Gould v. Glass,
19 Barb. 179; Luyster v. Snifin, 3 How. 250; 1 Barb. 428. But
see Adams v. Bush, 2 Abb. N. 8. 118; Livingston v. Miller, 7
How. 219, 221.) After the court below has corrected the error in
the record, it is a matter of course to allow a copy of the record
previously sent to the appellate court to be also amended. But the
amendment will be allowed only upon such terms as will prevent
injustice. (Luyster v. Snifin, 3 How. 250; 1 Barb. 428. Sce
Natl. City Bank of N. ¥.v. New York Gold Exch. Bank,
97 N. Y. 645.) A mere clerical error in the case, such as an omis-
sion to show that a judgment was rendered such as is set forth in
the notice of appeal, may be cured by amendment (Lahens v.
Fielden, 83 Abb. Ct. App. 1; 15 Abb. 177; sec Beecher v. Conradt,
11 How. 181; 3 Abb. Ct. App. 1, 7.), and on a motion for a new trial
on a case the judge may amend it so as to agree with his minutes.
(Toplitz v. Raymond, 10 Abb. 60.) A case may also be amended to
conform to the clerk’s minutes by changing the statement of the
disposition of the cause in the court below from the direction of a
verdict subject to the opinion of the court to exceptions to be
heard in the first instance at General Term. (Thacher v. Hannahs,
4 Rob. 407.)

After the decision of an appeal it is too late to move for a re-set-
s

PRESUMPTIONS IN FAVOR OF JUDGMENT. 1738

 

Appellant must show error,

 

tlement of the case or exceptions (/%sh v. Wood, 2 Abb. 419;
Fitch v. Livingston, 7 How. 410. But see O’ Gorman v. Kamack,
5 Daly, 517); and it has been held that while specific errors and
omissions in the case and exceptions may be corrected and supplied
after an appeal has been taken to the Court of Appeals, it is not
proper to send the entire case back for re-settlement. (Catlin v.
Cole, 19 How. 82; 10 Abb. 387.)
‘The General Term has no power, on motion, to correct a case as
settled. (Porter v. Parks, 2 Hun, 675.) But if the case is not
settled according to the rules of the court the General Term may
send the case back to the trial judge or referee for re-settlement.
(Rule 34; Smith v. WV. Y. Cent. éd H.R. R. R. Co., 80 Hun, 144;
Mead v. Shea, 26 Hun, 393; McNish v. Bowers, 30 Hun, 214.) If
the printed case is defective it should be corrected by a proper
application to the court at Special Term before the case is brought
on for argument, or the court in its discretion may disregard the
alleged error. (See Hackley v. Draper, 2 Hun, 523; 4 N. Y.
Supr. Ct. [T. & C.] 614.) The appellant cannot have a rehearing
at the General Term upon a new case. (Wright v. Terry, 24 Hun,
228.)

ARTICLE XIII.

GENERAL PRINCIPLES GOVERNING THE Decision or APPEALS.

SECTION I.

PRrrEsuMPTIONS IN FAVOR OF THE JUDGMENT OR ORDER
APPEALED FROM.

Appellant must show error.—It isa general rule that in deter-
mining an appeal, every presumption is to be indulged in favor of
the judgment or order from which the appeal is taken. (Stand-
ard Oil Co. v. Triumph Ins. Co., 64 N. Y. 85.) It is therefore
incumbent upon the party seeking the reversal of a judgment or
order to show affirmatively that an error was committed to his
prejudice. (Tracey v. Altmeyer, 46 N. Y. 598, 604; Appleby v.
Erie County Savings Bank, 62 N. Y. 12, 18; Carman v. Pultz,
21 N. Y. 547; Briant v. Trimmer, 47 N. Y. 96.) It is not enough
to show that error may have been committed. This will not over-
throw the presumption that all things have been transacted cor-
rectly until the contrary appears. (Zracey v. Altmeyer, 46 N. Y.
174 New Trrats anp Apreats.

 

Presumptions in support of findings.

 

598, 604.) An appellate court will presume nothing in favor of the
party alleging error ; and if compelled, through imperfection in the
statement of facts contained in the appeal-book, to resort to pre-
sumptions, will adopt such only as will sustain the judgment. (Car-
man Vv. Pultz,21 N. Y. 547; Smith v. Newland, 9 Hun, 553, 554;
Phillip v. Gallant, 62 N. Y. 256, 265.)

Presumptions in support of findings.—In reviewing a judg-
ment rendered upon a trial before a court or referee, where material
facts appearing in the case and essential to uphold the judgment
have not been expressly found, the appellate court will presume, in
support of the judgment, that such facts were found in favor of the
party recovering, and were considered by the trial court. (Sheldon
v. Sherman, 42 N. Y. 484, 489; Meyer v. Lathrop, 73 N. Y. 315,
321; Hays v. Miller, 70 N. Y. 112, 116 ; Grant v. Morse, 22 N.Y.
323 ; Lider v. Powell, 28 N. Y. 310; Doty v. Carolus, 31 N. Y.
549 ; Oberlander v. Speiss, 45 N.Y. 175 ; Brainerd v. Dunning, 30
N. Y. 211; Phelps v. McDonald, 26 N. Y. 82; Smith v. Coe, 29
N.Y. 666; Milhau v. Sharp, 27N. Y. 624. But this rule is
applicable only where from the case it appears that such additional
findings of fact would have been warranted by the evidence (See
Oberlander v. Speiss, 45 N. Y. 175, 179); though, if none of the
evidence appears in the case, then the rule necessarily requires the
presumption that the evidence was sufficient. (Phillip v. Gallant,
62 N. Y. 256, 265.) The rule applies only to such facts as being
found would tend to support the special findings. The rule is based
upon the reasonable intendment that ail supporting facts were taken
into consideration by the trial court, and it would be a perversion of
the rule to apply it to inconsistent facts not conclusively established.
As to such facts there can be no presumption that they were found.
(Armstrong v. Du Bois, 90 N. Y. 95, 99.) An appellate court can-
not assume the existence of facts in opposition to those found.
(Comstock v. Ames, 3 Keyes, 357.) And where the facts found are
insnfficient to sustain the conclusions of law, and the omission does
not appear to be casual or negligent, but one of design, as where
there has been a request to find the omitted facts and a refusal, the
court will not presume in aid of the judgment that there was a find-
ing not expressed in terms. (Dfeyer v. Amidon, 45 N.Y. 169, 174;
Comstock v. Aines, 3 Keyes, 357, 359.) In most of the cases in
whieh the rule has been applied, the facts as found were suflicient
Princirtes Governing THE Decision or APPEALS. 175

 

Error in receiving or rejecting evidence.

 

to sustain the judgment, and the court declined to look into the
testimony to vitiate it. Facts not found, and as to which no finding
was requested, cannot be considered for the purpose of reversing a
judgment. (Burnap v. National Bank of Potsdam, 96 N.Y. 125;
Thomson v. Bank of British North America, 82 N.Y. 1.) Where
the findings of the court or referee are contradictory, the defeated
party will be given the benefit of those which are most favorable to
him in aid of his exceptions to the conclusions of law. (Bonnell v.
Griswold, 89 N. Y. 122; Schwinger v. Raymond, 83 N. Y. 192.)

SECTION II.
Error i Recetvine or Revectina Evipence.

Where a cause is taken to appellate court for review, every reason-
able intendment is in favor of the judgment, and the rulings and
decisions at the trial; and yet the appellant has a right to a review
upon questions of law, and to a reversal of a judgment for sub-
stantial errors committed at the trial. (Hobart v. Hobart, 62 N. Y.
80.) It is a general rule that litigants may present to the trial court
all relevant and competent evidence bearing upon the issue between
them, and that incompetent and irrelevant evidence shall be ex-
cluded, so that the case shall be heard and decided upon the com-
petent and legal proof. (Matter of will of Smith, 95 N. Y. 516,
527.) A party is entitled to the benefit of any competent evidence
he may offer bearing upon a controverted question of fact embraced
in the issue; and if the court excludes such evidence, its rejection is
substantial error for which the judgment must be reversed upon
appeal, unless it can beseen that the rejection could not legitimately
have affected the result. (Holcomb v. Holcomb, 20 Hun, 156;
Hobart v. Hobart, 62 N. Y. 80.) So an error in receiving incom-
petent evidence, if properly excepted to, can be disregarded on
nppeal only when it can be seen that it did no harm. (Foote v.
Beecher, 78 N. Y. 155 ; Schoonmaker v. Walford, 20 Hun, 166 ;
Trimmer v. Trimmer, 18 Hun, 182; Green v. Disbrow, 56 N. Y.
334, 337; Curroll v. Deimel, 95 N. Y. 252,256; Holcomb v. Hol-
comb, 95 N. Y. 816.) The effect of the error in receiving incom-
petent evidence or in rejecting that which is competent is the same
whether the action is legal or equitable. (Foote v. Beecher, 78 N.
Y. 155; Hobart v. Hobart, 62 N. Y. 80, 81. But see Forrest v.
176 New Triars AnD APPEALS.

 

Error in receiving or rejecting evidence.

 

Forrest, 25 N. Y. 501; Clapp v. Fullerton, 34 N. Y. 190; Church
v. Aidd, 3 Hun, 254; Platt v. Platt, 2 N.Y. Sup. Ct. (T. & C.) 25.
‘See also Schoonmaker v. Walford, 20 Hun, 166.)

If the evidence, though incompetent, is slight or irrelevant, or if
without it the fact is conclusively established by other evidence, the
error in receiving it may be disregarded on appeal because it could
not have injured the other party. (foote v. Beecher, 78 N. Y. 155;
Hensler v. Sefrin, 19 Hun, 564, 668; Woodruf? v. McGrath, 32
N. Y. 255; Ward v. Kilpatrick, 85 N. Y. 418, 417; Toney v.
Berger, 93 N. Y. 524, 581; Wells v. Cone, 55 Barb. 585, 589;
Bort v. Smith, 5 Barb. 283, 285; Crary v. Sprague, 12 Wend.
41; Milliner v. Lucas, 3 Hun, 496, 498; 5 N. Y. Sup. Ct. (T.
& C.) 577; Bennett v. Austin, 5 Hun, 536; Church v. How-
ard, 17 Hun, 5, 9; Jaeger v. Kelly, 7 Rob. 586; Lamb v. Camden
& Amboy R. R. & T. Co.,2 Daly, 454.) If improper evidence is
given upon the trial, although it be merely cumulative, it will be a
cause for reversal. (Osgood v. Manhattan Co., 3 Cow. 612; Baird

‘v. Gillett, 47 N. Y. 186.) And when illegal evidence is admitted
which bears in the least degree upon the result, it is fatal. (Id.; Wor-
rall v. Parmalee, 1 N. Y.519.) But a judgment will not be reversed
for the admission of improper, irrelevant, immaterial or cumulative
testimony, where abundant other competent evidence was given to
sustain the finding, and the court can see that the result was not and
could not have been affected by the error. (Mdlliner v. Lucas, 3 Hun,
496; 5 N.Y. Sup. Ct. (T. & C.] 577; Baird v. Gillett, 47 N.Y. 186 ;
Aghley v. Marshall, 29 N. Y. 494, 508; Barton v. City of Syrcouse,
37 Barb. 292, 300; Orty Bank of Brooklyn v. Dearborn, 29 N.Y.
244,246; Vandervoort v. Gould, 36 N. Y. 636, 644; Lundle v.
Allison, 34 N. Y. 180.) And if a defendant established no defense
to the case made against him upon the trial, it is not material that
the plaintiff has committed any number of legal errors in the intro-
duction of evidence to answer what called for no answer. (Bronson
v. Tuthill, 3 Keyes, 32.) So if evidence is improperly rejected,
but the appellate court can see that the evidence, if given, could not
have changed the result, the error is not one calling for a reversal of
the judgment. (City Bank of Brooklyn v. Dearborn, 20 N. Y.
244.) But the fact that the appellant was not injured by the exclu-
sion of the evidence must clearly appear to justify the appellate
court in disregarding.the error. If the judgment is sought to be
sustained upon the ground that the facts established by the verdict
Privcietys Governing THE Decision on APPEALS. 177

 

Error in receiving or rejecting evidence.

 

show that the evidence, if admitted, would not have changed the
result, it must appear that such is necessarily the effect of the ver-
dict; not that the jury migAé, but that they must have found as
claimed. (Starbird v. Barrons, 43 N. Y. 200.) To justify an appel-
late court in disregarding the erroneous rejection or admission of evi-
dence, it is not enough that possibly the result would have been the
saine if the excluded evidence had been received or the improper evi-
dence had been exelnded (Id.; Wilder v. Peabody, 21 Hun, 376 ;
Hydorn v. Cushman, 16 Hun, 107; Carroll v. Diemel, 95 N. Y.
252), nor even that it is probable that the appellant sustained no
injury by the error. (Underhill v. New York & Harlem R. R.
Co., 21 Barb, 489.) It must appear that the evidence could not by
any possibility have affected the result. (Id.; Waring v. United
States Tel. Co., 4 Daly, 233; 44 How. 69; Havemeyer v. Havemeyer,
11 Jones & Sp. 506; Bennett v. McGuire, 58 Barb. 625; 5 Lans.
183 ; Hrben v. Lorillard, 19 N.Y. 299.) Illegal evidence cannot be
said to be entirely harmless where the party objecting to it is
obliged to call a witness to explain or contradict it. (Anderson v.
Lome, Watertown & Ogdensburgh BR. R. Co., 54 N. Y. 334.) It is
presumptively injurious, though the presumption may be repelled
by the record. (Id.; Coleman.v. People, 58 N. Y. 555; Matter of
will of Smith, 95 N.Y. 516, 527; Vandervoort v. Gould, 36 N. Y.
639, 644; People v. Gonzalez, 85 N. Y. 49, 60.) If it may have
affected the verdict, the error in its reception will not be cured by a
direction to the jury to disregard it. (Hrben v. Lorillard, 19 N. ¥.
299; O'Sullivan v. Roberts, 7 Jones & Sp. 360; Newman v. God-
dard, 3 Hun, 70; 5 N. Y. Sup. Ct. [T. & C.] 299; 48 How. 363 ;
Allen v. James, 7 Daly, 13; Wright v. Equitable Life Assurance
Society, 9 Jones & Sp. 1. See Tabor v. Van Tassell, 86 N. Y.
642; Traver v. Kighth Ave. R. R. Co., 3 Keyes, 497; Branch v.
Levy, 12 Jones & Sp. 507; Green v. Hudson River R. R. Co., 82
Barb. 25, 34.) But an error in excluding proper evidence may
be cured by subsequently admitting it when offered by the party, if
it appears that the party sustained no injury by the exclusion in the
first instance. (Ved v. Thorn, 88 N. Y. 270,277; Park Bank v.
Tilton, 15 Abb. 384; Morgan v. Reid, 7 Abb. 215; Hay v. Doug-
lays, 8 Abb. N.S. 217; 2 Sweeney, 49; Jackson v. Parkhurst, 4
Wend. 869; Forrest v. Forrest, 6 Duer, 102, 117.)

Where certain. issues of fact in an equity action have been tried
by a jury, apa on such trial improper evidence has been received
178 New Trrats anp. APPEALS.

 

Upon appeal taken from a Surrogate’s Court.

 

under objection and exception, and on the trial of the remaining
issues at Special Term held by another judge a case containing the
evidence given on the jury trial is offered and received in evidence
without objection, the.exceptions taken to the rulings of the court
upon the trial before the jury will not be available on appeal.
(Arnold v. Parmalee, 97 N.Y. 652.) To make the exceptions
available in such case, the exceptant, when the testimony is offered
at the Special Term, should state that he intends to rely upon the
exceptions taken, and should call upon the judge holding the term
to make ariling upon the portions of the testimony objected to,
either by renewing the objection, or by motion to strike out the
testimony. (Id.) But where the cause is brought to a hearing at
Special Term before the judge who presided at the jury trial, and
the verdict of the jury is set aside, and the court proceeds to
make its own finding of fact contrary to the verdict, the case will
be reviewed upon appeal as if tried throughout without the inter-
vention of a jury, and exceptions to testimony taken upon the trial
will be available on appeal. (Carroll v. Deimel, 95 N. Y. 252.) It
has also been held that where questions of fact have been submitted
to a jury as a substitute for a feigned issue in an equity action, and
erroneous rulings have been made by the justice presiding at the
trial before the jury, by which proper evidence was rejected, or
improper evidence received, or unsound rules applied to the consid-
eration of the evidence in the submission of the case to the jury,
and these rulings have been duly excepted to, on an appeal from
the judgment and from an order denying a motion for a new trial of
the questions so submitted, the judgment should be reversed if the
errors were such as might have influenced the jury in arriving at
their verdict, and it appears from the decision of the justice before
whom the issues of the action were tried at Special Term, and
from the judgment entered thereon, that the findings of the jury
were relied upon by him to any extent in finally determining the
action. (Bowen v. Becht, 35 Hun, 434.)

 

Upon appeal taken from a Surrogate’s Court.—The Code
declares that no decree or order of a surrogate shall be reversed for
any error in admitting or rejecting evidence, “ unless it appears to
the appellate court that the exceptant was necessarily prejudiced
thereby.” (Code of Civil Pro. § 2545.) Before this section was
enacted the appellate court disregarded errors in the admission or
Error in Recervine or Resectina Eviwence. 179

 

Insufficiency of objections to evidence.

 

rejection of evidence in a proceeding before a surrogate for the pro-
bate of a will, if in the judgment of the court the error did not
affect the substantial rights of the parties. (Brick v. Brick, 66
N. Y. 144, 156; Clapp v. Fullerton, 34 N.Y. 195; Schenck v.
Dart, 22 N. Y.421.) The section was probably intended to incor-
porate into the statute the pre-existing rule administered by the
courts. Under this section, when the court of review finds that
incompetent cvidence has been received or competent evidence
rejected, it then becomes its duty to determine whether the error
prejudiced the party against whom it was committed. If it appears
to the court that it did not, then its duty is plain. If, on the other
hand, the evidence erroneously admitted or rejected was important
and material, and the court cannot say that notwithstanding the
error, the judgment is right, or if it entertains a reasonable doubt
upon the subject, then a case is presented where the party except-
ing was necessarily prejudiced within the section. (fatter of wilt
of Smith, 95 N. Y. 516.) To justify a reversal for an error in
admitting or rejecting evidence, it must not only appear that incom-
petent evidence was received, or pertinent evidence was excluded,
but the appellate court must also be satisfied that had competent
evidence, which was rejected, been received, the appellant’s case
would not have failed, or that, without the improper evidence which
was received, the respondent’s case was deficient. Each case must

be determined by its own circumstances. (Snyder v. Sherman, 88
N. Y. 656.

 

Insufficiency of objections to evidence.—As a general rule,
to entitle a party to a review of the ruling of the trial court upon
the question of admitting or rejecting evidence, there must have
been a proper objection taken to the evidence, when offered, and an
exception to the ruling made thereon. (See Trial Practice, p. 200.)

It is well settled law that the decision of a trial judge overruling
a mere general objection to evidence, will be sustained on appeal
unless it clearly appears that there is some ground of objection
which could not have been obviated if if had been specified, or
unless the evidence called for was in any aspect of the case incom-
petent. (Quinby v. Strauss, 90 N. Y. 664; Levin v. Russell, 42
N. Y. 251; Tooley v. Bacon, 70 N. Y. 84; Walliams v. Sargeant,
46 N. Y. 481; Daly v. Byrne, 77 N. Y. 182; Stevens v. Brennan,
79 N. Y. 254.) And it is equally well settled law that if the objec-
180 New Trrats AND APPEALS.

 

Review of effect of evidence.

 

tion could not have been obviated if the grounds had been specific-
ially stated, a general objection is sufficient. (Merritt v. Seaman, 6
N.Y. 168 ; McCombie v. Spader, 1 Hun, 183; Sinclair v. Weill, Id.
80, 83; Mulgqueen v. Duffy, 6 Hun, 299 ; People v. McGuire, 2 Hun,
269, 278.)

A decision of the trial court excluding evidence under a mere
general objection will be sustained upon appeal if any ground in fact
existed for the exclusion. (Tooley v. Bacon, 70 N.Y. 34, 87.) It will
be assumed, in the absence of any request by the opposing party or
the court to make the objection definite, that it was understood, and
that the ruling was placed upon theright ground. (Id.) But where
a specific objection has been taken on the trial, and evidence
received or rejected thereunder, the appellate court will only con:
sider whether or not the ruling was erroneous in the particulars speci-
fied in the objection, and the appellant will not be permitted to urge
anew ground of objection upon the appeal, unless it be one that
could not in any manner have been obviated on the trial. ( Ward v.
Kilpatrick, 85 N.Y. 413; Mead v: Shea, 92 N. Y. 122; Briggs v.
Wheeler, 16 Hun, 583; Atkins v. Elwell, 45 N. Y. 753; Marston
v. Gould, 69 N. Y. 220; Cary v. White, 59 N. Y. 336.)

SECTION III.

Review or DrererMINATIONs AS TO THE WEIGHT oR Errect or Evt-
DENOE.

Where a review of the facts by an appellate tribunal 1s proper,
it is as a general rule its duty to pass upon the facts from the evi-
dence. The rule that where there is conflicting evidence, or any
evidence to sustain the finding, that it is error to reverse, has no
application in such a case. While proper allowance should be made
in reviewing the facts for the judgment of the trial court who
saw and heard the witnesses testify while upon the stand, this is not
absolutely controlling, and upon appeal to the General Term the
court must assume the responsibility of examining the whole case
and determining from the evidence where the truth lies. (Godfrey
v. Moser, 66 N. Y. 250; Moran v. McLarty, 75 N.Y. 25.) When
the Court of Appeals is authorized to review the facts, it must also
examine the case and determine the facts fromthe evidence. (G@od-
Princietes Governing THE Decision or APPEALS. 181

 

Error in charging or refusing to charge the jury.

 

frey v Moser, 66 N. Y. 250; Sherwood v. Hauser, 94 N. Y. 626;
Shultz v. Hoagland, 85 N. Y. 464; Smith v. Hina Life Ins. Co.,
49 N. Y. 211.)

But while an appellate tribunal is under no obligation to adopt
arbitrarily the conclusions of the trial court, great consideration will
be accorded to its opinions, especially where there is evidence on
both sides, and the case is balanced, and the mind of the court has
been called upon to weigh conflicting statements and inferences, and
to decide upon the credibility of opposing witnesses. (Jeoosa v. Smith,
17 Iun, 1388; Baird v. Mayor, ete., of New York, 96 N. Y. 567;
Sherwood v. Hauser, 94 N. Y. 626.)

In reviewing the determination of atrial court upon questions of
fact, an appellate court is not warranted in reversing upon the sole
ground that, in itsopinion, the trial court should have reached a dif-
ferent conclusion upon conflicting evidence. To justify areversal it
must appear that the findings of the trial court were against the weight
of evidence, or that the proofs so clearly preponderated in favor of
a contrary result that it can be said with a reasonable degree of cer-
tainty that the trial court erred in its conclusions. (Baird v. Mayor,
etc., of New York, 96 N. Y. 567; Crane v. Baudouine, 55 N.Y.
256; Westerlo v. De Witt, 836 N. Y. 340; Sherwood v. Hauser, 94
N. Y. 626.) When this appears, it is the duty of the appellate court
to reverse. (Smith v. Hina Life Ins. Co., 49 N. Y. 211.)

SECTION IV.
Error in Cyaraine or Rerusine To Coarce THE Jury.

It is the legal right of counsel engaged in the trial of a cause to
submit to the court propositions of law bearing upon the evidence;
and it is the duty of the court to instruct the jury upon each propo-
sition. A refusal of the court to allow counsel to be heard in respect
to a request to charge, is a fatal error for which the judgment will
be reversed upon appeal, if a proper exception is taken, unless it
appears that there was no question in the case to be submitted to the
jury, or that the request came too late. (Chapman v. McCormick,
86 N.Y. 479; Pfeffele v. Second Ave. R. R. Co., 34 un, 497.)
‘The rule is the same, whether the request to charge is presented
before or after the charge is delivered ; and though counsel have
presented requests to charge before the charge is delivered, a refusal
182 New Trrats anp AppEALs.,

 

Error in charging or refusing to charge the jury,

 

to hear a subsequent request, if made before the jury have retired,
is error calling for reversal. (Id.)

A refusal of the court to instruct the jury upon a proposition of
law bearing upon the evidence and directly involved in the contro-
versy (See Priebe v. Kellogg Bridge Co., 77 N.Y. 597; Menard v.
Stevens, 12 Jones & Sp. 215; Jones v. Brooklyn Life Ins. Co., 61 N.
Y. 79; Moody v. Osquod, 54 N. ¥. 488; Clark v. Vorce, 19 Wend.
232 ; Mairs v. Manhattan Real Estate Ass’n., 15 Jones & Sp. 31),
and which has not already been charged in substance (see Allen v.
Stout, 51 N. Y. 668; Hissenger v. WV. Y.& H. R. &. Co., 56 N.Y.
538; Raymond v. Richmond, 88 N.Y. 671; Conley v. Meeker, 85 N.
Y.618; Morehouse v. Yeager, 71N. Y. 594; Fay v. O'Neil, 36 N.
Y. 11; Bennett v. Matthews, 64 Barb. 410); is an error calling for
reversal, ifa request for such instruction was duly made, and a pro-
per exception taken to the refusal. (Owen v. Hudson River R.
Lf. Co. 85 N.Y¥.516; Hecles v. Darragh, 14 Jones & Sp. 186;
Duffany v. Ferguson, 66 N. Y. 482.) But error must be shown
affirmatively, and cannot be predicated except upon a refusal to
charge some specific proposition. (Distin v. Rose, 69N. Y. 122.)
And although the refusal was of this character, an appellate court
will not for that reason reverse the judgment, if it is clear from the
language used in denying the request, that the refusal arose from a
misapprehension of the meaning of the counsel which the latter
made no effort to remove. In such case the party is concluded by
the acquiescence of his counsel in the interpretation put by the court
upon the request. (Booth v. Boston & Albany R. LR. Co., 73 N.
Y. 38.)

Where the charge to the jury was erroneous, and it is possible
that the appellant was injured by the error, the verdict must be set
aside. (Green v. White, 37 N. Y. 405.) It is for the respondent to
show that the appellant was not prejudiced by the error. (Id.)
To obviate an erroneous instruction upon a material point, it must
be withdrawn in such explicit terms as to preclude the inference that
the jury might have been influenced by it. (Chapman v. Erie Rail-
way 0o.,55 N. Y. 519; Leonard v. Collins, 70 N. Y. 90, 94; Can-
fied v. Baltimore & Ohio R. R. Co., 14 Jones & Sp. 238.) But an
appellate court will not seize hold of isolated portions of acharge for
the purpose of criticism; and if the charge as a whole conveyed to
the jury the correct rule of Jaw ona given question, the judgment
will not be reversed although detached sentences may be erroneous ;
Error in Cuareine or Rervstne To CHARGE THE JuRY. 183

 

Tnsnfficient requests—Insufficient exceptions to the charge or refusal to charge.

 

and if the language employed is capable of different constructions,
that construction will be adopted which will lead to an affirmance
of the judgment, unless it fairly appears that the jury were, or at
least, might have been misled. (Caldwell v. New Jersey Steamboat
Co., AT N. Y. 282; Loseev. Buchanan, 51 N. Y. 476, 492. And
see Crist v. Erie Railway Co., 58 N. Y. 638.) In considering
whether a single proposition contained in a charge is erroneous, it
will be construed in connection with the context, and the whole
charge, or so much of it as is connected with and tendsto modify or
explain the part claimed to be objectionable, will be considered.
And although a part of the charge excepted to, when isolated from
the context, is erroneous, yet the judgment will not be reversed and
a new trial granted for that cause, if it appears that the jury could
not have been misled thereby. (Sperry v. Miller, 16 N. Y. 407,
413.)

Insufficient requests.—lf a request to charge is so framed
that the trial court could not properly charge in the terms of the
request without qualification, an appellate court in reviewing a
refusal so to charge will not inquire whether there were not some
portions of the proposition embraced in the request which ought to
have been charged, if standing alone, or if connected with the omitted
qualifying matter. (See Carpenter v. Stilwell, 11 N. Y. 61, 79;
Keller v. New York Cent. R. R. Co., 24 How. 172, 183; Wright v.
Paige, 36 Barb. 438, 443; Hamilton v. Eno, 81 N. Y. 116, 127;
Doughty v. Hope, 3 Denio, 594.) The request must stand or fall
as an entirety, and if any part of it was improper there is no error
in rejecting it. (Id.)

If the request to charge is not so framed as to draw the attention
of the court to the precise point intended, an exception to a refusal
to charge the request will be unavailing on appeal. (Schile v.
Brokhaus, 80 N. Y. 614.)

Insufficient exceptions to the charge or refusal to charge.
The charge to the jury may be erroneous, and may be excepted to,
and yet the exceptions may he so taken as to present no question for
review.

If the charge of the court contains several propositions, and as
to some of them is unobjectionable, a single exception to the whole
charge, and to each and every part of it, will present no question
184 , ' New Trrats anp APPEALS.

 

Insufficient exceptions to the charge or refusal to charge.

 

for review upon appeal. (Stone v. Western Transp. Co., 88 N. Y.
240; Jones v. Osgood, 6 N. Y. 233; Caldwell v. Murphy, 11 N. Y.
416; Walsh v. Kelly, 40 N. Y. 556; Groat v. Gile, 51 N. Y. 431,
442; Chipman v. Palmer, 9 Hun, 517; Hunt v. Maybee, 7N. Y.
266; Haggart v. Morgan, 5 N. Y. 122.) So if a charge upon a cer-
tain subject contains two or more propositions, and as to one of
them the charge is correct, a general exception to the portion of the
charge relating to that subject will bring up no question for review.
{Chipman v. Palmer, 9 Hun, 517; Groat v. Gile, 51 N. Y. 481,
442 ; Oldfield v. New York & Harlem R. R. Co., 14 N. Y. 310,
815.) And an exception to a specific proposition, or to a particular
remark made by a judge in his charge to a jury, will not be avail-
able to the appellant unless it is so taken as to clearly and unmis-
fakably point out the proposition or remark to which it is intended
to apply, and leave no donbtas to the real character of the excep-
tion. (McGinley v. United States Life Ins. Oo., 77 N. Y. 495;
Faylor v. Ketchum, 5 Rob. 507, 520; 85 How. 289; Jones v.
Osgood, 6 N. Y. 233, 235. See People v. Livingston, 79 N. Y.
279; 292.)
~The same general rules apply to requests to charge. If the
counsel for a party presents to the court a series of propositions,
with a request to charge them, and some of them are substantially
charged as requested, a general exception to the refusal of the court
to charge each of the requests submitted, except so far as embraced
in theicharge delivered, will present no question for review. (Ayr-
ault v.'\Pacific Bank, 47N. Y.570; Requa v. City of Rochester, 45
N.Y. 129, 187; Hoyt v. Long Island R. R. Co., 57 N. Y. 678;
Walsh v. Kelly, 40 N. Y. 556; Taylor v. Ketchum, 5 Rob. 507,
520; 35: How. 289; Smedis v. Brooklyn & Rockaway Beach R.
£. Co., 88 N. Y. 18.) The exception must be specified to be avail-
able, and. point out the particular request to which it is intended to
apply. (Id.) So if aseries of propositions are presented in a single
request, and a general exception is taken to the refusal of the court
to charge as requested, it will be ifnavailable upon appeal if any one
of the propositions is unsound in point of law. (Magee v. Badger,
30 Barb. 246; 34 N. Y. 247; Sun Association v. Tribune Associa-
tion, 12 Jones & Sp. 136.)
Error In TAKING Cask FROM THE JouRY. 185

 

Error in taking case from the jury.

 

SECTION V.

Error in Taxmna og Rerusineg to Tare THE CASE FROM THE
JURY.

It is well settled that where the defendant moves for a nonsuit
or rests his defense upon questions of law, and does not request
to go to the jury, and his motion is denied or the law held adversely
to him, he is estopped from raising the point upon appeal that there
were questions of fact which should have been passed upon by the
jury. (Dillon v. Cockcroft, 90 N. Y. 649; Ornes v. Dauchy, 82
N. Y. 443. See O’ Well v. James, 43 N. Y. 84; Trustees of Hast
Lampton v. Kirk, 68 N.Y. 459, 464; Wénehell v. Hicks, 18 N.Y.
558.) And where the defendant moves for a nonsuit and the plaint-
iff requests the court to direct a verdict in his favor, and neither
party requests that any fact be submitted to the jury, this is virtu-
ally an agreement of the parties to submit the questions of fact to
the judge, and if there is any evidence to uphold his decision it will
be sustained. (Dellon v. Cockcroft, 90 N. Y. 649; Collins v.
Burns, 63 N. Y.1. See Burns v. Perine,12 N. Y. 18.)

But where the appellant has not by his own action, directly or
indirectly assumed that there were no disputed questions of fact for
the jury by treating the questions as purely legal and acquiescing in
the disposal of them by the court, this rule does not apply. Where
a party is nonsuited upon the motion of his adversary, over his
objection and exception, he may insist, upon a review of the decis-
ion, not only that the trial judge erred in the application of the law
to the facts as viewed by him, but that he erred in his conclusions of
fact, or that there were disputed questions of fact which should
have been submitted to the jury ; and if the appellate court deter-
mine that the appellant is right in this contention, it will reverse
the judgment and order a new trial although the appellant did not
request that the whole case, or any specific question of fact therein
he submitted to the jury. (Clemence v. City of Auburn, 66 N. Y.
334; Stone v. Flower, 47 N. Y. 566; Hrecking v. Rolland, 53 N.
Y. 422; Train v. Holland Purchase Co., 62 N. Y. 598; Zrustees
of East Hampton v. Kirk, 68 N. Y. 459.) The same disposition
186 New Triarts anp Apprats.

 

Error in taking case from the jury.

will be made of the case where the court has taken a question of
fact from the jury by directing a verdict for the plaintiff over the
objection and exception of the defendant, if he has not directly or
indirectly invited a decision by the court of the question of fact
by any act or motion on his part. (Lirst Wat. Bank v. Dana, 79
N.Y. 108; Low v. Hall, 47 N. Y.104; Wombough v. Cooper, 2
Hun, 428; Downs v. Jalowack, 66 Barb. 458.

In reviewing the decision of the court directing a verdict, where
no request to submit the facts to the jury is requisite, the appellate
court will consider and determine whether, on any construction of
the facts, the jury would have been warranted in finding for the de-
feated party, and if this be determined in the affirmative, will reverse
(Minor v. Mayor, ete., of New York, 5 Jones & Sp. 171; Stone v.
Flower, 47 N. Y. 566; Loyce v. Watrous, 7 Daly, 87); while on a
review of the decision of the court directing a verdict in a case
where a request to go to the jury is essential, and was not made, the
appellate court will consider and determine whether upon any state
of facts warranted by the testimony, the decision of the court can be
maintained, and if this is determined in the affirmative, will
aflirm the judgment, and if in the negative, will reverse. (See
Hagaman v. Burr, 9 Jones & Sp. 423; Dillon v. Cockcroft, 90
N. Y. 649. And see Trial Practice, pp. 216-231.) Where both
parties have requested the direction or a verdict, there isno question
of fact to be reviewed by the appellate court. (Goodwin v. Bunzi,
6 Civ. Pro. R. 226.)

Where a party has moved fora nonsuit or for a verdict in his
favor, and on denial of the motion has requested the court to submit
the facts of the case to the jury, he stands in the same position, so
far as a review of the denial of the latter request is concerned, as he
would if no motion for a nonsuit or verdict in his favor had been
made. (Koehler v. Adler, 78 N. Y. 287.)

A refusal to nonsuit, in a case where a nonsuit is proper, is an
error calling for a reversal (Lomer v. Meeker, 25 N. Y. 361; Car-
penter v. Smith, 10 Barb. 663; Wendell v. New York Cent. & H.
RL. R. R. Oo. 91 N. Y. 420, 429; Foot v. Sabin, 19 Johns. 154), if
the specific grounds of the motion are stated to the trial court (see
Adams v. Greenwich Ins. Co., 70 N. Y. 166; Reeder v. Sayre, Id.
180, 190; Shotwell v. Mali, 38 Barb. 445; Castle v. Duryea, 32
Barb. 480; Thayer v. Marsh, 75 N. Y. 340; Binese v. Wood, 87 N.
Y. 526), or the objections are of such a nature that they could not
Error IN TAKING CASE FROM THE JURY. 187

 

Error in taking case from the jury.

 

have been obviated if specifically stated. (Ansonia Brass & Cop-
per Co. v. Pratt, 10 Hun, 443.) But if the motion is general, and
the objection taken upon appeal is one which could have been
met at the trial by an amendment of the pleadings, or further proof
to be allowed in the discretion of the court, it will not prevail ina
court of review, for the reason that it will be there presumed that if
the objection had been specially taken it would have been obviated.
(Reeder v. Sayre, 70 N. Y. 180, 190; Trial Practice, p. 226; and
cases above cited.) Soif the motion is made at the close of the
plaintifi’s case, and is denied for the purpose of allowing the plaint-
iff to give further evidence, the denial is not error (/Zunt v. Maybee,
7 N.Y. 266, 278), or if the motion is improperly denied at the close
of the plaintiff’s case, and the defect in proot is supplied by either
party during the trial, the error is not one calling for a reversal.
(Painton v. Northern Cent. R. RB. Co., 83 N. Y. 7; Bartholomew
v. Lyon, 67 Barb, 86 ; Schenectady & Saratoga Plank Road Co.,
v. Thatcher, 11 N. Y. 102, 112; MecCotter v. Hooker, 8 N. Y. 497,
503; Barrick v. Austin, 21 Barb. 241, 243. See Trial Practice, p.
994.)

Where the judge in his charge has taken from the jury the ques-
tion as to the credibility of a witness by an unqualified instruction
that an attempted impeachment had entirely failed, and had not
affected the credit of the witness, the error is one calling fora rever-
sal of the judgment if properly excepted to, although the defeated
party did not request that the question of credibility be submitted to
the jury. Insuch case, the appellate court will not speculate whether
the error had any effect upon the result or not, but will reverse, if for
no other reason than to avoid a dangerous precedent. (Addis v.
Leonard, 58 N. Y. 288.) But a mere expression of opinion by a
judge as to the honesty or credibility of a witness, or as to the effect
or weight of evidence, isnot a ground for reversal so long as the
question is fairly left for the jury to decide. (See Hoffman v. NV.
Y. Cent. & H. R. R. R. Co., 87 N.Y. 25, 82 ; Sindram v. People, 88
N. Y. 196 ; Massoth v. Delaware & Hudson Canal Co., 64N. Y.
524, 583; Wew York Ins. Co. v. Walden, 12 Johns. 513; Vail v.
Rice, 5 N. Y.155, 159; De Groot v. Van Duzer, 20 Wend. 390,
413.

i is error for a judge to submit a question to the jury where
there is no evidence to support it, and if the consideration of sach
question may have influenced the jury in arriving at their verdict
188 New Trrats anp APprratzs.

 

Objections not taken upon the trial,

 

the judgment thereon will be set-aside on appeal. (Algur v. Gard-
ner, 54 N. Y. 360.) But where the parties have assumed the exist-
ence of a fact on the trial, and upon this assumption the court directs
a verdict for one of them, the other cannot procure a reversal of the
judgment upon appeal for the error to which his own conduct con-
tributed. (Campbell v. Birch, 60 N. Y. 214.)

SECTION VI.
OssEotions Not TAKEN UPON THE TRIAL.

It is a general rule that questions not raised at the trial court,
which might have been there obviated by the action of the court or of
the adverse party, will not be heard on appeal as a ground of error.
(Cohn v. Goldman, 76N. Y. 284; Mead v. Shea, 92 N. Y. 122;
Ansonia Brass & Copper Co. v. Pratt, 10 Hun, 448; Coates v.
First National Bank of Emporia, 91 N. Y. 20, 31; Thayer v.
Marsh, 75 N. Y. 340; Osgood v. Toole, 60 N. Y. 475.

But this does not apply to objections upon grounds which could
not have been obviated in the court of original jurisdiction, if the
objections had been then taken. (Cook v. Whipple, 55 N. Y. 150,
157; Delafield v. State of Illinois, 2 Hill, 159; Ansonia Brass &
Copper Co. v. Pratt, 10 Hun, 448.) But it must appear, to remove
the case from the application of the rule, that if the objection had
been taken below no possible answer could have been made to it.
(Osgood v. Toole, 60 N. Y. 475.) An objection to the jurisdiction
of the court over the subject matter of the action is an example of
an objection which cannot be obviated. (/%ester v. Shepard, 92
N. Y. 251; Cook v. Whipple, 55 N. Y. 150.)
GeEnERAL Powrr or APPELLATE Courts. 189

 

General power of Appellate Courts.

 

ARTICLE XIV.

JUDGMENT OR ORDER ON APPEAL, AND PROCEEDINGS THEREUNDER.

SECTION I.
GeneraL Power or APPELLATE Courts.

The Code of Civil Procedure provides that “upon an appeal
from a judgment or an order, the court or the General Term to
which the appeal is taken, may reverse or affirm, wholly or partly,
or may modify the judgment or order appealed from, and each inter-
locutory judgment or intermediate order which it is authorized to
review, as specified in the notice of appeal, and as to any or all of
the parties, and it may, if necessary or proper, grant a new trial or
hearing. A judgment affirming wholly or partly a judgment from
which an appeal has been taken, shall not, expressly and in terms,
award to the respondent a sum of money, or other relief, which was
awarded to him by the judgment so affirmed.” (Code of Civil Pro.
§ 1317.)

Where the appeal is taken from a decree or order rendered in a
surrogate’s court, “The appellate court may reverse, affirm, or
modify the decree or order appealed from, and each intermediate
order specified in the notice of appeal which it is authorized by law
to review, and as to any or all the parties ; and it may, if necessary
or proper, grant a new trial or hearing.” (Id. § 2587.)

The special provisions of the Code relating to the judgment or
order made upon an appeal to the County Court from a judgment
rendered by a justice of the peace will be considered hereafter.
190 New Trrats anp ApPrAts.

 

Judgment affirmed or modified.

 

SECTION II.

PRooEEDINGS WHERE THE JUDGMENT OR ORDER APPEALED FROM ‘IS
AFFIRMED oR MopiIriep.

Where a judgment from which an appeal has been taken, from
one court to another, is wholly or partly affirmed, or is modified,
upon the appeal, it must be enforced by the court in which it was
rendered, to the extent permitted by the determination of the appel-
late court, as if the appeal therefrom had not been taken. (Code of
Civil Pro. § 1319.)

Where a final order, from which an appeal has been taken from
one court to another as prescribed in title 5 of chapter 12 of the
Code, is wholly or partly affirmed, or is modified upon the appeal, the
appellate court may enforce its order or may direct the proceedings
to be remitted for that purpose to the court below, or to the judge
who made the order appealed from. (Id. § 1320.) The foregoing
provisions of the Code are general.

Where an appeal has been taken to the Common Pleas from the
judgment or order of the General Term of the City Court, the
judgment or order of the appellate court must be remitted to the
court below to be enforced according to law. Upon an appeal from
an order granting a new trial upon a case or exceptions, if the appel-
late court determines that no error was committed in granting the
new trial, it must render judgment absolute upon the right of the
appellant, and thereupon an assessment of damages, or any other
proceeding, requisite to render the judgment effectual, may be had
in the City Court. (Id. § 3194.) If an appeal is taken from the
judgment or order of the Common Pleas to the Court of Appeals, the
judgment or order of the court must be remitted to and enforced
by the City Court. (Id. 3195.)

A decree or order of a surrogate from which an appeal has been
taken may be enforced or restitution may be awarded, as the case
requires, as prescribed in title first of chapter twelfth of the Code,
with respect to an appeal froma judgment. (Id. § 2587.)
Waen tue Courr may pirect Resrirvtion. 191

 

Upon appeals generally.

 

ARTICLE XV.

RESTITUTION.

SECTION I.
Wauen tHe Court may pirect Restitution.

Upon appeals generally.—Where a final judgment or order is
reversed or modified, upon appeal, the appellate court, or the Gen-
eral Term of the same court, as the case may be, may make or com-
pel restitution of property or of aright lost by means of the errone-
ous judgment or order; but not so as to affect the title of a pur-
chaser in good faith and for value. Where property has been sold,
the court may compel the value of the purchase price to be restored,
or deposited to abide the event of the action, as justice requires.
(Code of Civ. Pro. § 1323.) The section cited is applicable where
the appeal is from a decree or an order of a surrogate. (See Id.
§ 2587.) It is also applicable where a new trial is granted (Id.
§ 1005) ; and upon review by certiorari. (Id. § 2142.)

The statute does not make restitution imperative, but leaves the
matter in the discretion of the court. (Coster v. Peters, 7 Rob.
386; 4 Abb. N.S. 53.) When the judgment of reversal is abso-
lute, and no new rights have intervened, restitution, if necessary,
will be directed as a matter of course. (Id.; and see Hstus v.
Baldwin, 9 How. 80; People v. Johnson, 38 N. Y. 68, 66.) But
where the rights of third parties have intervened, and they have
been misled by the appearance of things resulting from the neglect
of the party seeking restitution to. procure a stay, those rights
ought not to be prejudiced by an order for restitution. (Coster v.
Peters, 7 Rob. 386 ; 4 Abb. N.S. 83.)

Where a judgment is reversed and a new trial ordered, restitution
is still in the discretion of the court It is in such cases that the
provision of the statute as toa deposit to abide the event of the
action applies.

Where the results of a trial are reversed, the action stands as if
there had been no determination of the issues (see Wélson v.
Palmer, 11 Hun, 325, 327); and the court may compel restitution,
192 New Triats AnD APPEALS.

 

Upon appeals from Justices’ Courts.

 

although the ultimate rights of the parties remain undetermined»
(People v. Livingston, 80 N. Y. 66; Britton v. Phillips, 24 How.
111; Marshall v. Macy, 9 Week. Dig. 21; Lott v. Sweezey, 29
Barb. 87; see however Estus v. Baldwin, 9 How. 81, 82; Young
v. Brush, 18 Abb. 171.) In acase where an attacliment was issued, if
upon a reversal of the judgment it appears that it has been executed
pending the appeal, the court will order a deposit of the money to
abide the result of the new trial, and subject to the lien of the
attachment. (Britton v. Phillips, 24 How. 111.)

* In an action in the nature of a guo warranto where the person
in possession of the office loses it by a judgment which is reversed
on appeal, the appellate court has power, and it is proper for it to
compel restitution of the rights lost by the erroneous judgment ;
aud this although a new trial has been ordered. (People v. Living-
ston, 80 N. Y. 66.)

In ejectment, where it appears that the plaintiffs right has
expired pending the appeal, the court will merely affirm the judg-
ment, and award no execution for possession. (Olendorf v. Cook, 1
Lans. 37.)

Restitution may be awarded notwithstanding a stipulation
between the defendant and the plaintiffs’ agent, that the money col-
lected upon the judgment shall not be restored in case the judg-
ment is reversed ; and that the plaintiff's agent shall be permitted to
purchase and become the owner of the property sold. Such a stip-
ulation is void. (Holloway v. Stevens, 1 Hun, 308; see 8. C., 48
How. 129.)

The remedy by restitution is cumulative. The party entitled to
restitution may rely upon that remedy or may bring an action to
recover back the money paid pursuant to the judgment or order
reversed. (Lott v. Swezey, 29 Barb. 87; Kidd v. Curry, 29 Hun,
215; Scholey v. Halsey, 72 N. Y. 578.)

Upon appeals from Justices’ Courts.— Where the judgment
of the justice is reversed or modified, the appellate court may make
or compel restitution of property or of a right lost by means of the
erroneous judgment ; but not so as to affect the title of a purchaser
in good faith, and for value, of property sold by virtue of a war-
rant of attachment in the action, or an execution issued upon the
judgment. In that case the appellate court may compel the value, or
the purchase price to be restored, or deposited to abide the event of
Wuaen tHe Court may pirgcot Resrirurion. 193

 

In summury proceedings.

 

the action, as justice requires. (Code of Civil Pro. § 8058.) The
section cited is similar in its provisions to that applicable to appeals
generally, and the rules applicable on such appeals are substantially
applicable where the appeal is from a Justice’s Court. If, upon a
reversal, it appears by a transcript from the justice’s docket that the
judgment has been satisfied, restitution will be ordered. (Zunt v.
Westervelt, 4 E. D. Smith, 225.) If the judgment of reversal is
entered generally without any award of a new trial, restoration may
be made of all the appellant has lost by reason of the erroneous
judgment. (See Estus v. Baldwin, 9 How. 80.) Where the judg-
ment of reversal was not a final determination of the rights of the
parties, restitution was not a matter of right, even when the Code
provision (Code of Pro. § 369) as to restitution was impera-
tive. (Cushing v. Vanderbilt, 7 Daly, 512.) It is in the discretion
of the court whether or not to award restitution when the judg-
ment is not final; and it is in such cases that a deposit in court
may be required. (See Marvin v. Brewster Iron Mining Co., 56
N.Y. 671)

In summary proceedings.—lIf the final order is reversed upon
the appeal the appellate court may award restitution to the party
injured, with costs, and it may make an order or issue any other
mandate necessary to carry its determination into effect. (Code of
Civil Pro. § 263.) It has been held that where the proceedings are
reversed for irregularity restitution will be awarded as of course.
(Matter of Shotwell, 10 Johns. 304; see S.C, 12 Id. 31; People v.
Johnson, 38 N. Y. 63, 66.) That where there is nothing in the pro-
ceedings under review enabling the court to determine the rights of
the parties, and the relator was in peaceable possession and was wrong-
fully evicted so far as appears, it is the duty of the court to award
‘restitution and leave the parties to assert their rights in a legal way.
(People v. Mathews, 38 N. Y. 451, 454.)

But on the other hand it has been held that if the reversal is for
irregularities possession will not be restored, if the right of the
relator is not clear (People v. Lockwood, 3 Hun, 304), or if it
appears that the landlord should again prevail in regularly conducted
proceedings. (People v. Hamilton, 15 Abb. 328.) In such a case
it is said that the person dispossessed should be left to an action for
damages.

The coyrt cannot award restitution in favor of a person not a

13
194 New Triats anp APPEALS.

 

Proceedings to obtain Restitution.

 

party to the proceedings. (People v. McCaffrey, 42 Barb. 530.)
Nor should the court award restitution to a dispossessed tenant if his
term has expired before the judgment of reversal is rendered.
(Chretien v. Doney, 1N. Y.419.) But restitution may be awarded
to a tenant although the lease contains a covenant that upon a failure
to pay rent the estate of the lessee shall cease, etc., if it does not
appear by the record that the rent was demanded and refused.

( Wolcott v. Schenk, 16 How. 449.)

SECTION II.
PROCEEDINGS TO OBTAIN ReEsTITUTION.

The appellate court may, of its own motion, in a proper case,
upon reversing or modifying a judgment, award restitution. (See
Sheridan v. Mann, 5 How. 201.) If made at that time and the
amount collected or paid by reason of the erroneous judgment or
order is then known, the direction will be that that amount be paid
to the successful party. If the amount is not known, the direction
will be general, that the amount paid or collected be returned to the
successful party, and a reference will be ordered to ascertain the
amount. (O'Gara v. Kearney, TT N. Y. 428, 425; 57 How. 439;
Code of Civil Pro. § 1015.) The direction would then become a
part of the judgment entered pursuant to the decision of the appeal.
(Id.)

But in view of the fact that the rights of the parties, and of
intervening purchasers are not usually before the court when the
appeal is decided, restitution is not often awarded at that time, the
successful party being left to bring the facts before the court by a
subsequent application. This application is made to the appellate
court, or the General Term of the same court, as the case may be, :
which decided the appeal, and is a necessary step, when restitution
has not been awarded, as a party has no right to enter a judgment or
order of restitution without leave of the court, even if it be thesame
relief which the court would have allowed him on motion and
notice to his adversary. (Sheridan v. Mann, 5 How. 201, 204; and see
Martin v. Rector, 63 How. 362, 367.) The practice on motions to
an appellate court or General Term will be considered in a subse-
quent part of this volume.

If the appeal was from a Justice’s Court, tle application is also
Procrrpines to osTain Restrrvrion. 195

 

Proceedings to obtain restitution.

 

made to the appellate court. Six days’ notice of the application
must be given, and if the application is granted before judgment the
proper direction may be included therein. (Code of Civil Pro. §
38058.)

The question of restitution usually arises between the parties to
the action, but where a judgment is obtained against sureties in an
undertaking, and their principal pays the same, and subsequently it is
reversed, the plaintiff will be required to pay to the sureties the
amount so paid to him by the principal, as the latter has no remedy
against the plaintiff. In sucha case no demand is necessary on the
part of the sureties before they move for restitution. (Marshall v.
Macy, 10 Abb. N. C. 87.)

In regard to enforcing an award of restitution, the rules are as
follows: If the direction is contained ina judgment it is, of course,
enforceable by execution ; and an order requiring one party to make
restitution of money to another is in effect a judgment for a sum of
money, and is enforceable by execution. An order punishing a
party as for a contempt in not complying with such requirement is
unauthorized. (O'Gara v. Kearney, 177 N. Y.423; 57 How. 439.)
But where the order directs the restoration of a right lust, and can-
not be enforced by execution (Code of Civil Pro. § 1241, subd. 1),
or when it directsthe payment of money into court to abide the
event of the action (Id. subd. 4), a failure to comply with its terms
may be punished as a contempt.
CHAPTER II.

APPEAL TO THE COURT OF APPEALS.

ARTICLE I.

JURISDICTION OF THE COURT OF APPEALS.

SECTION I.
Provistons or tHE Cope or Crvin PRrocepure.

The Code of Civil Procedure provides that ‘An appeal may be
taken to the Court of Appeals in a case where that court has juris-
diction as prescribed in sections 190 and 191 of this act.” (Code of
Civil Pro. § 1324.)

The sections above referred to provide as follows: “The Court
of Appeals has exclusive jurisdiction to review, upon appeal, every
actual determination, nade at a General Term by the Supreme Court,
or by either of the Superior City Courts, in either of the following
cases, and no others:

1. Where a final judgment has been rendered, in an action com-
menced in either of those courts, or brought there from another
court ; and, upon such an appeal, to review an interlocutory judg-
ment or intermediate order, involving the merits, and necessarily
affecting the final judgment.

2. When an order has been madein such an action, affecting a
substantial right, and not resting in discretion, which either 1) in
effect determines the action, and prevents a final judgment, or (2)
discontinnes the action, or (3) grants or refuses a new trial, or (4)
strikes out a pleading or a part of a pleading, or (5) decides an inter-
locutory application, or a question of practice, or (6) determines a
statutory provision of the State to be unconstitutional, and the
determination appears from the reasons given for the decision, or is
necessarily implied in the decision.

3. When a final order, affecting a substantial right, has been
[196]
Provistons or tHE Copr or Crvit .PRocEpuRE. 197

 

Provisions of the Code of Civil Procedure,

 

made in a special proceeding, or upon a summary application in an
action after judgment; and upon such an appeal to review any
intermediate order involving the merits, and necessarily affecting
the order appealed from.

4, When an interlocutory judgment has been entered on the
decision of a demurrer, provided that the appeal shall be taken
within sixty days after the service on the attorney for the appel-
lant, of a copy of the judgment and notice of the entry thereof, and
provided also that, excepting in the case of appeals now pending, the
General Term shall certify that in its opinion the question arising
therein is of sufficient importance to render a decision by the Court
of Appeals desirable before proceeding farther.” (Id. § 190.)

“ But the jurisdiction, conferred by the last section is subject to
the following limitations, exceptions and conditions.

1. An appeal cannot be taken from an order granting a new
trial on a case or exceptions, unless the notice of appeal contains an
assent, on the part of the appellant, that if the order is affirmed,

, Judgment absolute shall be rendered against the appellant.

2. An appeal cannot be taken, in an action commenced in a
court of a justice of the peace, or in the Marine Court of the City
of New York, or ina District Court of that city, or in the City Court
of Yonkers, or in a Justice’s Court of a city, unless the court below
allows the appeal, by an order made at the General Term which
rendered the determination, or at the next General Term after
judgment is entered thereupon. Anaction discontinued because the
answer set forth matter showing that the title to real property came
in question, and afterward prosecuted in another court, is not
deemed to have been commenced in the court wherein the answer
was interposed, within the meaning of this subdivision.

3. An appeal cannot be taken from a judgment or from an
order granting or refusing a new trial, except in an action or special
proceeding affecting the title to real property, or an interest therein,
if the matter in controversy, excluding costs, is less than five hun-
dred dollars; unless the court below, by an order made at the
General Term which rendered the determination, or at the next
General Term after judgment is entered thereupon, allows the
appeal, on the ground that a question of ‘aw is involved, which
ought to be reviewed by the Court of Appeals.

Ifan appeal is taken, by the plaintiff, from a judgment rendered
in an action not founded upon a contract, the sum for which the
198 New Triars anp ApPEAtLs.

 

Review of actual determinations of the General Term.

 

complaint demands judgment, or, if the action is to recover one or
more chattels, the value of the chattels, as stated in the complaint,
is deemed to be the amount of the matter in controversy, within
the last subdivision, unless the defendant has interposed a counter-
claim, in which ease the counterclaim must be included in deter-
mining the amount in controversy.” (Id. § 191.)

The Code authorizes an appeal from a final order made in sum-
mary proccedings to recover real property, but provides that “an
appeal cannot be taken to the Court of Appeals from a final determi-
nation of the General Term of the Supreme Court or of a Superior
City Court, npon such an appeal, unless the latter court, by an order,
made at the General Term where the final order is made, or the next
General Term thereafter, allows it to be taken.” (Id. § 2261.)

SECTION II.
Natore or THE Jurispiction CoNFERRED BY THE Cops.

Review of actual determinations of the General Term.—
The Court of Appeals is strictly an appellate tribunal. The Code of
Civil Procedure authorizes an appeal to that court in a case where it
has jurisdiction as prescribed in sections 190 and 191 of that act,
and the sections thus referred to limit that jurisdiction to the review
of actual determinations made at a General Term of the Supreme
Court or of a Superior City Court in certain specified cases. (Ante,
pp- 196, 197.) The right to a review in the Court of Appeals in
civil cases is not a natural and inherent right, but is governed by
statute ; and unless the statute gives the right it does not exist, and
the court has no jurisdiction to entertain the appeal. (People v.
Fowler, 55 N. Y. 675; Batterman v. Finn, 40 N. Y. 340; Roe v.
Boyle, 81 N. Y. 805, 307.)

The limitation contained in section 190 of the Code is preserved
in all subsequent sections relating to a review in the Court of
Appeals. Section 1236 of that act provides that “where final judg-
ment is rendered in the court below after the affirmance, upon an
appeal to the General Term of that court, of an interlocutory judg-
ment; or after the refusal by the General Term of anew trial, either
upon application made, in the first instance, at the General Term, or
upon a appeal from an order of the Special Term, or of the judge
before whom the issue or questions of fact were tried by a jury ; the
NatuRE OF THE JURISDICTION CoNFERRED BY THE Copzr. 199

 

Review of actual determinations of the General Term,

 

party aggrieved may appeal directly from the final judgment to the
Court of Appeals, notwithstanding that it was rendered at a Special
Term, or at a Trial Term, or pursuant to the directions contained ina
referee’s report. Dut such an appeal brings up for review only the
determination of the General Term affirming the interlocutory judg-
ment or refusing the new trial.” This section obviates the necessity
of a mere formal appeal to the General Term after an actual deter-
mination by it of all the questions capable of being litigated, and at
the same time limits the review by the Court of Appeals to the
questions so determined. (See Cook v. New York Floating Dry
Dock Co., 18 N. Y. 229; Caughey v. Smith, 47 N. Y. 244;
Eaton v. Erie Railway Co., 51 N. Y. 544, 546.)

So where an appeal is taken to the Court of Appeals from a final
judgment, or from an order granting or refusing a new trial in an
action, or from a final order affecting a substantial right, made
either in a special proceeding or upon a summary application after
judgment in au action, the questions brought up for review are such
only as were determined by. the General Term of the court below in
rendering the judgment or making the order from which the appeal
is taken. (See Code of Civil Pro. § 13837.)

The language of the Code limiting the jurisdiction of the Court
of Appeals to the “review” of an “actual determination ” made at
a general term of the courts specified, necessarily excludes from the
consideration of the appellate court any matter or subject that has
not been presented for adjudication to the subordinate court. A
“review ” of a question contemplates and involves a previous con-
sideration and examination ; and its “actual determination ” implies
not only that it has been considered and examined, but that it has
in fact been decided aud determined. (Delaney v. Brett, 51 N. Y.
78; LHackett v. Belden, 47 N. Y. 624, 631; Welkins v. Earle, 46
N. Y. 358; Lake v. Gibson, 2 N. Y. 188; Matter of Atty-Gen. v.
Continental Life Ins. Co., 68 N. Y. 343; Vose v. Cockeroft, 44
N. Y. 415, 424.) The very theory and constitution of a court of
strictly appellate jurisdiction is that it will correct errors committed
by a court below ; and a court below cannot be said to have com-
mitted an error, where its judgment has not been called into exer-
cise. For the appellate court to cunsider and determine on appeal a
question not raised in the court below is, in effect, to assume origi-
nal jurisdiction. (See Gelsion v. Hoyt, 13 Johns. 561,577; Adams
290 New Trrats anp APPEALS.

 

Review of actual determinations of the General Term.

 

v. Oaks, 20 Johns. 282; Colden v. Knickerbocker, 2 Cow. 31.) It is
enough to give the court jurisdiction that the record shows an
actual determination by the Supreme Court or a Superior City Court
in the cases authorized, although it does not affirmatively appear by
the record that the case was regularly at the General Term on an
appeal from a judgment of the Special Term. The court will not go
behind the record to inquire whether there was a judgment at the
Special Term from which an appeal had been taken, but will pre-
sume that the case was regularly at the General Term by appeal.
(Beecher v. Conradt, 11 How. 181.)

The clanse in the statute limiting the jurisdiction conferred to a
review of actual determinations only has all the force of an impera-
tive prvhibition and leaves to the court no discretion to exercise in
the matter. If it appears from the record or upon the argument
that there is no actual determination of a General Term to review,
the court will dismiss the appeal, even though the objection is not
raised by counsel or is expressly waived by stipulation. (See Gridley
v. Daggett, 6 How. 280.) Consent cannot give jurisdiction to an
appellate court. (McMahon v. Rauhr, 47 N. ¥. 67, 72; Henry
v. Cuyler, 17 Johns. 469: and see ante, 198.) Thus where it
appeared upon the argument of an appeal from a judgment tbat the
cause was submitted to the General Term of the Supreme Court by
stipulation ; that in consequence of the disqualification of two of
the justices the court below did not examine the case, but at the
suggestion of counsel and under stipulation, judgment was entered
pro forma for the purpose of bringing an appeal to the Court of
Appeals, the latter court dismissed the appeal upon the ground that
there was no actual determination by the court below, notwithstand-
ing the willingness of the parties to argue the cause upon the
merits. (Gridley v. Daggett, 6 How. 280.)

A judgment entered upon and in pursuance of a remittitur of the
Court of Appeals is not an actual determination of the court below,
as the remittitur is controlling upon both the General and Special
Term of the latter court, and leaves nothing to be determined by
either. (Wilkins v. Earle, 46 N. Y. 358.) So no appeal can be
taken to the Court of Appeals from a judgment of the City Court
of New York entered upon a remittitur sent down to that court
from the Common Pleas on affirmance of a judgment of the court
below. (Ansonia Brass, ete. Co. v. Conner, 98 N. Y. 574.)
Nature or tHe Jvurispicrion ConrFERRED By THE Copzs. 201

 

Defaults.

 

Defaults.—The limitation of the jurisdiction of the Court of
Appeals to the review of actual determinations of the General Term,
prohibits, as a general rule, the review of judgments or orders
rendered or made upon default. The Code of Civil Procedure does
not give a party the right to appeal where the judgment or order
of which he complains was rendered or made upon his default.
(See Code of Civil Pro. § 1294; Innes v. Purcell, 58 N. Y. 388;
Flake v. Van Wagenen, 54 N. Y. 25; DMaltby v. Greene, 1 Keyes,
548.) A judgment of affirmance by the General Term upon the
failure of the appellant to appear upon the argument cannot be
reviewed in the Court of Appeals. A judgment of affirmance by
default is not an actual determination. (Stevens v. Glover, 83 N. Y.
611; McMahon v. Rawhr, 47 N.Y. 67.) If, however, the General
Term of the court below has assumed jurisdiction to review and
reverse a judgment of affirmance by default rendered by a General
Term of a subordinate court, the Court of Appeals, upon an appeal
from the judgment of reversal, has jurisdiction to reverse the latter
judgment for want of jurisdiction in the court by which it was
rendered. (Id.)

An appearance and argument by both parties at the General Term
of the court below is not absolutely necessary to render its determi-
nation actual within the meaning of the statute. If on a motion
for a new trial made at the General Term no one appears to oppose,
the moving party may obtain the order applied for under Rule 37
unless the court shall otherwise direct. But if the moving party
waives this right, and the court at his request takes the papers in the
case, examines the questions involved, and upon mature deliberation
denies the motion, this is an actual and not a mere formal determina-
tion, and an appeal will lie therefrom to the Court of Appeals.
(Seneca Nation v. Knight, 19 N. Y. 587.)

Where a judgment by default, regular upon its face, has been
taken against a person who was not in fact served with a summons,
he has a legal right to have the judgment vacated; and from an
order of the General Term affirming an order of the Special Term
denying that right an appeal lies to the Court of Appeals. ( White
v. Coulter, 59 N. Y. 629.) But where the answer of a defendant
has been stricken out on motion unopposed, and judgment has been
perfected as upon default for want of an answer, no appeal to the
Court of Appeals will lie from the order of the General Term dis-
202 New Trias ann AppPrEAts.

 

Mode of estimating the amount of the matter in controversy.

 

missing an appeal from the judgment. (Innes v. Pureell, 58 N.Y.
388; Plake v. Van Wagenen, 54 N. Y. 25.)

SECTION III.
Limiration as to THE AMouNT IN CoNTROVERSY.

The Code provides that an appeal cannot be taken from a judg-
ment, or from an order granting or refusing a new trial, except in
an action or special proceeding affecting the title to real property, or
an interest therein, if the matter in controversy, excluding costs, is
less than five hundred dollars, unless the court below, by an order
made at the General Term which rendered the determination, or at
the next General Term after judgment is rendered thereupon, allows
the appeal on the ground that a question of law is involved which
ought to be reviewed by the Court of Appeals. (Code of Civil
Pro. § 191, subd. 3.) This statute is founded upon the general prin-
ciple that litigations in small causes, where the title to real estate is
not involved, should terminate with the appeal to the General Term
unless special reasons exist why they should be further prosecuted.
(See Josuez v. Conner, 75 N. Y. 156.)

Mode of estimating the amount of the matter in contro-
versy.—In connection with subdivision 8 of section 191, above
cited, the Code further provides that “If an appeal is taken by the
plaintiff from a judgment in an action not founded upon a contract,
the sum for which the complaint demands judgment, or if the
action is to recover one or more chattels, the value of the chattcls as
stated in the complaint, is deemed to be the amount of the matter
in controversy within the last subdivision unless the defendant has
interposed a counter-claim, in which case the counter-claim must be
included in determining the amount in controversy.”

It will be noticed that this statute furnishes a rule for estimat-
ing the amount in controversy, only where an appeal is taken by
the plaintiff in an action not founded upon a contract. This statute
furnishes an easy test and the only test of the right of the plaintiff
to prosecute his appeal to the Court of Appeals in the case to which
itis made applicable. But where the appeal is taken by either
party in an action founded on contract, or where the appeal is taken
by the defendant, whether the action is founded on contract or oth-
*

Limrratien as To THE AMOUNT IN CoNTROVERSY. 203

 

Mode of estimating the amount of the matter in controversy.

 

‘erwise, the amount of the matter in controversy must be deter-
mined by the court, when the question arises, according to ordinary
tests and rules of construction, as the statute furnishes no test for
determining the amount in such eases. So where the appeal is taken
by the plaintiff in an action not founded on contract, and the com-
plaint does not demand judgment for any specific sum of money, it
does not follow as a matter of law that the subject matter in contro-
versy is of no amount and that the plaintiff has no right of appeal
to the Court of Appeals, but, on the contrary, the court may deter-
mine the amount in controversy by reference to the general allega-
tions in the complaint, or to the testimony. In such case, the bur-
den is on the respondent, when he seeks to limit the right to appeal
by applying the special prohibitory provision, to show that the case
comes within that provision, and that the amount in controversy is
in fact less than five hundred dollars. (People v. Horton, 64 N. Y.
58.) So where the plaintiff is appellant, and the action is not
founded on a contract, if the parties have by stipulation modified or
reduced the demand contained in the complaint, the statutory test is
not applicable, and the court must determine, from sources other
than the demand for judgment, the amount of the matter in contro-
versy. (King v. Galvin, 62 N. Y. 238.)

It seems that where an appeal is taken by the plaintiff in an
action not founded upon contract, and the complaint demands judg-
ment for a sum of money with interest thereon from a specified date,
the amount claimed in the complaint and due according to the plaint-
iffs claim at the commencement of the action must govern in
determining his right to appeal, and that interest subsequently accru-
ing cannot be taken into account, although the case is onc where
allowance of interest to the time of trial is the ordinary incident of
arecovery. (Josuez v. Conner, 75 N. Y. 156. And see Produce
Bank v. Morton, 67 N. Y. 199; 1 Abb. N. CO. 174; 52 How. 157;
Van Gelder v. Van Gelder, 81 N. Y. 128.)

In actions to which the statutory rule does not apply the court
will look to the whole case and not to pleadings alone to determine
what is the real controversy and what is its amount. (/2oosevelt v.
Linkert, 67 N. Y. 447.) It would seem that where, in an action to
recover damages fora breach of contract, an offer to liquidate the
damages conditionally has been made and accepted as provided in sec-
tion 736 of the Code of Civil Procedure, the amount of the demand
for judgment in the plaintiff’s complaint should not be regarded in
©

204 New Triats anp APPEALS.

 

- Mode of estimating the amount of the matter in controversy.

 

determining the amount in controversy on an appeal to the General
Term from a judgment rendered in the action, as the acceptance of
the offer is practically an abandonment of that demand. But where
it is proper to resort to the pleadings as an aid in determining the
amount of the matter in controversy on appeal, they will be consid-
ered as they appear upon the record, and not as they might have
been amended. (See Wiley v. Brigham, 81 N. Y. 13.) Thus,
if the plaintiff appeals to the Court of Appeals from a judgment
of the General Term affirming a judgment for the defendant in
an action founded upon cvntract, and the amount for which
judgment is demanded in the complaint, together with interest from
the day specified in the demand even down to the time when judg-
ment was rendered by the General Term, is less $500, the appeal
must be dismissed, although the appellant claims that the facts
-proved show him entitled to interest from a date several years earlier
than that specified in the complaint. To authorize a recovery for a
larger sum than that claimed, an amendment of the complaint is
necessary. (Van Gelder v. Van Gelder, 81 N. Y. 128.) The
amount demanded in the complain is made controlling only in
actions not founded on contract for the reason that in actions ex con-
tractu the facts alleged in the complaint may show that the plaintiff
if successful, would not be, in law, entitled to recover as large a sum
as he demands in damages. The distinction is not made upon the
theory that he may, in an action on contract, recover more than he
demands in his complaint. (Id.)

While acounter-claim actually set up in the answer will be con-
sidered in estimating the amount in controversy, no attention can be
paid to a proposed counter-claim sought to be introduced by way of
amendment at the trial, butexcluded. If an error was committed in
refusing to allow the amendment, such error must be reviewed, but
the amount in controversy must be determined by the pleadings as
they actually were. (Wéley v. Brigham, 81 N. Y. 13.)

The words “ matter in controversy,” as used in the statute under
consideration, refers to the matter in controversy at the General Term.
The appeal to the Court of Appeals is from the determination of the
General Term; and what was the amount in controversy there, and
as to which an appeul is sought, is the criterion of the jurisdiction of
the Court of Appeals. (Davidson v. Alfaro, 80 N.Y. 660; Brown
v. Sigourney, 72 N. Y. 122; Pennie v. Continental Life Ins. Co.,
67 N. Y. 2783 Loosevelt v. Linkert, 67 N. Y. 447.) Thus, if a
Lurrarion as tro THE Amount In ContTRovERsY. 205

 

Mode of estimating the amount of the matter in controversy.

judgment in favor of the plaintiff for the sum of $500, is rendered
at the Special Term, and from this judgment the plaintiff appeals to
the General Term, claiming that the judgment should have been for
more, but not for $500 more than the sum recovered, the amount in
controversy at the General Term is less than $500, and the plaintiff
has no appeal to the Court of Appeals from a judgment of affirm-
ance unless leave is granted. (Davidson v. Alfaro, 80 N. Y. 660.)
So if a plaintiff has recovered at the Circuit a judgment for over
$500, exclusive of costs, upon a demand for two items of service, each
amounting to less than $500, and the defendant on appeal therefrom
to the General Term distinctly abandons all contest as to the cor-
rectness of one of such items, he has no right of appeal to the Court
of Appeals from a judgment of affirmance, unless by virtue of special
leave granted, as the amount of the only item in controversy at the
General Term is less than $500. (Brown v. Sigourney, 72 N. Y.
122.)

Where a counter-claim is interposed, the amount of the matter
in controversy at the General Term may exceed $500, although the
claim which each party made against the other in the trial court,
and the judgment rendered therein, was less than that sum. Thus,
the plaintiff in the trial court sought to recover the sum of $400 as
money due; the defendant plead payment and a counter-claim for
$300; the trial court found with him on both pleas, and rendered
judgment against the plaintiff for the amount of the counter-claim ;
on appeal to the General Term this judgment was reversed and a
new trial ordered; and it was held on the appeal to the Court of
Appeals from the judgment of reversul, that the court had jurisdic-
tion, as the controversy at the General Term necessarily involved the
demands of both parties, and that the amount of these two claims
constituted “the matter in controversy ” within the meaning of the
statute. (Crawford v. West Side Bank, 92 N. Y. 631.) But where
the counter-claim is merely presented and put in issue by the plead-
ings, is substantially ignored upon the trial and disregarded upon
appeal to the General Term from the judgment rendered for the
amount of the plaintiff's claim, it constitutes no part of the matter
in controversy, and cannot be considered in determining whether
the amount in controversy will authorize an appeal to the Court of
Appeals. (S¢. Clair v. Day, 89 N. Y. 357.) In such case the matter
in controversy is the plaintiff's claim. On the other hand, where
the amount which the plaintiff must recover but for a counter claim
206 New Triats anp APPEALS,

 

Actions or special proceedings affecting the title to real property.

interposed, is undisputed, and the only contest at the General Term
is whether the counter-claim shall be allowed, the counter-claim is
the matter in controversy, and its amount determines the right of
the plaintiff to review the determination of the General Term by
appeal to the Court of Appeals. (Pennie v. Continental Life Ins.
Co., 67 N. Y. 278.)

Where an action is brought to restrain the defendants from
carrying on a business, the question whether or not they shall be so
restrained is the subject-matter of the controversy; and although
the complaint does not demand judgment for a sum of money, and
the value of the business is not stated in the pleadings, yet if it is
inferable from the allegations therein that the yearly value of the
business is more than $500, and the testimony shows this to be the
fact, an appeal will lie to the Court of Appeals. (People v. Horton,
64 N. Y. 58.)

In an action in the nature of a creditor’s suit the judgment
measures the matter in controversy, and if it is for less than $500,
an appeal does not lie to the Court of Appeals except by the allow-
ance of the Supreme Court. (Payne v. Becker, 87 N.Y. 153.) No
appeal lies to the Court of Appeals to review a judgment entered
upon an order sustaining a demurrer to a complaint in an action
brought to compel trustees to pay to the plaintiff a sum less than
$500, alleged to be in their hands as income of the trust estate.
(Burleigh v. Center, 74 N. Y. 608.) Where the only contest, in an
action to foreclose a mortgage, is whether the plaintiff's mortgage or
a judgment held by a defendant shall have priority in payment, the
amount in controversy is the amount due upon the judgment, as
neither party could gain or lose more than that amount by any judg-
ment which could be given, and if that amount is less than $500,
neither party can appeal to the Court of Appeals from the judgment
of the court below. (Petrie v. Adams, 71 N. Y. 79.)

Actions or special proceedings affecting the title to real
property, or an interest therein, are excepted from the provision
prohibiting an appeal to the Court of Appeals, without special leave,
where the matter in controversy is less than $500, exclusive of costs.
(Code of Civil Pro. § 191, subd. 3.)

To bring an action within the exception, it is not sufficient that
it relates to real property, or in some way affects it. It must of
itself affect the title, or an interest therein. An action for parti-
Limrration as to THE Amount In ConTROVERSY. 207

 

Constitutionality of limitations as to amount.

 

tion, or to recover the possession of real property, or to set aside or
compel a conveyance thereof, comes within the exception. But an
action for an injury to real property (see Wichols v. Voorhis, 4
N. Y. 28), or to foreclose a mechanic’s lien ( Wheeler v. Schofield, 67
N. Y. 311), or a mortgage thereon (Id. 315. See Petrie v. Adams,
71 N. Y. 79), or to vacate and set aside an assessment which is an
apparent lien upon real property (Wichols v. Voorhis, 74 N. Y. 28;
_ Logers v. Village of Sandy Hill, 94 N. Y. 638), does not come within
the exception and cannot be reviewed in the Court of Appeals, if
the matter in controversy is less than $500, unless special leave is
granted.

Upon the same reasoning no appeal lies, as a right, to the Court
of Appeals from a judgment in an action for an assault and battery
where the recovery is less than $500, although the right to use a
private way was claimed and controverted at the trial, and was in
some degree involved in the litigation. (McMillan v. Cronin, 75
N. Y. 474.) So before an action of trespass can be said to affect the
title to real property within the meaning of the statute, the issues,
trial, and judgment must be such as to determine or establish the
title in favor of one party or the other. (Scully v. Sanders, 77 N.
Y. 598.)

Appeals from a final award of the Board of Claims.—No
appeal lies to the Court of Appeals from the final order or final
award of the Board of Claims unless the amount in controversy
exceeds five hundred dollars. (See Laws of 1884, chap. 85; Id.
chap. 329; Laws of 1883, chap. 205, § 10.)

Constitutionality of limitations as to amount.—The appel-
late jurisdiction of the Court of Appeals is subject to the control
and regulation of the legislature (Const. art. 6, § 6), and therefore
a provision in a statute prohibiting an appeal to that court where the
-amount in controversy is less, or does not exceed a specitied sum is a
limitation upon the appellate jurisdiction of the court which the
legislature had the power to impose, and is constitutional. (Butter-

jiedd v. Rudde, 58 N.Y. 489.)

 
208 New Trrats anp AppriAss.

 

Limitation of appeals from Inferior Courts.

 

SECTION IV.

Lonration or APPEALS IN ACTIONS COMMENCED IN CERTAIN
Inreriorn Courts.

An appeal cannot be taken in an action commenced in a court of
a Justice of the Peace, or in the Marine Court of the City of New
York (now the City Court of New York), or in a District Court of
that city, or in the City Court of Yonkers, or in a Justice’s Court
of a city, unless the court below allows the appeal by an order made
at the General Term which rendered’ the determination, or at the
next General Term after judgment is rendered thereupon. An
action discontinued because the answer set forth matter showing
that the title to real property came in question, and afterwards
prosecuted in another court, is not deemed to have been commenced
in the court wherein the answer was interposed, within the meaning
of this subdivision. (Code of Civil Pro. § 191, subd. 2.)

An action commenced in one of the District Courts of the city
of New York and removed to the Common Pleas pursuant to section
3216 of the Code of Civil Procedure (See Laws of 1882, vol. 2,
chap. 410, § 1287), is not appealable to the Court of Appeals unless
special leave is granted by the General Term of the court below.
The removal of such action to the Common Pleas will not give it
the character of an action originally brought in that court. (See
Hemrich v. Kom, 47 N. Y. 658.)

Where the record does not show in what court the action was
commenced, and no leave to take an appeal to the Court of Appeals
has been granted by the General Term of the court below, the fact
that the action was commenced in one of the courts specified in
subdivision 2 of section 191 of the Code may be shown by aftidavit
on a motion to dismiss the appeal. (Pugsley v. Kisselburgh, 10 N.
Y. 420; 7 How. 402.)
JourRispicrion vPoN APPEALS From Finan Jupaments. 209

 

An actual judgment indispensable

 

SECTION V.
JURISDICTION UPON APPEALS FROM FINAL JUDGMENTS.

An actual judgment indispensable.—Subject to the limita-
tions mentioned in the preceding sections, the Court of Appeals
upon an appeal from a final judgment rendered in an action com-
menced in the Supreme Court, or in either of the Superior City
Courts, or in an action brought there from another court, has juris-
diction to review every actual determination made at the Gencral
Term, and to review any interlocutory judgment or intermediate
order involving the merits and necessarily affecting the final judg-
ment. (Code of Civil Pro. § 190, subd. 1.)

This right of review is given only where a final judgment has
been entered. An appeal from an order of the General Term
affirming a judgment is premature and unauthorized. Judgment.
must first be entered, and the appeal must be taken from the judg-
ment. (Adlmer v. Bradley, 80 N. Y.-630.) A memorandum of the
decision of the appeal handed down by the General Term, is not the
judgment, but simply the authority for the eutry of judgment. No
appeal lies until such entry. To perfect the judgment, the memo-
randum of the decision should be filed ; a formal judgment of affirm-
ance should be prepared and entered in the judgment-book ; and
this must then be attested by the signature of the clerk. A copy of
this judgment annexed to the papers upon which the appeal was
heard constitutes the judgment-roll on appeal. (Anapp v. Loche,
82 N. Y. 366; Code of Civil Pro. §§ 1236, 1354.)

So the mere order of the General Term reversing a judgment
absolutely, without granting a new trial, cannot regularly be appealed
from as an order, and is not in itself a complete judgment. The
proper mode of reviewing it is to cause judgment of reversal to be
perfected by a proper entry in the judgment-book, and to appeal
from that judgment. The order will then form a part of the
judgment-roll. (Mehl v. Vonderwulbeke, 46 N. Y. 539; Lvust v.
Hauselt, 69 N. Y. 485.)

If, however, a judgment from which an appeal has been taken
to the General Term has been there reversed, and a new trial
granted, no, Appeal can be taken from the judgment of reversal. The
210 New Trrats anp APPEALS,

 

‘What judgments are final.

 

appeal should be taken from the order granting a new trial, and
upon this appeal the judgment of reversal must also be reviewed
(Code of Civil Pro. § 1318.) A judgment of reversal, when a new
trial is granted, is not a final judgment within the meaning of sub-
division 1 of section 190 of the Code of Civil Procedure.

An appeal to the Court of Appeals from a final judgment brings
up for review in that court every question affecting a substantial right,
and not resting in discretion, which was determined by the General
Term of the court below in rendering the judgment from which the
appeal is taken, unless it be a question of fact arising upon conflict-
ing evidence ; and in certain cases the appellate court not only may,
but must review the determination of the General Term of the court
below upon a question of fact as will be hereafter noticed. (See
Code of Civil Pro. §§ 1337, 1338.)

What judgments are final.—_A judgment is either interlocu-
tory or the final determination of the rights of the parties in the
action. (Code of Civil Pro. § 1200. See Trial Practice, p. 448.)
A final judgment means a judgment which concludes the parties, as
regards the subject-matter in controversy, in the tribunal pronounc-
ing it, whichever way the decision may be given. It is called final
in contradistinction from interlocutory. (Xing v. Platt, 34 How.
26; 2 Abb. Ct. App. 527; 3 Abb. N. 8. 174.) A judgment is not
tinal so long as it leaves undetermined and subject to further litiga-
tion a question which it is one of the objects of the action to deter-
mine. (Zompkinsv. Hyatt, 19 N. Y. 534.) If any questions are
reserved by the judgment requiring further judicial action by the
court the judgment is interlocutory. (See Harrisv. Clark, 4 How.
78; Cruger v. Douglass, Id. 215 ; Johnson v. Everett, 9 Paige, 636 ;
Springsteene v. Gillett, 30 Hun, 260; Jones v. Jones, 81 N. Y. 35;
Raynor v. Raynor, 94 N.Y. 248; Clark v. Brooks, 2 Abb. N. 8.
385; Morris v. Morange, 38 N. Y. 172; Myers v. Becker, 95 N.
Y. 486.) But ifthe judgment reserves no questions, and leaves
nothing for further judicial determination by the court, it may be
tinal althongh some ministerial act may be necessary to carry it into
effect. (Morris v. Morange, 38 N. Y. 172; Syringsteene v. Gillett,
30 Hun, 260; Produce Bank v. Morton, 67 N. Y. 199, 203.) Thus,
the final judgment in favor of the plaintiff in an action to foreclose
a mortgage, besides directing the sale of the mortgaged prem-
ises, may award the payment of any deficiency arising on the sale by
JURISDICTION UPON APPEALS FROM Fina JUDGMENT. O11

 

Intcrlocutory judgments and intermediate orders.

 

a-defendant liable for the payment of the debt secured by the mort-
gage, although at the time of the entry of such judgment it is uncer-
tain whether there will be a deficiency, or if there is, what will be
its amount. (Code of Civil Pro. §§ 1626, 1627.)

A judgment which does not determine to which of the parties
relief shall ultimately be given, but awards certain relief to the plaint-
iff in case he shall perform certain acts in a specified time, and in
case of his default, dismisses the complaint with costs to the defend-
ant, is not a final judgment for either party, and is not appealable.
(Butler v. Lee, 3 Keyes, 70; 33 How. 251.) In a considerable num-
ber of cases, a departure from the established practice by the courts
below, has rendered the determination as to the character of the
judgment rendered therein peculiar to the particular cases decided,
and of little value, if not absolutely misleading, as a test to be
applied to the ‘character of the judgment generally. (See Weaver v.
Barden, 49 N. Y. 286; Catlin v. Grissler, 57 N. Y. 363.)

Interlocutory judgments and intermediate orders.—Upon
an appeal from a final judgment rendered in an action commenced
in the Supreme Court or in either of the Superior City Courts, or
brought there from another court, the Court of Appeals has juris-
diction to review an interlocutory judgment or intermediate order,
involving the merits, and necessarily affecting the final judgment
(Code of Civil Pro. § 190, subd. 1) which the appellant has dis-
tinetly specified in his notice of appeal (Id. § 1301), and which has
not already been reviewed in that court upon a separate appeal. (Id.
§ 1316.) The right to review an interlocutory judgment, or an
intermediate order, on an appeal taken from a final judgment is not
affected by the expiration of the time within which a separate
appeal therefrom might have been taken. (Id.)

An interlocutory judgment, not specified in the notice of
appeal, is not open to review in the appellate court; and, on the
appeal from the final judgment, will be treated, so far as it goes, as
the settled law of the case, and as determining the rights of the
parties. (Reese v. Smyth, 95 N. Y. 645; Mapes v. Coffin, 5 Paige,
296. See Sands v. Codwise, 4 Johns. 536.) The same rule applies
to intermediate orders not specified in the notice of appeal. (Piper
v. Van Buren, 27 Hun, 384. See ante, 63.)

The various modes of procedure to obtain a review of the deter-
212 New Triats anp ApprKaLs.

 

Review of interlocutory judgments,

 

mination of the General Term in respect to interlocutory judg-
ments will be specially considered in the next section.

An “intermediate order” is one made during the progress of
tle action and before the judgment from which an appeal is taken.
If made afterward, it is not intermediate, and therefore not open to
review under the provision of the Oode before mentioned. (Hunt
v. Chapman, 62 N. Y. 333; Hackett v. Belden, 47 N. Y. 624 ; Sel-
den vy. Delaware & Hudson Canal Co., 29 N. Y. 634; Lewis v.
Greider, 51 N. Y. 231.) An order of the Special Term from which
no appeal was taken to the General Term (Zhurber v. Harlem
Bridge, etc., R. R. Co., 60 N. Y. 826; Hunt v. Chapman, 62 N. Y.
333 ; 49 How. 377), or an order of the General Term made subse-
qtent to the argument of the appeal therein, and not specified in
the notice of appeal to the Court of Appeals, will uot be reviewed
in the latter court. (Lewis v. Greider, 51 N. Y. 2381.)

SECTION VI.
Review or Inrertoovrory JupgmMents By THE Court or APPEALS.

Prior to the amendment of section 190 of the Code of Civil
Procedure in 1882 (Laws of 1882, chap. 61), there was no provision
of law authorizing an appeal to the Court of Appeals from an
interlocutory judgment, or from an order affirming such a judg-
ment. (Z?aynor v. Lvaynor, 94 N. Y. 248; Victory v. Blood, 93
N.Y. 650; Walker v. Spencer, 86 N. Y. 162; Chesterman v.
Eyland, 74 N. Y. 452; Barker v. Cocks, 50 N. Y. 689; Scroggs v.
Pulmer, 55 N. Y. 643; dwell v. Johnson, 74 N. Y. 80; Cam-
bridge Valley Nat. Bank v. Lynch, 76 N. Y. 514; Cott v. Stewart,
50 N. Y. 17.) An appeal miglit be taken to the General Term from
such a judgment (Code of Civil Pro. § 1349), but it eould not be
reviewed by appeal to the Court of Appeals until after finul judg-
ment had been rendered. (See cases above cited.) Since the
amendment, however, the Court of Appeals has jurisdiction to
review the determination of tle General Term on an appeal from
an interlocutory judgment entered upon the decision of a demurrer,
provided that the appeal is taken within sixty days after the service
on the attorney for the appellant of a copy of the judgment and
notice of its entry, and provided also the General Term shall certify
that in its opinion the question arising therein is of sufficient
Review or InrerLocurory JUDGMENTS. 213

 

Review of interlocutory judgments.

 

importance to render a decision of the Court of Appeals desirable
before proceeding farther. (Code of Civil Pro. § 190, subd. 4.)
This is the only case in which the Court of Appeals has jurisdiction
to entertain an appeal fromm a judgment which is not final. (Zeay-
nor v. Raynor, 94 N. Y. 248.) In cases not covered by the amend-
ment, the former practice still prevails.

A party aggrieved by an interlocutory judgment may appeal
therefrom to the General Term under section 1349 of the Code, and
if on such appeal the General Term affirm the judgment, and the
case is not one covered by subdivision 4 of section 190, the parties
must then go back to the Special or Trial Term and complete the
further proceedings, and then final judgment may be entered upon
the whole case. From this final judgment the party may either
appeal directly to the Court of Appeals, under scction 1836 of the
Code, and obtain a review only of the determination of the General
Term affirming the interlocutory judgment, or he may appeal to
the General Term, under section 1350 of the Code, which appeal
will bring up for review only the proceedings to take the final judg-
ment; and, in case the General Term affirms the judgment, he may
appeal to the Court of Appeals, and there present for review all the
questions of law involved in the whole case raised by the proper
exceptions.

In case the General Term, upon the appeal from the interloc-
utory judgment, instead of affirming the judgment, grants a new
trial, the appellant has no ground for further prosecuting an appeal,
and the adverse party may then appeal to the Court of Appeals,
under section 190 of the Code.

Another mode of procedure is also open to a party aggrieved by
an interlocutory judgment. After the judgment is entered, he may
move for a new trial at the General Term, under section 1001 of
the Code, upon one or more exceptions contained in a case settled as
provided by section 997, and, if the motion is denied, may appeal to
the Court of Appeals under section 190. If this latter appeal is not
taken, the parties must then go back to the Special or Trial Term and
complete the proceedings there. From the final judgment there
entered, the party aggrieved may appeal directly to the Court of
Appeals, under 1336 of the Code, and obtain a review of the deter-
mination of the General Term refusing the new trial, or he may
appeal under section 1350 of the Code, to the General Term, where
only the proceedings to take the final judgment will be reviewed;
Q14 New Triats anp APPEALS.

 

Jurisdiction on appeal from orders,

 

and in case the General Term atiirms the judgment, he may then
appeal from the determination of the General Term to the Court of °
Appeals, and upon the latter appeal obtain a review of the deter-
mination of the General Term refusing the new trial. (See L2aynor
v. Raynor, 94 N.Y. 248, 250, 251; Walker v. Spencer, 86 N. Y.
162.)

SECTION VII.
Jurtspiction on APPEAL FROM ORDERS.

The Court of Appeals has jurisdiction to review upon appeal
every actual determination made at a General Term by the Supreme
Court or by either of the Superior City Courts, where an order has
been made, in an action commenced in either of those courts, or
brought there from another court, which affects a substantial right
and does not rest in discretion, and which either (1) in effect deter-
nines the action, and prevents a final judgment, or (2) discontinues
the action, or (3) grants or refuses a new trial, or (4) strikes ont a
pleading, or part of a pleading, or (5) determines a statutory provis-
ion of the State to be unconstitutional, and the determination
appears from the reasons given for the decision, or is necessarily
implied in the decision (Code of Civil Pro. § 190, subd. 2.)

It also has jurisdiction to review upon appeal every actual deter-
mination made at a General Term by the Supreme Court, or by
either of the Superior City Courts, where a final order, affecting a
substantial right, has been made in a special proceeding or upon a
summary application in an action after judgment ; and, upon snch an
appeal, to review any intermediate order, involving the merits, and
necessarily affecting the order appealed from. (Id. subd. 3.) But
the Code expressly provides that where the appeal is from a final
order in a special proceeding, and the appellant intends to bring up
for review thereupon an intermediate order, he must, in the notice
of appeal, distinctly specify the intermediate order to be reviewed.
(Id. § 1801.)

The language of subdivisions 2 and 3 of section 190 of the Code
of Civil Procedure docs not differ in meaning from that of subdivi-
sions 2 and 8 of scction 11 of the Code of Procedure ; and decisions
under these subdivisions of the former Code may still be relied upon
xs authority. (See People v. Board of Police Commissioners, 82
N. Y. 506.)
JURISDICTION ON APPEAL FROM ORDERS. 915

 

What orders affect a substantial right.

 

On appeals from orders, as on appeals from judgments, the Court
of Appeals will review only actual determinations of the court below.
(Matter of Attorney-General v. Continental Life Ins. Co., 68 N. Y.
343. See ante, 199.) An appeal from an order doesnot authorize the
review and reversal of any other order, not specified in the notice of
appeal, however closely the two may be united. (See Code of Civil
Pro. § 1301 ; Matter of Commissioners of Central Park, 50 N. Y.
493.) And although the court may have jurisdiction to review a
part of an order appealed from, this does not necessarily confer juris-
diction to review the whole order. (See Matter of the New York,
West Shore & Buffalo Railway Co., 94 N.Y. 287; People v. Gil-
more, 88 N. Y. 626; Crosby v. Stephan, 97 N. Y. 606.) But it
would seem that an appeal to the General Term from one of a series
of orders so connected with the same matter that if one is erroneous all
are, the General Term is authorized to reverse the whole so as to
leave the records of the court clear and consistent. (Stanton v.
King, 76 N. Y. 585; Cochran’s Haecutor v. Ingersoll, 66 N. Y.
652.)

What orders affect a substantial right.—It is essential to the
jurisdiction of the Court of Appeals to review the determination of
the General Term upon a direct appeal from an crder, that the
order sought to be reviewed shall “ affect a substantial right,”
though that alone is not the test of jurisdiction.

The phrase “ substantial right” had no special legal meaning
when first used in the Code to designate the character of the class
of orders from which an appeal could be taken ; and it was therefore
held that the words must be constrned according to their popular
and usual signification. (Security Bank v. Bank of Commonwealth,
2 Ilun, 287; 48 How. 135.) But the construction given to the
phrase when used in the statute relating to appeals from orders to
the General Term of the same court has not always been given to
the same phrase as used in the statute relating to appeals from orders
of the General Term to the Court of Appeals. (Sce ALatter of Duff,
41 How. 350 ; 10 Abb. N.S. 416.) It has been held tiat by the term
‘substantial right,” as used in the provisions of the Code relating
to appeals from orders to the Court of Appeals, is to be understood
such rights only as are to be determined as pure questions of law;
or, in other words, such only as can be demanded as the strict legal
right of the party. (oote v. Lathrop, 41 N. Y. 358, 861; De
216 New Triats anp APPEALS.

 

What orders affeet a substantial right.

Barante v. Deyermand, Id. 355.) Under this construction, it is not
enough that the order affects a right of substantial value to the
party, as the importance of the right affected is not the test ; bat the
right affected by the order must be one absolutely conferred by
law, and not one dependent upon the exercise of discretion or favor
by the court. (Id.; Matter of Duff, 41 How. 350; 10 Abb. N. 8.
416. See also Field v. Stewart, 41 How. 95; Tallman v. Ilinman, 10
How. 89.) On the other hand, it was held that the word “substautial ”’
as used in the statute governing appeals to the General Term, was
intended to distinguish the right there mentioned from one merely
formal (People v. New York Cent. R. R. Co., 29 N. Y. 418), and
that the term substantial right includes all positive, material and
absolute rights as distinguished from those of a merely formal or
unessential nature. (Security Bank v. Bank of Commonwealth, 2
Tlun, 287 ; 48 How. 135.) Under this construction of the term, the
discretionary character of the determination embraced in the order
does not enter into the question whether it affects a substantial
right, the time being drawn between mere matters of form and
matters of substance. (Martin v. Windsor ‘Hotel Co., 70 N. Y.
101.)

It may be doubted whether it is proper in any case to so construe
the term “substantial right” as to limit it to an absolute legal right.
A question may involve a substantial right and yet be discretionary.
(See Anonymous, 59 N. Y. 313; Wallace v. Castle, 68 N. Y. 370,
873; Platt v. Platt, 66 N. Y. 360, 362.) This question of con-
struction is unimportant so far as applied to appeals froin orders
under subdivision 2 of section 190, as the jurisdiction to review
there given is expressly limited to orders not resting in discretion.
But the use of the qualifying words is a recognition that an order
affecting a substantial right may be discretionary. (Martin v.

Windsor Hotel Co., 70 N. Y. 101.)

The power to review a final order affecting a substantial right
given by subdivision 3 of section 190, is not in terms limited to
orders not resting in discretion. The Court of Appeals refrain
from reviewing such orders when discretionary, not from any prohi-
bition implied by the words “ substantial right,” but from the con-
gtitution and functions of the court as an appellate tribunal restricted
to a review of questions of law only. (See Martin v. Windsor
Hotel Co., 70 N. Y. 101, 103; Howell v. Mills, 53 N. Y. 322.) And
it may be stated as a universal rule that an order embodying a deter-
JURISDICTION ON APPEAL FROM ORDERS. 217

 

What orders affect a substantial right.

 

“mination of the court below which is the result of the exercise of
a discretion vested in that court, will not be reviewed in the Court
of Appeals although it affects a substantial right. (Anonymous, 59
N. Y. 813; Howell v. Mills, 53 N.Y. 322; Livermore v. Bain-
bridge, 56 N. Y. 72; 47 How. 354; Mills v. Davis, 53 N. Y. 349;
Buffalo Savings Bank v. Newton, 23 N.Y. 160; Wallace v. Castle,
68 N. Y. 870; Platt v. Platt, 66 N. Y. 360; Meannay v. Blogg, 41
N. Y. 521; Leonard v. Mulry, 93 N. Y. 392; Attorney-General v.
Continental Life Ins. Ov., 93 N. Y. 45; 90 N.Y. 45; Clyde v.
Rogers, 87 N. Y. 625; 94. N. Y. 541; Witkowski v. Paramore, 93
N.Y. 467; Welléams v. Montgomery, 60 N. Y. 648; Smith v.
Platt, 96 N. Y. 635; and see post, p. 221.) But where the court
below, upon the application involving a substantial right resting in
discretion, has by its order, refused to exercise such discretion, bas-
ing the refusal solely upon a want of power, such order is reviewa-
ble in the Court of Appeals although that court would not have had
jurisdiction to review the exercise of such discretion. (Zolman v.
Syracuse, Binghamton, etc, 2. BR. Co., 92 N. Y. 353; Hewlett v.
Wood, 67 N. Y. 894; Tilton v. Beecher, 59 N. Y.176; Brown v.
Brown, 58 N. Y. 609; Tracey v. Altmyer, 46 N. Y. 598; Sixth
Avenue R. R. Co. v. Gilbert Elevated BR. R. Co., 71 N. Y. 480;
Equitable Life Ins. Soc. v. Stevens, 63 N. Y. ce See Matter of
Duff, 41 How. 350.)

It has been held at General Term that an order denying a com-
mission affected a substantial right, because it tended to deprive a
party of testimony necessary to his case, but that an order granting
a commission did not affect a substantial right, because it mercly dic-
tated the mode of taking such testimony. (Wallace v. American
Linen Thread Co., 2 N. Y. Sup. Ct. [T. & C.] 574; 46 How. 4038;
Treadwell v. Pomeroy, Id. 470.) The cxistence of any adequate
foundation for this distinction has been questioned by the Court of
Appeals, and it is there held that an order granting an open com-
mission to examine orally unknown and unnamed witnesses affects a
substantial right. (Jemison v. Citizens’ Savings Bank, 85 N. Y.
546 ; Anonymous, 59 N.Y. 314.)

A decision or order of a judge, upon the settlement of interrog-
atories to be annexed to a commission, excluding a pertinent ques-
tion, affects a substantial right given by statute; but a decision or
order of the judge allowing an improper question to be annexed to
‘the commission does not affect a substantial right, as the party can
218 New Triats anp APpPEALs.

 

What orders affect a substantial right.

 

protect himself by objection at the trial. (Uline v. New York
Cent. & H. R. R. R. Co., 79 N.Y. 175.)

An order adjudginga party in contempt and prescribing punish-
ment. affects a substantial right. (Brinkley v. Brinkley, 47 N. Y.
41; People v. Dwyer, 90 N. Y. 402; Erie Railway Co. v. Ramsey,
45 N. Y. 637; Sudlow v. Know, 7 Abb. N. 8. 411.) But an order
of the General Term reversing an order of the Special Term adjudg-
ing a party guilty of contempt (Batterman v. Finn, 40 N. Y.52;
Bowery Savings Bank v. Richards, 62 N. Y. 631), or an order of
the General Term affirming an order of the Special Term refusing
to punish a party for contempt, where the other party had no legal
right to demand the relief granted by the order alleged to have been
violated (Oarrington v. Florida R. R. Co.,52 N. Y. 583), does not
affect a substantial right. An order that the president of a defend-
ant corporation show cause why he should not be punished as for
contempt for the violation of an order made in the action restraining
the defendant and its officers from doing certain acts, affects no sub-
stantial right of the defendant. (Atlantic & Pacific Tel. Co. v.
Baltimore & Ohio R. R. Co., 87 N. Y. 355.)

An order of the General Term affirming an order of the Special
Term denying a motion to strike out an unverified answer to a veri-
fied complaint (Fredericks v. Taylor, 52 N.Y. 596), or an order deny-
ing a motion to set aside an ex parte order striking out an
answer (Jeéce v. Hhle, 55 N. Y. 518), or an order of the General
Term affirming an order of the Special Term granting an extra
allowance of costs in a case not authorized by statute (Conaughty v.
Saratoga Co. Bank, 92 N. Y. 401; Ogdensburgh, ete. R. Re. Co. v.
Vermon, etc., R. PR. 0o.,63 N.Y.176. See People v. New York Cent.
PR. RP. Co., 29 N. Y. 418), or an order awarding costs in a case not
authorized by any statute (Matter of the New York, West Shore &
Buffalo Railway Co.,94 N.Y. 287. See Bergen v. Carman, 79 N.
Y. 146), or an order denying costs given by a positive provision ofa
statute (Sturgis v. Spofford, 58 N.Y.103. See Biggs v. Waydell, 78 N.
Y. 586 ; McGregor v. Comstock, 19 N. Y.581), or an order setting aside
on the merits a judgment in a litigated action where the trial court
had jurisdiction of the subject-matter and of the parties (Fisher v.
Hepburn, 48 N. Y. 41), or an order vacating a judgment by confes-
sipn for a defect in the statement (Belknap v. Waters, 11 N. Y.
477), or an order denying a motion for leave to issue an execution
under section 1877 of the Code of Civil Procedure, where there is no
JuURIspiction oN APPEAL FROM ORDERS. 219

 

What orders affect a substantial right.

 

claim of payment of the judgment (Betis v. Garr, 26 N. Y. 383), or
an order directing a reference of an action fora tort (Zownsend v.
Hendricks, 40 How. 143), or ofan action on contract where it is clear
that the examination of a long account will not be required (ain
v. Delano, 11 Abb. N. 8. 29; Welsh v. Darragh, 52 N.Y. 590), or
un order referring a non-referable action to a referee not named in
the stipulation of the parties (Preston v. Morrow, 66 N. Y. 452.
See also Parkhurst v. Berdell, 87 N. Y. 145), or an order depriving
a referee, appointed to sell lands in partition, of his legal fees,
(Hobart v. Hobart, 86 N. Y. 636), or an order denying a motion to
set aside a judgment, entered as by default, against a person not
served with a summons (White v. Coulter, 59 N. Y. 629), or an
order denying a motion to set aside the levy of an attachment upon
the shares of a non-resident defendant in a foreign corporation
(Plimpton v. Bigelow, 98 N. Y. 592. See Dunlap v. Patterson
Fire Ins. Co., 74 N. Y. 145), or upon any other property not legally
the subject of attachment (Id.), or an order vacating an attachment
fora failure to serve or publish a summons within the time limited
by section 638 of the Code of Civil Procedure (Blossom v. Estes,
84.N. Y. 614. See Taylor v. Troncoso, 76 N. Y. 599; Mojarrieta
v. Saenz, 80 N. Y. 54), or an order granting or denying a motion to
vacate an attachment, where unauthorized and improper proof was
presented and considered upon the hearing of the motion (Yates
v. Worth, 44 N.Y. 271; Steuben County Bank v. Alberger, 75 N.Y.
179. See Wallace v. Castle, 68 N. Y. 370, 373), or an order of the
General Term reversing an order of the Special Term setting asidea
verdict and granting a new trial on account of an alleged improper
communication between the court and the jury after the latter have
retired (Watertown Bank & Loan Co. v. Mix, 51 N. Y. 558. See
Williams v. Montgomery, 60 N. Y. 648), or an order of the General
Term which, in effect, is a refusal to entertain and pass upon the
merits of an appeal from an order of the Special Term affecting a
substantial right (Zanover Fire Ins. Co. v. Tomlinson, 58 N. Y.
215 ; Jemison v. Citizens’ Savings Bank, 85 N.Y. 546), or an order
denying a motion to restore a party to the possession of lands from
which he has been dispossessed under a writ of assistance which has
been subsequently set aside as improperly granted (Chamberlain v.
Choles, 35 N. Y. 477), is an order affecting a substantial right from
which an appeal will lie to the Court of Appeals.
290 New Trrtats anp APPrAats

 

Orders not affecting a substantial right.

 

Orders not affecting a substantial right.—A substantial
right is not affected by an order denying a motion to compel a party
to make his pleading more definite and certain (field v. Stewart, 41
How. 95), or refusing to strike out irrelevant and redundant matter
(Id.), or denying a motion to compel the plaintiff to separately state
and number the causes of action in his complaint. (Id.; Goldberg v.

Utley, 60 N.Y. 427), or by any order affecting a mere mode of pro-
eedure (Arthur v. Griswold, 60 N. Y. 143; Van Slyke v. Hyatt,
46 N. Y. 259; Whitney v. Townsend, 67 N.Y. 40. See MeCoun v.
New York Cent. & H. Lt. R. &. Co., 50 N. Y. 176), or by an order
directing a reference to take proof of facts upon which further pro-
ceedings may or may not be taken (Chesterman v. Eyland, 74 N.
Y. 452. See Matter of Attorney-General v. Continental Life Ins.
Co., 68 N. Y. 343), or by an order reviving an action against
the representatives of a deceased defendant sued jointly with
others (Arthur v. Griswold, 60 N. Y. 143), or by an order
dissolving a preliminary injunction (People v. Schoonmaker, 50
N. Y. 499; Paul v. Munger, 47 N.Y. 469; Pfohl v. Sampson, 59
N.Y. 174. See Patten v. New York Elevated R. R. Co., 67 N. Y.
484; Brown v. Keeney Settlement Cheese Association, 59 N.Y. 242;
Hasbrouck v. Kingston Board of Health, 3 Keyes, 480), or by an
order of the judge, made on the settlement of interrogatories, allow-
ing an improper question to be attached to a commission to take
testimony (ante, p. 217), or by an order refusing to set aside an exe-
cution, issued without leave after the expiration of five years from
the entry of judgment (Bank of Genesee v. Spencer, 18 NAY. 150;
Underwood v. Green, 56 N. Y. 247; Bennett v. Morehouse, 42
N.Y. 189), or by an order denying a motion to set asidea judgment
regularly entered (Foote v. Lathrop, 41 N. Y. 358; Wade v. De
Leyer, 63 N. Y. 318; Schaettler v. Gardiner, 47 N. Y. 404. See
Whitney v. Townsend, 67 N. Y. 40. But see White v. Coulter, 59
N. Y. 629), or by an order refusing to punish a party for contempt,
unless the moving party had a legal right to demand the relief
granted by the order alleged to have been violated (Carrington v.
Florida R. R. Co., 52 N. Y. 583; Batterman v. Finn, 40 N. Y.
840; Simmonds v. Simmons, '75 N. Y. 612; Bowery Savings Bank
v. Richards, 62 N. Y. 631), or by an order setting aside a writ of
assistance ( Wélbor v. Danolds, 59 N. Y.657. But see Chamberlain
v. Chol, 35 N.Y. 477), or by an order of the General Term revers-
ing, with leave to answer or demur, an order of the Special Term
JURISDICTION ON APPEAL FROM ORDERS. 221

 

Orders not appealable because resting in discretion.

 

quashing a return to an alternative mandamus and directing a
peremptory mandamus (People v. Clyde, 69 N. Y. 603), or by an
order of the Surrogate denying a motion to allow one having no
direct or contingent interest in the fund to intervene in proceedings
to compel an executor to pay over a legacy (Latter of the Estate
of Halsey, 93 N. Y. 48), and therefore no appeal lies from such
orders to the Court of Appeals.

Orders not appealable because resting in discretion.—
Where the decision of a motion rests in the discretion of the court
to which the application is addressed, and the court in the exercise
of that discretion has made its decision in the form of an order
granting or denying the relief sought, the determination so made
cannot be reviewed by appeal to the Court of Appeals. (See
ante, 217.)

Subdivision 2 of section 190 of the Code of Civil Procedure
expressly excludes from review orders made during the pendency of
the action if they rest in discretion. Subdivision 3 of that section
does not expressly prohibit a review of orders made in a special
proceeding or upon summary application after judgment if they
rest in discretion ; but this class of orders is covered by section 1337
of that act, which declares, among other things, that an appeal to the
Court of Appeals, from an order granting or refusing a new trial in
an action, or froma final order affecting a substantial right made
cither in a special proceeding or upon a summary application after
judgment in an action, brings up for review in that court every
question affecting a substantial right, and not resting in discretion,
which was determined by the General Term in making the order
from which the appeal is taken, except that a question of fact
arising upon conflicting evidence cannot be determined upon such
an appeal, unless where special provision for the determination
thereof is made by law.

The reason for not entertaining appeals from orders resting in
discretion was not founded upon the express restrictions of the Code,
but upon the character of the jurisdiction of the court, which is
confined to a review of questions of law, except where specially
authorized. Lawrence v. Farley, 73 N. Y. 187; Howell v. Mills,
538. N. Y. 322; Martin v. Wendsor Hotel Co., 70 N. Y. 101.

The rule that the Court of Appeals will not review orders of the
court below which rest in discretion is easily stated. But it is not
ro
bo
bo

New Terrars anp Appwars,

 

Orders not appealable because resting in discretion.

 

always easy to apply the rule and draw the line between what is a
legitimate exercise of discretion and what is legal error. There is a
recognized distinction between an absolute discretion, and that
which is governed by legal rules. The former is not reviewable by
the Court of Appeals, but the latter is. (People v. Common
Council, 78 N. Y. 56, 61; Howell v. Mills, 53 N. Y. 322; Anony-
mous, 59 N.Y. 313.) An absolute discretion is one which cannot
be governed by any fixed principles or rules. (Id.; Tripp v. Cook,
26 Wend. 143; People v. Superior Court of VN. Y.,5 Wend. 114,
125.) The class of orders not reviewable because discretionary are
substantially those addressed to the favor of the court, to which the
applicant has no absolute right, and which may or may not be
granted without wrong on either hand. (Matter of Eldridge, 82
N. Y. 161, 165.) Where, upon an application addressed to the favor
of the court, it becomes necessary to weigh conflicting evidence, to
decide as to the credibility of witnesses, to consider the effect to be
given to the conduct of the parties, or to determine any question as
to which there is no fixed established rule or controlling principle of
law, the order made upon the motion is deemed discretionary and is
not appealable to the Court of Appeals. (Anonymous, 59 N. Y. 313.)
A question of practice may affect a substantial right, and the ques-
tion may be such as to exclude the exercise of any discretion. But
such cases are exceptional, and the Code expressly provides for their
review by the Court of Appeals. (Code of Civil Pro. § 190, subd.
2; McCoun v. New York Cent. & H. R. R. Co., 50 N.Y. 176.)
Asarule, such questions go only to the mode of procedure, are in
the discretion of the court below, and are not reviewable by the
Court of Appeals. (See Zyng v. Halsted, 74 N. Y. 604; Tucker
v. Leland, 75 N. Y. 186.

It has been intimated that where the inferior court has established
a general rule of practice, not depending at all upon circumstances,
it has parted with its discretion so long as it retains the rule, and
conferred legal rights upon litigants in that court which it has no
power to withhold; and that in case the court should withhold
the right it may be compelled to grant it by mandamus. (See
People v. Superior Court of N. ¥., 5 Wend. 114.) But this
doctrine does not apply to appeals to the Court of Appeals. The
rules of the Supreme Court are generally under its control, and
are to be enforced and administered by it. That court may overlook
or relieve against a violation of the rules, or a non-compliance with
JURISDICTION ON APPEAL FROM ORDERS. 223

 

Orders not appealable because resting in discretion.

 

them, and with the exercise of this power the Court of Appeals will
not ordinarily interfere on appeal. (Martine v. Lowenstein, 68 N.
Y. 456. See Cole v. Gourlay, 79 N. Y. 527, 5385; O'Reilly v.
King, 28 How. 408, 411,413; Clark v. Brooks, 26 How. 285.)

Questions as to the mode of trial, or as to parties, can and should
be raised upon the trial, and an exception taken, to be heard on
appeal from the judgment. (Kellum v. Durfoo, 78 N. Y. 484.)
An order of the General Term affirming an order of the Special
Term granting leave to the plaintiff to serve a snpplementary sum-
mons and complaint, and to proceed in the action, omitting the
name of one of the defendants, is discretionary and not reviewable
by the Court of Appeals. (Angell v. Lawton, 75 N. Y. 540.) So
an order denying a motion to set aside a judgment of foreclosure
and sale because of the non-joinder of a party defendant involves a
question of practice only, and is not reviewable by the Court of
Appeals. (Zucker v. Leland, 75 N. Y. 186.)

The Court of Appeals will not interfere with the determination
of questions of practice in the mode of disposition by the court
below of causes on its own calendar (Kellum v. Durfoo, 78 N. Y.
484), nor will it review the form in which the court below expresses
its opinion. (Smith v. Rathbun, 88 N. Y. 660.) No appeal will lie
to the Court of Appeals from an order of the General Term refus-
ing to modify or change an order already made by it. Whether the
modification should be made is a question addressed to the discretion
vf the court below, and over its exercise, an appellate court has no
control. (Place v. Heward, 22 Week. Dig. 301.) An order direct-
ing an amendment of the record of the decision of the court below
by adding thereto the grounds of its decision (Buckingham v. Dick-
inson, 54 N. Y. 682), or an order directing any other amendment of
the record so as to correct a mistake therein and make it conform to
the facts (Baker v. Home Life Ins. Co., 63 N. Y. 630), is but an
exercise of the general power of the court relating to its practice,
and is not reviewable in the Court of Appeals. The question
whether a clerical error, consisting of the omission of the name of
a defendant from the prayer for judgment for a deficiency in the
copy of the complaint attached to the judgment-roll in an action for
foreclosure, should be disregarded, or amended, or the judgment set
aside, is of thesame class. (Zwcker v. Leland, 75 N. Y. 186.) An
order denying a reference of a referable action (Martin v. Wind-
sor Hotel Co., 70 N. Y. 101), or referring such an action ( Welsh v.
Q24 New Triats anp APPEALS.

 

Orders not appealable because resting in discretion.

 

Darragh, 52 N. Y.590; Harrington v. Bruce, 84 N. Y..103), or
denying a reference to take proof and recommend whether any or
what allowances should be made to attorneys for intervening policy-
holders in an action to dissolve an insolvent life insurance company
(Attorney-General v. Continental Life Ins. Co., 90 N.Y. 45), or an
order denying a motion for the settlement of the issues in an equity
action for trial by jury (Colman v. Diwon, 50 N. Y. 572), or direct-
ing the issues therein to be passed upon by a jury (Brinkley v.
Brinkley, 56 N. Y. 192. See Hewlett v. Wood, 62 N. Y. 75), or
setting aside the issues already tried, and directing other issues to be
settled and tried by a jury, or setting aside the verdict of the jury
upon issues already tried (Colie v. Tift, 47 N. Y. 119), is discretion-
ary and not reviewable by the Court of Appeals.

All stipulations and agreements made between parties in the
course of an action pending in the Supreme Court, and affecting
proceedings in it, and all orders entered thereon, are within the con-
trol of that court, and may be set aside in its discretion, whenever
the parties can be restored to the same condition they would have
occupied if no agreement had been made. (Barry v. Mutual Life
Ins. Co., 538 N. Y. 536.)

Where a party asks for some particular relief, not as a matter of
legal right, and the same or equivalent relief can be obtained by
some other remedy or mode of procedure, the granting or withhold-
ing of the relief sought rests in the discretion of the court of origi-
nal jurisdiction. (See Wilbor v. Danolds, 59 N. Y. 657; Foote v.
Lathrop, 41 N. Y. 3858; Sixth Avenue R. RB. Co. v. Gilbert Ele-
vated Le. R. Co., T11 N.Y. 480; Barry v. Mutual Life Ins. Co.
53 N. Y. 536; Heck v. Werder, 86 N. Y. 264; Beards v. Wheeler,
76 N. Y. 213; Matter of Hatch, 74 N.Y. 611; Stelwell v. Priest,
85 N. Y. 649. But see Predericks v. Taylor, 52 N. Y. 596.)

Where the moving party is not entitled to the relief specifically
demanded in the moving papers, it is discretionary with the court
whether it will grant other relief under the prayer for general relief,
or deny the motion. (See Van Slyke v. Hyatt, 46 N.Y. 259.

Where the moving party has been guilty of Zaches in making his
application, the denial of the motion is in the discretion of the court
to which it is addressed. (See Wade v. De Leyer, 63 N. Y. 318;
Depew v. Dewey, 56 N. Y. 657; Grant v. Griswold, 82 N. Y.
569.)

It is in the discretion of the court whether a party shall be
JURISDICTION oN APPEAL FROM ORDERS. 225

 

Orders not appealable because resting in discretion.

 

allowed to discontinue even a legal action without payment of costs
after issue joined. (Sec De Barante v. Deyermand, 41 N. Y. 355 ;
Staiger v. Schultz, 3 Keyes, 614, 616; Merritt v. Arden, 1. Wend.
91; Cuyler v. Coats, 10 How. 141; Wellington v. Classon, 18
How. 10; Zaaks v. Schmidt, 19 How.’ 413.) And it is equally
within the discretion of the court whether to grant or refuse an
application for leave to discontinue an action on payment of costs.
(Oarleton v. Darcy, 75 N. Y. 875. See Salmon v. Gedney, Id. 479,
482.) So the Supreme Court, in its discretion, may authorize the
discontinuance of a proceeding to acquire title to lands at any time
before the title is acquired and the rights resulting therefrom have
become vested in the property holder. (Matter of Military Parade
Ground, 60 N. Y. 319; Matter of Commissioners of Washington
Park, 56 N. Y. 144; see Mutter of Rhinebeck d& Conn. R. Re. Co.,
67 N. Y. 242, 245.)

The allowance of costs in equity cases is in the discretion of the
court, and is not reviewable. (Staiger v. Schultz, 3 Keyes, 614; Tay-
lor v. Root, 48 N.Y. 687; Herrington v. Robertson, 71 N. Y. 280;
Code of Civ. Pro. § 3230; Trial Practice, 879.) So an extra allow-
ance of costs, if within the limits prescribed by the Code and in a
ease there authorized, is in the discretion of the court of original
jurisdiction and not reviewable. (trekeler v. Litter, 62 N. Y. 372 ;
Southwick v. Southwick, 49 N.Y. 510; Comins v. Board of Super-
vesors, 64 N. Y. 626; Trial Practice, 409, 417. See Moyes v. Chil-
dren's Aid Society, 70 N. Y. 481.) So the amount allowed by an
order fixing the compensation of a sheriff for his trouble and expen-
ses in taking possession of and preserving property attaclied (see
Code of Civil Pro. § 8307, subd. 2), is in the discretion of the judge
issuing the warrant and is not reviewable by the Court of Appeals.
(German Am. Bank v. Morris Run Coal Co., 74 N. Y. 58. See
Woodruff? v. Imperial Fire Ins. Co., 90 N. Y. 521.)

An order opening a judgment taken by defanlt (Lawrence v.
Farley, 73 N. Y. 187; Alling v. Fuhy, 70 N. Y. 571; Vanderbilt
v. Schreyer, 81 N. Y. 646; People v. Superior Ct. of N. ¥..5
Wend. 114). or refusing to open such judgment (Depew v. Dewey,
56 N. Y. 657; Ferris v. Ferris, Id. 614; Smith v. Belden, 60 N.
Y. 642; Davis v. Borst, 58 N. Y. 669; Wade v. De Leyer, 63 N.
Y. 318), or an order granting or denying a motion to set aside an
order taken by default and for arehearing (Dfiller v. Tyler, 58 N.
Y. 477; Sievers v. Glover, 83 N. Y. 611. Sce also Matter of the
226 New Trrats anp AppPgAts.

 

Orders not appealable because resting in discretion.

 

Petition of Loew, 90 N. Y. 666), rest in discretion, and ordinarily
will not be reviewed by the Court of Appeals.

An order denying a motion to set aside a judgment for an omis-
sion to file a proper judgment-roll Whitney v. Townshend, 67 N.
Y. 40), or denying a motion to set aside a judgment regular on its
face upon the ground that the defendant had never been served
with process, and that the appearance by attorney was unauthorized
(vote v. Lathrup, 41 N.Y. 358), rests in discretion and is not
reviewable. So after a judginent in favor of the plaintiff has been
satisfied, it is within the discretion of the court to vacate it on
motion of the plaintiff, and to allow him to serve an amended com-
plaint adding new canses of action, although by so doing the statute
of limitations is avoided. (/Zatch v. Central Nat. Bank, 78 N. Y.
487; President, ete., of Mechanics Bank v. Minthorne, 19 Johns.
244. See Keck v. Werder, 86 N. Y. 264.)

An order staying the entry of judgment (Miannay v. Blogg, 41
N. Y. 521), or refusing to strike out an answer (Zabor v. Gardner,
41 N. Y. 232. See Wilkin v. Raplee, 52 N. Y. 248; People v.
Clyde, 69 N. Y. 603, 604), or refusing to set aside an execution
issued without leave after the expiration of five years (Bank of
Genesee v. Spencer, 18 N. Y. 150; Underwood v. Green, 56 N. Y.
247. Sce also, Beards v. Wheeler, 76 N. Y. 213; Bennett v. More-
house, 42 N. Y. 189), or denying a motion for leave to issue an
execution, where the facts underlying the motion are in dispute
(Shuman v. Strauss, 52 N. Y. 404), or denying leave to make a
supplemental answer where the facts show laches, or fraud, or
manifest injustice in allowing the proposed defense (Holyoke v.
Adams, 59 N. Y. 233 ; Spears v. Mayor, etc., of New York, 72 N.
Y. 442), or denying a motion to extend the time to demur to the
complaint (People v. Tweed, 63 N. Y. 194), or refusing to compel
an election between two causes of action stated in the same count in
the complaint, or to require them to be separately stated and
numbered (Id. ; See Goldberg v. Utley, 60 N. Y. 427), or denying a
motion to serve an aflidavit nune pro tune (Leggs v. Waydeil, 78 N.
Y. 586), or denying a motion to set aside a verdict, a report of a
referee, or a judgment, for matters in pais, dehors the record
( Williams v. Montgomery, 60 N. Y. 648; Meltzer v. Doll, 91 N.Y.
365; Gale v. New York Cent. & H. Ie. Re. Ie. Co. 76 N. Y. 594;
Comins v. Hetfield, 80 N. Y. 261; Gray v. Fisk, 58 N.Y. 630;
Leonard v. Mulry, 93 N. Y. 392; Livermore v. Bainbridge, 56 N.
JURISDICTION ON APPEAL FROM OrpDeErs. 2

bw
aT

 

Orders not appealable because resting in discretion.

Y. 72; Mundorff v. Mundorff, 59 N. Y. 635; Scoville v. Landin,
bo N. Y. 686; Lawrence v. Hly, 88 N. Y. 42; Selden v. Deluware
& Hudson Canal Co., 29 N. Y. 684; Bedell v. Chase, 34 N. Y.
386; Young v. Davis, 30 N. Y. 184; Smith v. Platt, 96 N.Y.
635; Dalrymple v. Hannum, 54 N. Y. 654), or an order of the
General Term denying a motion for a reargument (/lecschman v.
Stern, 90 N. Y. 110. But see Graham v. Linden, 50 N. Y. 547),
or for leave to renew a former motion (Bentley v. Waterman, 78 N.
Y. 623), or to amend or modify the General Term order (Id.), or an
order vacating an award by railroad commissioners and the confirma-
tion of the report (Matter of New York, West Shore & Buffalo R. R.
Co., 94 N. Y. 287; Matter of Kings County Elevated Ieailway Co.,
82 N. Y. 95; Matter of New York Cent. & Hudson R. Rk. LR.
Co., 64 N. Y. 60). or refusing to set aside such report for miscon-
duct, where the eviden’e thereof is conflicting (Matter of Prospect
Park & Coney Island R. R. Co., 85 N.Y. 489). or an order grant-
ing or denying an application for admission to the bar (Jlatter of
Beggs, 67 N. Y. 120), or granting or denying an inspection of books
and papers (Clyde v. Rogers, 87 N. Y. 625; 94 N. Y. 541; Stidwell
v. Priest, 85 N. Y. 649), or granting or denying a motion to set aside
a subpoena duces tecum (Id.), or granting or denying a bil of
particulars (Z2/ton v. Beecher, 59.N. Y. 176; People v. Tweed, 63
N. Y. 194. See Witkowski v. Paramore, 93 N.Y. 469 ; Dwight v.
Germania Life Ins. Co., 84 N.Y. 493), or permitting the transferee
of the interest of one or more of several plaintiffs to continue the
action in his own name (@efty v. Spaulding, 58 N. Y. 636. Butsce
Smith v. Zavinski, 94 N. Y. 519), or granting or denying leave to a
receiver to sue (Latter of Reeve, 34 N. Y. 359), or directing the
fees of a referee, appointed to take proof and report as to the claims
of a receiver of an insolvent corporation for fees and expenses, to be
paid directly out of the fund (Attorney General v. Continental Life
ins. Co., 93 N. Y. 45), is within the discretion of the court of origi-
nal jurisdiction and not appeaiable.

A court which appoints a receiver of the assets of an insolvent
corporation, may, in aid of the appointment, forbid any after inter-
ference by way of levy and seizure by attachment or execution with
the property in the possession of the receiver ; and this power, being
discretionary, cannot be reviewed by the Court of Appeals. ( Woeris-
hoffer v. North River Construction Co., 99 N. Y. 398.)

Orders granting, denying, or vacating attachments (Catlin v.

 
228 New Trias anp APPEALS.

 

Orders not appealable because resting in discretion.

fick, 91 N. Y. 668; Sartwell v. Field, 68 N. Y. 341; Allen v.

Meyer, 73. N. Y..1; Whitaker v. Imperial Shirt Manag Co., TS

N.Y. 621; Mettonal Shoe and Leather Bank v. Mechanics’ Ne inal
Bunk, »9 N. Y. 440; Dunlop v. Patterson Fire Ins. Oo., 74 N. Y.

145, 147; Wallace ,v. Castle, 68 N.Y. 3870), or granting, deny-

ing, continuing or dissolving preliminary injunctions (Ca/kin v.

Manhattan Oil Co., 65 N. Y. 557; People v. Schoonmaker, 50

N. Y. 499; Brown v. Keeney Settlement Cheese Association, 59.
N. Y. 242; Paul v. Munger, 47 N. Y. 469; Patten v. New York‘
Elevated R. R. Co.. 67 N. Y. 484; Pfohl v. Sampson, 59N. Y.174;,
Van Dewater v. Kelsey, 1 N. Y. 533; Rae v. Mayor, ete., of N. Ys.
62 N. Y. 631), or granting, denying, vacating, or refusing to vacate.
an order of arrest (Clarke v. Lowrte, 82 N. Y. 580; Liddell v.-
Paton, 67 N. Y. 393; King v. Arnold, 84 N. Y. 668); are discre-
tionary and not reviewable by the Court of Appeals, unless in excep-.
tional cases, such as a denial of the remedy for supposed want of
)}power to grant it, or the granting of the remedy in an unauthorized
case and the like.

The granting of a writ of mandamus is generally discretionary ;

‘and when this is the case, an order denying the writ will not be

eviewed in the Court of Appeals (Afatter of Sage, 70 N. Y. 220;
if ple v. Ferris, 76 N. Y. 326; People v. Campbell, 72 N.Y. 496),

nless it appears that the discretion of the court below has been
abused. (Matter of Dederick, 77 N. Y. 595. See People v. Clyde,
69 N.Y. 603.) But it may bea matter of legal right, and if in
such case it is refused, and there is no other adequate remedy, the
court will review and reverse the determination of the court below.
(People v. Common Council, 78 N. Y. 56.)

A writ of prohibition cannot be demanded as a legal right.
Whether or not the writ shall issue rests in the discretion of the
Supreme Court, and no appeal lies from its order refusing to grant
the writ. (People v. Westbrook, 89 N. Y. 152.) But where an
order allowing the writ deprives the party of a legal right, an appeal
lies to the Court of Appeals. (See People v. Justices of Marine
Court, 81 N. Y. 500.)

No appeal lies to the Court of Appeals from an order of the
Supreme Court quashing a common law writ of certiorari. (People
v. Hill, 53 N.Y. 547; People v. Board of Tax Commissioners,
85 N. Y. 655; People v. Stalwe, 19 N. Y. 531; People v. Board

 
- JURISDICTION ON APPEAL FROM ORDERS. 229

 

Orders not appealable because resting in discretion.

 

of Police Commissioners, 86 N. Y. 639; People v. Board of Fire
Commissioners, 77 N. Y. 605.)

The granting or denial of a motion for the examination of wit-
nesses and the production of papers under section 21 of the General
Assignment Act of 1877 (Laws of 1877, chap..466; Laws of 1878,
chap. 318), is so far discretionary that the decision of the judge
cannot be reviewed on appeal unless an abuse of his discretion
appears. (Matter of Holbrook, 99 N. ¥. 539.)

An order of the General Term of the Supreme Court reversing
an order of the Special Term adjudging a party guilty of criminal
contempt of court and punishing him therefor, is not reviewable in
the Court.of Appeals. (People v. Gilmore, 88 N. Y. 626.) An
order denying a motion to set aside or open an order punishing a
party for contempt in violating an injunction order is in the discre-
tion of the court, and cannot be reviewed by the Court of Appeals.
( Watrous v. Kearney, 79 N. Y. 496.) An order punishing for con-
tempt in violating an injunction can only be reviewed upon the
merits, or for alleged legal error, upon a direct appeal from the
order. (Id.) An order denying the plaintifi’s motion to attach the
defendant for an alleged contempt in neglecting to obey a decree
requiring him to pay money, upon the ground that the amount to be
paid was not specifically or definitely stated, and directing an
accounting before a referee to ascertain the amount, is discretionary,
and not reviewable. (Sutton v. Davis, 64 N. Y. 633.) The pro-
vision of the Code (Code of Civil Pro. § 613) declaring that in speci-
fied cases a jndgment may be enforced by punishing a judgment
debtor for contcinpt, is not imperative, and gives the judgment
creditur no absolute legal right to the exercise of the power con-
ferred. Its exercise is in the discretion of the court to which the
motiun is addressed ; and if that discretion is fairly exercised it will
not be reviewed. (Cochrane v. Ingersoll, 73 N. Y. 613.)

As a general rule, the question whether a re-sale of lands shall be
ordered in action of partition or foreclosure, is in the discretion of
the court below, and the order made upon a motion for such relicf
will not be reviewed upon the merits. (Goodell v. Harrington, 76
N.Y. 547; Lisher v. Hersey, 78 N.Y. 887; Wéinter v. Lekert, 93
N. Y. 867; Commonwealth Life Ins. Co. v. Bowman, 96 N.Y.
654; Buffalo Savings Bank v. Newton, 23 N. Y. 160; Dows v.
Congdon, 28 N. Y. 122; Hale v. Clawson, 60 N. ¥. 339; Crane v.
Stiger, 58 N. Y. 625.) But an application to set aside a judicial sale
230 New Triats anp APPEALS.

 

Orders not appealable because resting in discretion.

 

on the ground of fraud, involves a question of strict legal right, and
an order made thereon is not discretionary. (King v. Platt, 34
How. 26.) A collusive arrangement to prevent competition at a
judicial sale, and a sale in pursuance of such an arrangement, to the
injury of a party, isa fraud in law, and when this appears, especi-
ally where the injured party is an infant, an order denying a re-sale
will be reviewed in the Court of Appeals. (Howell v. Mills, 53 N.
Y. 322.) An infant is entitled to the protection of the court upon a
summary application to set aside a fraudulent judicial sale, as well
as in a formal action; and when the right to relief is once estab-
lished, it is not within the discretion of the court to reject the sum-
mary application, and remit the infant to his action. (Id.)

In all cases where a motion is made addressed to the discretion of
the court, which it may in its discretion grant or refuse, and the
exercise of its discretion is not limited by any statute, it may impose
terms to be complied with as a condition of granting the favor.
The moving party need not accept the conditions, and if he declines,
he then stands as if the favor was denied, and his right to review
the order does not extend beyond the General Term. (Matter of
Waverly Water Works Co., 85 N. Y. 478; Brownell v. Ruckman,
Td. 648. See Syracuse Savings Bank v. Syracuse, Chenango & N.
¥. R. R. Co., 88 N. Y. 110.) In other words, the imposition of
terms as a condition of granting a favor, does not make a diseretion-
ary order appealable. On the other hand, the fact that the court
might in its discietion, impose terms as a condition of granting or
denying a motion, does not affect the right to a review by the Court
of Appeals where the motion has been improperly granted or denied
absolutely. (Lredericks v. Taylor, 52 N. Y. 596.)

Upon an application for leave to issue an execution under section
‘1877 of the Code, where there is no denial of the allegation of non-
payment of the judgment, there is no discretion to exercise, and an
appeal lies from an order denying the motion. (Betts v. Garr, 26
N. Y. 883). Upon an application for alimony and expenses during
the pendency of an action for divorce, if the wife makes out a case
entitling her according to established principles of equity to such
relief, the amount to be allowed is in the discretion of the court, and
the exercise of such discretion will not be reviewed by the Court of
Appeals. So it may often rest in discretion whether to award or
refuse alimony under the circumstances of a particular case, and the
appellate court will ordinarily refuse to review the determination
JURISDICTION ON APPEAL FROM ORDERS. 231

 

Orders not appealable because resting in discretion.

 

of the court below. But where the facts are snch that on general
principles of equity the plaintiff is not entitled to demand alimony,
the question becomes one of law, reviewable by the Court of
Appeals. (Collins v. Collins, 71 N. Y. 269.) On an appeal to the
Court of Appeals from an order granting alimony pendente lite in
an action for divorce, the question of power in the court below is
the only one reviewable. (Kennedy v. Kennedy, 73 N.Y. 369.)
Where there is no power there can be no discretion. (Brinkley v.
Brinkley, 50 N. Y. 184, 203; Townsend v. Hendricks, 40 How.
143, 161.)

A claim to costs under a positive statutory provision, or a claim
to fees given and fixed by statute, does not involve any question of
discretion, and an order denying a party or officer such costs or fees
is reviewable by the Court of Appeals. (Sturgis v. Spofford, 58 N.
Y. 103; Hobart v. Hobart, 86 N. Y. 636.)

The question whether an attorney has been guilty of professional
misconduct does not rest in the absolute discretion of any court, and
an order punishing an attorney for alleged professional misconduct,
not committed in the presence of the court, but based upon evidence,
is reviewable upon the facts by the Court of Appeals. (Matter of
Eldridge, 82 N. Y.161.) The discretion exercised by the court
below in passing upon the facts in that class of cases, is what is
termed a “sound discretion,” and while it is not to be overruled in
cases of doubt, it is still the subject of review. (Id.)

In many cases it is said that the court will not review the exer-
cise of the discretion of the court below except in a clear case of
abuse. (See Lawrence v. Farley, 73 N. Y. 187; Llamosas v.
Llamosas, 62 N. Y. 618; Grant v. Griswold, 82 N. Y. 569; Mat-
ter of Dederick, 77 N, Y. 595; Winter v. Eckert, 93 N.Y. 367;
Matter of Weich, 74 N. Y. 299.

An abuse of judicial discretion has always been the snbject of
review in some form, and will be always corrected by the appellate
court. (Meyer v. Cullen, 54 N. Y. 392; Matter of Bezgs, 67 N. Y.
120.)

An abuse of discretion does not imply that the judge committing
it was actuated by any improper motive. (Afeyer v. Cullen, 54 N.
Y. 392) It may be the result of want of deliberation or of an
erroneous view of the law applicable to the facts of the case. Thus,
while the costs of an action in equity are in the discretion of the
court; but if that discretion was exercised under erroneous views of
239 New Triats anv APPEALS.

 

Orders determining the action and preventing final judgment.

the law affecting the rights of the parties, the appellate court will
correct the error. (Morris v. Wheeler, 45 N. Y. 708; Law v.
McDonald, 9 Hun, 23.) A writ of mandamus is discretionary as
distinguished from a writ of right. But although in this sense it is
in the discretion of the court to grant or refuse the remedy, yet it is
not an absolute and arbitrary discretion ; but the power is to be
exercised under, and may be regulated and controlled by certain legal
rules, and the exercise of that discretion may be reviewed by the
Court of Appeals. (People v. Common Council, 78 N. Y. 56.)
Upon an appeal from an order which may have involved the
exercise of a discretion, the burden is on the appellant to show that
it was made upona ground that did not authorize the court to
exercise any discretion in its decision, or the appeal will be dismissed.
(Cushman v. Brundrett, 50 N. Y. 296; McKenna v. Bolger, 94 N.
Y. 641; Ifills v. Hildreth, 81 N. Y. 915; Cole v. Malcolm, 66 N.Y.
363; Matter of Petition of N. Y. & A. BR. R. Co. 98 N. Y. 12.)
This must be shown by the order itself, and the opinion cannot be
looked to for the purpose of ascertaining the grounds of the decision
(Brooks v. Mexican Nat. Construction Co., 93 N. Y. 647; Matter
of Petition of N.Y. & H. Rk. R. Co.,98 N.Y. 12; Bate v.
McDowell, 97 N. Y. 646; Matter of Kings Co. Hevated Railway

Co., 82 N. Y. 95), unless in very exceptional cases.

Orders determining the action and preventing final judg-
ment.—An order which in effect determines the action and prevents
a final judgment is included by the Code in the enumeration of
appealable orders. (Code of Civil Pro. § 190, subd. 2.)

An order of the General Term of the Supreme Court affirming
an order of the Special Term granting a writ of prohibition
absolutely prohibiting an inferior court from further entertaining
jurisdiction of a cause pending therein “determines the action”
within the meaning of the subdivision above cited. (People v.
Justices of Marine Court, 81 N. Y. 500.) So an order which
grants an absolute, unlimited, unconditional stay of the proceeding
on the part of the plaintiff in a pending canse, in effect determines
the action and prevents a final judgment. (Hnowlton v. Providence
& NV. Y. Steamship Co.,53 N.Y. 76; Bennett v. Stevenson, Id.
508.

a render an order appealable under this provision of the Code
it must in effect determine the action as well as prevent a final

\
JURISDICTION ON APPEAL FROM ORDERS. 2338

 

Orders granting or refusing a new trial,

 

judgmen’. (See Jannay v. Blogg, 41 N. Y.521.) An order of
the General Term reversing an order of the Special Term by which
a judgment dismissing the complaint, without prejudice to the right
to bring a new action, is so amended as to permit the plaintiff to file
an amended complaint in the original action, does not come within
the provision. (Wew York Ice Co. v. Northwestern Ins. Co., 23
N. Y. 357.) An order of the General Term, reversing a judgment
of the Special Term dismissing the complaint, and directing the
entry of an interlocutory judgment, an accounting before a referee,
and the entry of a further and final judgment upon the coming in
and confirmation of his report, does not in effect determine the
action and prevent a final judgment. (Jones v. Jones, 81 N. Y. 35.)

Orders granting or refusing a new trial, are among the
classes or orders declared by the Code appealable to the Court of
Appeals (Code of Civil Pro. § 190, subd. 2), subject to certain
limitations, exceptions or conditions contained in that act, which will
be here noticed.

An appeal cannot be taken from an order granting a new trial,
on a case or exceptions, unless the notice of appeal contains an
assent, on the part of the appellant, that if the order is affirmed,
judgment absolute shall be rendered against the appellant. (Id.
§ 191, subd. 1. Sce ante, p. 64.)

An appeal cannot be taken from an order granting or refusing a
new trial, except in an action or special proceeding affecting the
title to real property or an interest therein, if the matter in con-
troversy, excluding costs, is less than five hundred dollars; unless
the court below, by an order made at the General Term which
rendered the determination, or at the next General Term after
judgment is entered thereupon, allows the appeal on the ground
that a question of law is involved which ought to be reviewed by
the Court of Appeals. (Code of Civil Pro. § 191, subd. 3. See
ante, p. 202.)

An appeal to the Court of Appeals will not be entertained when
the court below has ordered a new trial in a case tried by a jury, if
any material and controverted question of fact was involved, and
the General Term granted, or might have granted, the new trial on
such question of fact. (Marris v. Burdett, 73 N.Y. 136; Snebley
y. Conner, 18 N. Y. 218; Whztson v. David, 81 N. Y. 645; Wreght
v. Hunter, 46 N. Y. 409 ; Sands v. Crooke, Id. 564; Bronk v. New
234 New Triats ano Apprazs.

 

Orders granting or refusing a new trial.

 

York & New Haven R. Rh. Co., 95 N. Y. 656; Dickson v. Broad-
way & Seventh Ave. R. LR. Co., 47 N.Y. 507; Downing v. Kelly,
48 N. Y. 4383; Mackay v. Lewis, 54 How. 503; Goodwin v.
Conklin, 85 N. Y. 21; Wagner v. Long Island R. R. Co., 70 N.
Y. 614.)

Where exceptions have been taken, and a motion for a new trial
has also been made upon the minutes or at a Special Term, the
unsuccessful party may waive any further review upon the facts
and appeal the General Term from the judgment; and this appeal
will bring up the exceptions only. Or, where an appeal is taken
from the order refusing a new trial, as well as from the judgment,
the General Term may reverse the judgment upon the exceptions,
and at the same time affirm the order refusing a new trial on the
facts. In either case, the order of the General Term is appealable.
(Harris v. Burdett, 73 N. Y. 186, 189.)

No appeal lies to the Court of Appeals from an order denying a
notion for a new trial made upon the ground that the evidence did
not support the verdict, and that the damages were excessive.
(Campbell v. Page, 50 N. Y. 658; Peckv. New York Cent. & IH.
LR. R. R. Co.,70 N. Y. 587.) And no appeal lies from an order
denying a motion for a new trial made upon the ground of newly
discovered evidence (Meltzer v. Doll, 91 N. Y. 3653; Scoville v.
Landon, 50 N. Y. 686); or upon the ground of alleged misconduct
on the part of the jury. (Gale v. Mew York Cent. & H.R. Rk. Rk
Co., 76 N. Y. 594.) But an appeal lies to the Court of Appeals
from an order denying a motion fora new trial based upon the
ground of an alleged improper communication between judge and
jury after the latter have retired to consider their verdict. ( Water-
town Bank & Loan Co. v. Mix, 51 N. Y. 558.)

After an interlocutory judgment has been entered in an action,
and a motion for a new trial upon exceptions has been made at
General Term, an appeal may be taken to the Court of Appeals
from the order granting or denying this motion. ( Walker v. Spencer,
86 N. Y. 162; Raynor v. Raynor, 94 N. Y. 248.)

No appeal lies from an order granting a new trial in a special
proceeding. Such an order is not final, and it is only from final
orders that the Code authorizes an appeal to the Court of Appeals
in a special proceeding. (Code of Civil Pro. § 190, subd. 3; Jeoe v.
Boyle, 81 N. Y. 805.)

It was held that the authority to appeal from an order granting
JURISDICTION ON APPEAL FROM ORDERS. 235

 

Orders striking out a pleading or a part of a pleading.

 

a new trial given by section 11 of the Code of Procedure did not
apply to an action by the people to oust a defendant from an office
and to establish the rights of the relator thereto, and that the statute
contemplated a case where final judgment could be given under the
appellant’s stipulation which would dispose of the entire controversy.
(People v. Thatcher, 55 N. Y. 525.) This proceeds upon the theory
that where a judgment in favor of the defendant, in an action in the
nature of a guo warranto, has been reversed and a new trial granted
by the General Term, the effect of allowing an appeal to be taken
to the Court of Appeals might be to prevent any final determination
of a question in which the people have an interest; that should the
order of the General Term be affirmed by the Court of Appeals,
and judgment absolute be rendered against the appellant upon the
stipulation required by the Code, this judgment, while negativing
the appellant’s claim to the office and determining the action, would
not vest the relator with a title to the office, and would deprive him
of an opportunity of establishing that title in the court below. (Id.
See Williams v. Western Union Telegraph Co., 93 N. Y. 162, 194.)
The reasons which governed this decision seem to appiy with equal
force to an appeal in a similar case taken under the present statute.
(See Code of Civil Pro. § 1956.)

Every party has the right to appeal from an order granting a
new trial upon giving the stipulation required by section 191 of the
Code that, if the order be affirmed, judgment absolute shall be
rendered against him; and he cannot be deprived of this right
merely because he happens to be joined with others as a defendant
in a suit. (Wilkams v. Western Union Telegraph Co., 93 N. Y.
162, 194.) But it seems that it might be otherwise if the defendants
were jointly interested in the defensc, as for example, if sued as
partners. (Id.)

Orders striking out a pleading or a part of a pleading
are among the classes enumerated as appealable to the Court of
Appeals, (Ante, p. 196.)

An order denying a motion to vacate an ex parte order striking
out an answer, is in effect an order striking out a pleading within
the meaning of this provision of the Code. (Lice v. Ehile, 55
N. Y. 518, 524.)

An order directing judgment upon a pleading as frivolous, is not
an order striking out a pleading, is not embraced within any of the
236 New Triats aAnp APPRaLs.

 

Orders determining the constitutionality of a statute.

 

classes of orders specified in section 190 of the Code, and is therefore
not appealable to the Court of Appeals. (Briggs v. Bergen, 23
N. Y. 162; Armstrong v. Weed, 62 N. Y. 250; Jones v. Ludlum,
74. N. Y. 61; Commercial Bank of Rochester v. Spencer, 76 N. Y.
155.) The order is reviewable only on appeal from the judgment.
(Id. But see Lindon v. Beach, 6 Hun, 200.)

It has been held, that an order of the General Term affirming an
order of the Special Term, striking out a portion of an answer as
irrelevant, requiring other portions to be made more definite and
certain, and giving the defendant leave to make and serve an
amended answer within a specified time, and in default thereof
directing that the portion of the answer directed to be made more
definite and certain be stricken out, is not appealable. (/Zanover
Fire Ins. Co. v. Tomlinson, 58 N. Y. 651.)

Orders deciding an interlocutory application or question
of practice, are appealable to the Court of Appeals if tliey involve
a substantial right, and do not rest in discretion. (Code of Civil
Pro. § 190, subd. 2.) If they do not involve such right, or do rest
in discretion, they are not appealable. (AfeCoun v. Mew York
Central & H. Re. R. R. Co., 50 N. Y.176.) A departure from the
Code in any particular in the progress of an action, does not necessa-
rily affect a substantial right. A strict and literal compliance with
a statutory regulation is not necessarily of the substance of the
remedy, or substantial in its character. Whatever is a question of
practice is of the same character, whether it arises under a positive
statute, an express rule of conrt, or the settled usages and law of
procedure. Under either, a substantial right may be affected, and
the questions may be such as to exclude the exercise of any discre-
tion ; but these are exceptional cases. ([d.) The class of orders which
affect a substantial right, and do not involve any question of discre-
tion have been heretofore noticed. (See ante, pp. 215, 221-232.)

Order determining the constitutionality of a statute.—
An order which determines a statutory provision of the State to be
unconstitutional, is appealable to the Court of Appeals, if the deter-
mination appears from the reasons given for the decision, or is
necessarily implied in the decision. (Code of Civil Pro. § 190,
subd. 2.)

It does not follow from an allegation or averment of a litigant
JURISDICTION ON APPEAL FROM ORDERS, 234

 

Final orders in special proceedings.

 

that a particular law, which enters into, or perhaps is the foundation
of the litigation, is unconstitutional, that every order made in the
progress of the action determines the constitutionality of such law.
To render an order appealable, upon the ground that it determines a
statutory provision of the State to be unconstitutional, the order
must have been made an an action commenced, or brought into the
Supreme Court, or one of the Superior City Courts (Code of Civil
Pro. § 190, subd. 2); the constitutional question must have been
directly passed upon in making the order (see People v. Schoon-
maker, 50 N. Y. 499); the determination must appear from the
reasons given for the decision, or must be necessarily implied in the
decision (Code of Civil Pro. § 190, subd. 2); and the order must have
deprived the party of some substantial right which the statute,
adjudged to be unconstitutional, gave him, (Id.; People v. Schoon-
maker, 50 N. Y. 499, 501.)

‘Orders made upon summary application after judgment.
are such as recognize the original regularity and validity of the
judgment, and are based on facts and circumstances occurring subse-
quently. (Sherman v. Felt,2 N. Y. 186; Dunlop v. Edwards, 3
N. Y. 341; Salles v. Butler, 27 N. Y. 638; Selden v. Delaware &
Hudson Canal Co., 29 N. Y. 634.)

Orders of this nature are appealable, if they are final, affect a
substantial right, and are not discretionary. (Mills v. Davis, 53
N. Y. 349, 351; Code of Civil Pro. § 190, subd. 3.)

 

Final orders in special proceedings.—A final order affecting
a substantial right made in a special proceeding may be reviewed
upon an appeal taken to the Court of Appeals; and upon such
appeal the court may review any intermediate order involving the
merits and necessarily affecting the order appealed from. (Code of
Civil Pro. § 190, subd. 3.)

No appeal to the Court of Appeals from an order made ina
special proceeding is authorized by the Code unless the order is
final (See oe v. Boyle, 81 N. Y. 305; People v. Smith, 85 N.Y.
628 ; Whittlesey v. Hoguet, 66 N. Y.358; Matter of Horsfalls, TT
N.Y. 514; Matter of N. Y. & Harlem R. &. Co., 31 Alb. L. J.
374; Matter of Auchmuty, 79 N. Y. 622; Matter of Moore, 67
N. Y. 555), and affects a substantial right. (See Iatter of Halsey,
93 N. Y. 48; People v. Clyde, 69 N. Y. 603.)
238 New Tracts anp APPEALS.

 

Final orders in special proceedings.

 

An order adjudging a defendant in contempt, and prescribing a
punishment thercfor, is made in a special proceeding, affects a
substantial right, and if final, is appealable to the Court of Appeals.
(Sudlow v, Know, 7 Abb. N. 8.411; People v. Dwyre, 90 N.Y.
402; Erie Railway Co. v. Ramsey, 45 N.Y. 637. See Matter of
Eldridge, 82 N. Y. 161.) But ifthe order is conditional, and the
punishment is not inflicted absolutely, but is within the power of
the defendant to avert, the order is not final, and therefore not
appealable. (Brinkley v. Brinkley, 47 N. Y. 40.)

Among the orders made in special proceedings held not appeal-
able to the Court of Appeals because not final, are orders granting a
new trial (oe v. Boyle, 81 N. Y. 305); an order of reference in a
proceeding by certiorari under the act of 1880 to review and cor-
rect an alleged illegal, erroneous or unequal assessment (People v.
Smith, 85 N. Y. 628); an order of the General Term reversing an
order of the Special Term vacating an assessment for local improve-
ment, and remitting the case to the Special Term for modification
of the assessment in accordance with the opinion delivered by the
General Term (Matter of Auchmuty, 79 N.Y. 622); an order
of the General Term affirming an order of the Special Term vacating
a prior order vacating an assessment for local improvement
(Matter of Moore, 67 N. Y. 555); an order of the General Terin
affirming an order of the Special Term reviving a special proceed-
ing, instituted against a discharged trustee and pending at his death,
against his executors (Whittlesey v. Hoguet, 66 N. Y. 358); an
order affirming an order of a Surrogate requiring an executor to
account, and directing a reference to ascertain his residence and
whether he has an office in the State (Matter of Halsey, 93 N. Y.
48); an order of the General Term reversing, with leave to the
relator to plead to the return, an order of the Special Term quashing
areturn toa writ of alternative mandamus and directing a peremptory
mandamus (People v. Clyde, 69 N. Y. 603); and an order of the
General Term affirming an order of the Special Term appointing
commissioners to open a city street. (Jfatter of Fowler, 53
N. Y. 60.)

A final order, within the meaning of the Code, is one which
finally determines the rights of the parties to the special proeceding
(See Code of Civil Pro. §§ 1997, 2550), and, while it may not be
practicable to give a definition which will apply in all cases, it is
safe to assume that an order made in a special, proceeding, which
JURISDICTION ON APPEALS FROM ORDERS. 93Y

 

Orders made conclusive and non-appealable by statute.

 

disposes of every question before the court, and fully settles the
rights of the parties, reserving nothing, and leaving nothing to be
adjudicated, is final, and will be so held upon appeal. (See Jyatt v.
Seeley, 11 N. Y. 52, 57.)

Orders made conclusive and non-appealable by statute.—
Where a law declares that the order of the Supreme Court is final,
itcannot be reviewed upon any suggestion of irregularity, mistake or
error, either of law or fact, aud no appeal to the Court of Appeals
can be taken therefrom, althongh it is a final order, affecting a sub-
stantial right, made in a special proceeding. (Matter of Commis-
stoners of Central Park, 50 N. Y. 493.)

For this reason no appeal lies to the Court of Appeals from an
order of the General Term of the Supreme Court confirming the
report of commissioners to appraise the compensation to be made
for land proposed to be taken under the general railroad act, and
refusing to direct a new appraisal. (Wew York Cent. R. 2. Co. v.
Marvin, 11 N. Y. 276; People v. Betts, 55 N.Y. 600; Matter of
Delaware & Iudson Canal Co., 69 N. Y. 209 ; Mutter of Prospect
Park, etc., Ie. R. Co., 85 N.Y. 489.) But an appeal lies to the
Court of Appeals from an order of the General Term affirming an
order of the Special Term appointing commissioners of appraisal
(Rensselaer & Saratoga R. R. Co. v. Davis, 43 N.Y. 187, 147),
or affirming an order of the Special Term vacating an order ap-
pointing new commissioners. (Matter of Long Island I. I. Co.,
45 N. Y. 364.) But an order of the General Term vacating the
award of the commissioners and the confirmation thereof, and
directing a new appraisal before new commissioners cannot be
reviewed by the Court of Appeals, not however, because the statute
has made the determination of the Supreme Court conclusive, but
because the determination involves questions of fact and matters of
discretion of which the Court of Appeals cannot take cognizance.
(Matter of New York, West Shore & Buffalo R. I. Co., 94 N. Y.
287; Matter of New York Cent. & Hl. R. LR. Le. Co., 64 N. Y. 60.)

An order of the County Court under the Drainage Act (Laws of
1869, chap. 888 ; Laws of 1871, chap. 303), auditing and confirming
the accounts of commissioners appointed under that act, is appeal-
able to the General Term of the Supreme Court upon questions of
law, and to the Court of Appeals upon appeal from the determina-
tion of the latter court. The provision of section 12 of that act
240 * New Trrats anp APPEALS.

 

Jurisdiction as to the awards of vosts,

 

makes the decision of the County Court final only upon matters of
fact. (Matter of Ryers, 72 N. Y.1; see, also, Matter of Swan, 97
N. Y. 492.) A provision in a statute that the report of commis-
sioners, when confirmed, “shall be final and conclusive,” is final
only as to the matters which the commissioners were called upon
and had the power to determine. (Matter of Department of Pub-
luc Parks, 85 N. Y. 459.)

 

Jurisdiction as to the award of costs.—The allowance of costs
in legal actions and proceedings affects a substantial right, and is
reviewable in the Court of Appeals, if legitimately before that court,
unless the allowance was discretionary. (Sturgiss v. Spofford, 58
N. Y. 103; McGregor v. Comstock, 19 N. Y. 581; Beryen v. Car-
man, 79 N. Y. 146.) If, in making an order, the General Term
imposes costs upon a party in a case where the statuie gives no
authority to impose costs, the party aggrieved may have so much of
the order as imposes costs upon him reviewed upon appeal to the
Court of Appeals, although the remainder of the order may not be
such as that court has jurisdiction to review. (See People v. Gil-
more, 88 N. Y. 626.) In such case the question of costs is wholly
independent of the question of the right to the relief granted or
denied by the remainder of the order, and does not require the
appellate court to inquire as to the matters not within its jurisdic-
tion. And generally, when the question of costs is a matter of strict
right, or the principal object of the controversy, it may be reviewed
in the Court of Appeals upon an appeal from so much of the order
as awards costs. (fatter of New York, West Shore & Buffalo R.
RR. Co. 94 N. Y¥. 287, 292; Crosby v. Stephan, 97 N. Y. 606.)
But in order to entitle a party to such review, the notice of appeal
should state specifically that it is taken from such part of the order.
(Id.; Code of Civil Pro. § 1300.)

Where costs are awarded by an order which the Court of Appeals
has no jurisdiction to review upon the merits, and the award of costs
depends upon the conclusion reached upon the merits of the motion,
so that in order to determine whether costs were properly allowed or
not, the Court of Appeals would be required to review matter over
which it has no jurisdiction, that court cannot consider the propriety
of the order, even so far as it awards costs. (Crosby v. Stephan, 97
N. Y. 606 ; Datter of New York, West Shore & Buffalo R. R. Co.,
94 N. Y. 287, 292.) Andif the case is one where the court has
Procurine A CERTIFICATE OR ORDER. 241

 

Procuring a certificate or order.

 

jurisdiction to review the award of costs, this does not confer juris-
diction to review the whole order. (Id.)

ARTICLE II.

PROCEEDINGS TO TAKE AND PERFECT THE APPEAL, AND TO
STAY THE EXECUTION OF THE JUDGMENT OR ORDER.

SECTION L
Procurmne A CERTIFICATE OR ORDER ALLOWING THE APPEAL.

In some eases, the right to take an appeal to the Court of
Appeals.is made dependent upon the action of the General Term
of the court whose determination is sought to be reviewed. Upon
an appeal from a final judgment in an action, the appellant may
obtain a review of an interlocutory judgment rendered therein, by
specifying it in his notice of appeal; and ordinarily this is the only
mode by which a party can obtain a review of an interlocutory
judgment by the Court of Appeals. (See ante, p. 212.) The
statute makes an exception where an interlocutory judgment has
been entered upon the decision of a demurrer. After an appeal
from such judgment has been taken to the General Term, and there
decided, the defeated party may obtain a review of this decision by
the Court of Appeals, “provided the General Term shall certify,
that in its opinion the question arising therein is of sufficient import-
ance to render a decision by the Court of Appeals desirable before
proceeding farther.” (Code of Civil Pro. § 190, subd. 4.) This
certificate is indispensable to the right to take an appeal to the Court
of Appeals in the case specified. The statute does not prescribe the
time within which this certificate shall be obtained, nor the proced-
ure upon an application therefor ; but as the certificate is a prelimi-
nary to the appeal, and the appeal must be taken within sixty days
after the service on the attorney for the appellant of a copy of
the judgment, and notice of the entry thereof, the time within
which this certificate must be obtained is practically limited.

The statute also provides, that an appeal cannot be taken in an
action commenced in a court of a justice of the peace, or in the City
Court of N ow York, or ina District Court of that city, or in the
249 New Trrats anp APPEALS.

 

Procuring a certificate or order.

 

City Court of Yonkers, or in a Justices’ Court of a city, unless the
court below allows the appeal by an order made at the General Term
which rendered the determination, or at the next General Term
after judgment is entered thereupon. (Code of Civil Pro. § 191,
subd. 2.) An action discontinued because the answer set forth matter
showing that the title to real property came in question, and after-
wards prosecuted in another court, is not deemed to have been com-
menced in the court wherein the avswer was interposed, within the
meaning of this subdivision. (Id.)

It also provides, that an appeal cannot be taken from a judgment,
or from an order granting or refusing a new trial, except in an
action or special proceeding affecting the title to real property or an
interest therein, if the matter is controversy, excluding costs, in less
than five hundred dollars, unless the court below, by an order made
at the General Term which rendered the determination, or at the
next General Term after judgment is entered thereupon, allows the
appeal on the ground that a question of law is involved which ought
to be reviewed by the Court of Appeals. (Code of Civil Pro. § 191,
subd. 3; see ante, p. 202.)

It also provides, that an appeal cannot be taken to the Court of
Appeals from a final determination of the General Term of the
Supreme Court, or of a Superior City Court, upon an appeal taken
thereto in a special proceeding to recover the possession of real
property, unless the latter court, by an order made at the General
Term where the final order is made, or at the next General Term
thereafter, allows it to be taken. (Code of Civil Pro. § 2261.)

Where the statute provides that the order allowing the appeal
to be taken to the Court of Appeals must be made at the General
Term which rendered the determination, or at the next General
Term after judgment is entered thereupon, no subsequent General
Term has power to make the order. (De Freest v. City of Troy, 34
Hun, 580.)

The party desiring a review by the Court of Appeals in a case
where a certificate or order of the General Term is necessary, should
give notice to the adverse party that he will apply to the General
Term, on a day specified, for the certificate or order. If the motion
is to be made at the term at which the appeal was decided, it should
be noticed for some regular motion day of that term. (See Rule 43.)
In the Superior Court of the City of New York motions for leave
Procurine A CERTIFICATE oR ORDER. 243

 

Procuring a certificate or order.

 

to appeal to the Court of Appeals must be submitted on the papers
without oral argument. (Rule 6, Supr. Ct.)

If leave to appeal is granted in a case where the amount in con-
troversy is less than five hundred dollars, the order allowing the
appeal should state, that it is allowed upon the ground that a ques-
tion of law is involved which ought to be reviewed by the Court
of Appeals; and if this is omitted, the appeal may be dismissed.
(See Bastable v. City of Syracuse, 72 N. Y. 64; Code of Civil
Pro. § 191, subd. 3.) Ifthe application is made for the purpose of
obtaining a review of the determination of the General Term upon
an appeal froin an interlocutory judgment entered upon the decision
of a demurrer, the certificate granted by the General Term should
contain a statement that in its opinion the question arising in the
case determined is of sufficient importance to render a decision by’
the Court of Appeals desirable before proceeding further. (See Id.
§ 190, subd. 4.) In other cases it will be sufficient to obtain an
order allowing the appeal to the Court of Appeals without a state-
ment of the reasons therefor. The determination of the General
Term, granting or denying leave to appeal, is not subject to review.
(People v. Fowler, 55 N. Y. 675.)

Where the amount in controversy is less than five hundred
dollars, and an application is made for leave to appeal from the
determination of the General Term to the Court of Appeals, the
General Term will not grant the order unless it is satisfied that the
questions of law involved in the case are of such a nature that they
ought to be reviewed by the court of last resort, and that they either
involve the construction of a public statute, or involve questions of
law of public importance or affecting a large public interest ; or that
a large number of cases are depending upon the determination of the
one case ; or that the principles involved are of importance to others
than the parties litigating ; and, in either case, that there is fair and
reasonable ground to doubt the correctness of the decision sought to
be reviewed. (Butterfield v. Radde, 47 How. 535; 6 Jones & Sp.
44; 58 N.Y. 489.) If the court does not deem the principle
involved in the case of sufficient importance to justify its being
earried to the Court of Appeals (See Woodward v. Bugsbee,. 2
Hun, 128, 683; amilton v. Third Ave. R. R. Co. 9 Sones & Sp.
588; Deutsch v. Reilly, 19 Alb. L. J. 162. See Annan v. Ritchie,
6 Daly, 331), or if the decision is based upon a reported case in the
Court of Appeals (See Josuez v. Murphy, 6 Daly, 404), leave to
244 New Triats anp APPEALS.

 

Time within which the appeal must be taken.

 

appeal will not be granted. But leave to appeal will be granted
where there is a doubt as to the correctness of the decision (Alfaro
y. Davidson, 8 Jones & Sp. 289; Spence v. Lindo, 19 Alb. L. J.
162), or where the rules and principles of law involved are import-
ant, and affect large and varied public interests, and have not been
settled by the court of last resort (Adlantie & Pacific Tel. Co. v.
Barnes, 7 Jones & Sp. 357; Supervisors of Richmond v. Van
Clief, 16 Abb, Pr. N.S. 97), or where there are numerous other
cases pending involving the same question. (/%scher v. Hope Mut.
Ins. Co., 8 Jones & Sp. 550.)

SECTION II.
TIME WITHIN WHICH THE APPEAL MUST BE TAKEN.

An appeal to the Court of Appeal from a final judgment must
be taken within one year after final judgment in entered upon the
determination of the General Term of the court below, and the
judgment-roll filed. An appeal to the Court of Appeals from an
order must be taken within sixty days after service upon the
attorney for the appellant of a copy of the order appealed from and
a written notice of the entry thereof. (Code of Civil Pro. § 1325.)
An appeal to the Court of Appeals from an interlocutory judgment
entered on the decision of a demurrer, must be taken within sixty
days after the service on the attorney for the appellant of a copy of
the judgment and notice of the entry thereof. (Id. § 190, subd. 4.)
But when the appeal is taken from a final judgment, the review of
an interlocutory judgment, or of an intermediate order, which is
specified in the notice of appeal, is not affected by the expiration of
the time within which a separate appeal might have been taken
therefrom (Id.§ 1316), nor does the expiration of the time within
which to take an original appeal from an determination of the
General Term affirming an interlocutory judgment or from an
order of the General Term denying a new trial, impair the right of
the respondent to review such determination by cross-appeal, where
the adverse party has appealed to the Court of Appeals from a final
judgment taken, after such determination, at a Bpetk al or Trial Term,
or pursuant to the directions of a referee. (Id. § 13850.) An appeal
from the award of the Board of Claims must be aa within thirty
Preparine AND Srrvine A Novice or APPEAL. Q45

 

Form and contents’ of the notice.

 

days after service of notice of the final award of the board. (Laws of
1883, chap. 205, § 10.)

The time within which either party is entitled to appeal to the
Court of Appeals from a judgment or order cannot be extended,
either directly or indirectly, by a court or judge, except where the
party entitled to appeal has died before the expiration of the time
within which the appeal might be taken. (Code of Civil Pro. §§
784, 785. See ante, 59.)

The general principles relating to the limitation of the time to
appeal have been discussed elsewhere. (See ante, pp. 56-62.)

SECTION IIL
PrReparine AND seRvinG 4 Norick or APPEAL.

An appeal to the Court of Appeals is taken by serving a notice
of appeal upon the attorney for the adverse party and upon the clerk
with whom the judgment or order appealed from is entered. (Code
of Civil Pro. § 1300.)

Form and contents of the notice.—The Code does not pre-
scribe a form for the notice of appeal, but merely requires that it
shall be entitled in the appellate court (Code of Civil Pro. § 1295:
See Clickman v. Clickman, 1 N.Y. 611; 3 How. 365), shall be in
writing; and to the effect that the appellant appeals from the judg-
ment or order, or from a specified part thereot (Code of Civil Pro.
§ 1300), and, if the appeal is taken from an order granting a new
trial on a case or exceptions, the notice shall contain an assent on the
part of the appellant, that if the order is affirmed, judgment absolute
shall be rendered against him. (Id. § 191, subd. 1. See anie,
p. 64.)

If the appeal is from a final judgment, or from a final order ina
special proceeding, and the appellant intends to bring up for review
thereupon an interlocutory judgment, or an intermediate order, he
must in the notice of appeal distinctly specify the interlocutory
judgment or intermediate order to be reviewed. (Code of Civil Pro.
§ 1801; Id. §§ 1316, 1317. Sce ante, p. 63.)

If the appeal is from an award of the Board of Claims, it must
be in writing, must briefly state the grounds upon which it was
246 New Trrats AND APPEALS.

 

Danger of an appeal from an order granting a new trial.

 

taken, and must be subscribed by the party or his attorney. (Laws
of 1883, chap. 205, § 10.)

The general requisites of a notice of appeal have been given
elsewhere. (See ante, p. 62.) The forms in common use will be
found in the Appendix.

Danger of an appeal from an order granting a new trial.
—As an appeal cannot be taken from an order granting a new trial,
on a case and exceptions, unless the notice of appeal contains an
assent on the part of the appellant, that if the order is affirmed,
judgment absolute shall be rendered against him (Code of Civil Pro.
§ 191, subd. 1); and as in case of affirmance of the order, the court
has no alternative but to enforce the stipulation (Id. § 194; God-
frey v. Moser, 66 N.Y. 250; Snebley v. Conner, 78 N.Y. 217;
Hitchings v. Van Brunt, 38 N.Y. 335; Cobb v. Hatfield, 46 N.
Y. 533; Lake v. Nathans, 67 N.Y. 589; Hiscock v. Harris, 80
N. Y. 402), a party should consider well the possible result of the
step before hazarding his entire case by an appeal from such an
order. “There is but a single class of cases, and the individual
cases coming within it are rare, in which this course can prudently
be adopted. It is only proper and admissible when the sole ques-
tion that can be presented upon the record, relates to and will deter-
mine the merits of the controversy, unembarrassed by incidental
questions affecting the trial, but not necessarily decisive of the true
merits of the litigation. If every fact that can affect the result has
been upon the trial adjudged favorably to the party against whom
the new trial has been granted, and no exception has been taken to
’ the admission or rejection of evidence, or to the rulings upon minor
or incidental questions. in the progress of the trial, which, if well
taken, will entitle the exceptant to a new trial; in other words, if
the objections and exceptions taken at the trial, and to the recovery,
cannot be obviated upon a second trial, but the verdict and judg-
ment must necessarily be adverse to the party against whom the new
trial has been granted, if the order and decision stand, an appeal
from the order, with the stipulation for judgment absolute in case
the order is sustained, may be advisable.” (Codd v. Hatfield, 46 N.
Y. 533, 588, per Atuex, J.) But ordinarily there are exceptions
which, if well taken, will entitle the unsuccessful party to a new
trial, but the decision of which will not finally or necessarily deter-
mine the merits of the action or the rights of the parties; and in
Preparing AND Servine Notice or APPEAL. 247

 

Service of the notice.

 

such cases the exceptions must be clearly frivolous to justify the
hazard of an appeal from an order granting a new trial, with con-
sent to judgment absolute upon affirmance. (Id.) And especially
should a plaintiff consider well before appealing from an order grant-
ing a new trial, where the defendant sets up a counter-claim which
will entitle him to judgment for affirmative relief in case the appeal
is taken and the order is affirmed. (See Hiscock v. Harris, 80 N.
Y. 402.

The appellant must be prepared to take the risk, not only of the
questions considered by the court below, and upon which they may
have made the order, but of every other exception appearing by the
record, and of every legal error which the respondent can show in
support of the order, whether noticed. by the court below or not.
(Mackay v. Lewis, 73 N. Y. 882; Hrekeler v. Thaule, 73 N.Y.
608; Simar v. Canaday, 53 N. Y. 298, 306.)

Service of the notice.—The Code requires that the notice of
appeal shall be served upon the attorney for the adverse party, and
upon the clerk with whom the judgment or order appealed from is
entered. Service upon the attorney for the adverse party must be
made in the manner prescribed by the general provisions of the Code
relating to the service of papers in an action. (Code of Civil Pro.
$1300. Sce also, §$ 796-802.) If the attorney for the adverse
party is dead; or if he has been removed, and notice of the removal
las been served upon the appellant’s attorney, and another attorney
has not been substituted in his place; or if for any reason, service of
a notice of appeal upon the proper attorney for the adverse party
cannot, with due diligence, be made within the State, the notice of
appeal may be served upon the respondent in the manner prescribed
by law for serving it upon an attorney. If personal service upon
the respondent cannot with due diligence be made within the State,
the notice of appeal may be served upon him, and notice of the sub-
sequent proceedings may be given to him as directed by a judge of
the court in or to which the appeal is taken. (Id. § 1302.)

The attorney and guardians ad litem of the respective parties in
the court below are deemed the attorneys and guardians of the same
parties respectively in the Court of Appeals, until others are retained
or appointed, and notice thereof is served on the adverse party.
(Rule 4, Ct. App.)

Service upon the clerk is ails by filing the notice of appeal in
248, New Triats anpD APPEALS.

 

Case on appeal from award of the board of claime.

 

his office. (Id. § 1800.) If the appeal is taken from a judgment or
order rendered or made by the General Term of the Court of Com-
mon Pleas upon an appeal taken thereto from the City Court of
New York, the notice of appeal must be filed with the clerk of the
City Court. (Id. § 3195.) If the appeal is taken from a final
award of the Board of Claims the notice must be served upon the
clerk of the Board and upon the Attorney-General ; if the appeal is-
taken by the State, the notice must be served upon the clerk of the
Board, and the claimant, or the attorney appearing for him.

Service of the notice of appeal must be made in the same manner as
in the Supreme Court. (Laws of 1883, chap. 205, $10.) The mode
of making proper service of a notice of appeal has been discussed in
another chapter of this work. (See ante, p. 66.)

SECTION IV.
Cask on APPEAL FROM AWARD OF THE Boarp or Criams,

Where an appeal is taken from an award of the Board of Claims,
the appellant, at or before the time of serving the notice of appeal,
must make and serve upon the Attorney-General, or, if the appeal is
taken by the State, upon the claimant or the attorney appearing for
him on the hearing before the Board, a case containing so much of
the evidence given before the Board as may be necessary to present
the questions raised by the notice of appeal. The respondent may
propose amendments to the case, and it must be settled and signed
by one of the commissioners before whom the case was heard.
(Laws of 1883, chap. 205, § 10.) The practice in the Supreme
Court as to the service of a proposed case and amendments thereto
and the settlement of the samie seems to govern the settlement
of a case on an appeal from an award of the Board of Claims.
(See Id. § 11.) This practice has been discussed elsewhere.
(See ante, pp. 189-153.)
Sxcurity to Perrecr tHE APPEAL. 249

 

Security to perfect the appeal.

 

SECTION V.
SECURITY TO PERFECT THE APPEAL.

To render a notice of appeal to the Court of Appeals effectual
for any purpose, except in a case where it is expressly prescribed
by law that security is not necessary to. perfect the appeal, the
appellant must give a written undertaking to the effect that he will
pay all costs and damages which may be awarded against him on the
appeal, not exceeding five hundred dollars. (Code of Civil Pro.
§ 1826.) This undertaking must be filed with the clerk with whom
the judgment or order appealed from is entered (Id. §§ 816, 1307),
and a copy thereof, showing where it is filed, must be served upon
the attorney for the adverse party with the notice of appeal, or
before the expiration of the time to appeal. (Id. § 1334.) The
service will be in time if made after service of the notice of appeal,
but before the time to appeal expires. (Blake v. Lyon & Fellows
Manuf. Co., 75 N. ¥. 611.)

The cases in which it is prescribed by law that security is not
necessary to perfect an appeal have been noticed. (See ante, p. 69.)
No security is required upon an appeal taken by the people of the
State, or by a State officer, or board of State officers (Code of Civil
Pro. § 1313), or upon an appeal taken by a domestic municipal cor-
poration, unless required by the court in or from which the appeal
is taken (Id. § 1314), or on an appeal from an award by the Board
of Claims (Laws of 1883, chap. 205, § 11), or on an appeal by a
receiver of an insolvent bank from an order confirming the apportion-
ment of the debts and liabilities of the corporation among its stock-
holders. (Laws of 1882, chap. 409, § 152.) The respondent may
also by written stipulation waive the giving of any security required
by the Code to perfect the appeal (Code of Civil Pro. § 1305. See
ante, p. 89); or in lieu of the undertaking the appellant may
deposit with the clerk with whom the judgment or order appealed
from is entered, a sum of money equal to the amount for which the
undertaking is required to be given, and give notice of the deposit
to the respondent. The deposit has the same effect as filing the
undertaking ; and notice that it has been made has the same effect
as notice of the filing and service of a copy of the undertaking.
250 New Triats anp APpEALs.

 

Security to perfect the appeal.

 

(Code of Civil Pro. § 1306.) The effect of giving the undertaking
and serving acopy with notice of the filing, is to perfect the appeal.
(Id. § 1826.) The proper mode of serving and filing an undertaking
to perfect an appeal, and the requisites of the notice to be given the
adverse party have been noticed. (See ante, p. 99.) For a form of
the notice, see the Appendix.

Except where the statute dispenses with security to perfect the
appeal, or security has been waived by the respondent, it is absolutely
essential to render the appeal effectual for any purpose. It must be
given whether the appeal is from an order or from a judgment.
(Cowdin v. Teal, 67 N. Y. 581.) The court has no power to dispense
with it (Architectural lron Works v. City of Brooklyn, 85 N. Y.
652), nor to order that a sum deposited in lieu of an undertaking on
appeal to the General Term, shall take the place of the undertaking
or deposit required on appeal to the Court of Appeals. (2fclntyre
v. Strong, 2 Civ. Pro. R. 36.)

The requisites of an undertaking given to perfect an appeal have
been considered elsewhere. (See ante, p. 71.) It need not be
approved in the first instance (Code of Civil Pro. § 1835), and need
not be executed by the appellant (Id. §§ 811, 1334); but it must be
executed by at least two sureties; must specify the residence of
each of them (Id. § 13834); must be joint and several in form (Id.
§ 812); must be duly acknowledged and certified (Id. § 810); and
must be accompanied with the affidavit of each surety subjoined
thereto to the effect that he is a resident of, and a householder or
freeholder within, the State and is worth twice the sum specified in
the undertaking, over all the debts and liabilities which he owes or
has incurred, and exclusive of property exempt by law from levy
and sale under execution. (Id. § 812.)

For a form of the undertaking, see Appendix.
Staying THE Ex«ovtTion. Q51

 

The nature of the security to stay execution.

 

SECTION VI.

Sraying THE EXEourTion of THE JUDGMENT OR OrpeR APPEALED
FROM.

When execution stayed by the notice of appeal.—As a gen-
eral rule, an appellant desiring to stay the execution of a judgment
or order until the determination of his appeal 'therefrom, must fur-
nish the security required by the statute to effect a stay, or, if there
are no statutory provisions upon the subject, must obtain an order
directing the stay. (See ante, p. 75.)

There are exceptions to this rule. Upon an appeal taken by the
people of the State, or by a State officer, or by a board of State
officers, the service of the notice of appeal perfects the appeal, and
stays the execution of the judgment or order appealed from, without
an undertaking or other security. (Code of Civil Pro. § 1313.)
Upon an appeal by a municipal corporation, the service of the notice
of appeal has the same effect, unless the court in or from which the
appeal is taken, requires security to be given. (Id. § 1314.) No
security is required upon an appeal from an award by the Board of
Claims (Laws of 1883, chap. 205, § 11), or an appeal by the
receiver of an insolvent State bank from the determination of the
General Term confirming the apportionment of the debts and lia-
bilities of the corporation ainong its stockholders (Laws of 1882,
chap. 409, § 152); and where the appellant is an executor, adminis-
trator, trustee, or other person acting in another’s right, security to
stay the execution of the judgment or order appealed from, may be
dispensed with, or limited by the court in or from which the appeal
is taken, by an order made upon notice to the respondent. (Code of
Civil Pro. § 1312. See ante, p. 93.)

The nature of the security required to stay execution,
depends upon the character of the judgment or order from which
the appeal is taken. It must be in the form of a written undertak-
ing where the appeal is taken from a judgment for a sum of money,
or from a judgment or order directing the payment of a sum of
money (Code of Civil Pro. § 1327); or from a judgment for the
recovery of a chattel (Id. § 1329) ; or from a judgment which enti-
252 New Trtats axnp Apprats.

 

The form and contents of the undertaking,

 

tles the respondent to the immediate possession of real property, or
from a judgment or order directing the sale or the delivery of pos-
session of real property. (Id. § 1331.) If the appeal is taken from
a judgment or order directing the assignment or delivery of a docn-
ment, or of personal property, the appellant has his election cither
to give the undertaking required to stay the execution of a judgment
for the recovery of a chattel, or to bring the thing directed to be
assigned or delivered into the court below, or to place it in the ens-
tody of an officer or receiver designated by that court. (Id. § 1328.)
If the appeal is taken from a judgment or order directing the exe-
cution of a conveyance, or other instrument, it does not stay the
execution of the judgment or order until the instrument is executed
and deposited with the clerk with whom the judgment or order is
entered, to abide the direction of the appellate court. (Id. § 1330.)
Where the appeal is taken from a judgment or order affirming a
judgment or order, the judgment or order of aflirmance is to be con-
sidered, for the purpose of determining the security required to stay
its execution, as being of the same effect as the judgment or order.
affirmed. (See Id. § 1332.)

Where an appeal is taken to the Court of Appeals from an order
of the General Term, granting a peremptory mandamus, made upon:
an original application, or from a final order made upon an alterna-
tive mandamus granted at the General. Term, the only mode of
obtaining a stay of the execution of the order appealed from, is by
procuring an order of the same General Term, directing a stay upon
such terms as to security or otherwise as justice requires. (Code
of Civil Pro. § 2087.) Soa final order made by the General Term
in a proceeding commenced by a writ of prohibition, can be stayed
upon appeal only by the order of the same General Term, made
upon such terms as to security or otherwise as justice requires. (Id.:
§ 2101.)

The form and contents of the undertaking required to stay
the execution of a judgment or order on appeal to the Court of
Appeals in any of the cases above specified, have been elsewhere’
noticed. (See ante, pp. 75-79.) The undertaking need’ not be
executed by the appellant (Code of Civil Pro. § 811), nor need it be
approved in the first instance. (Id. § 1335.) But it must be’
executed by at least two sureties; must specify the residence of
each surety therein; must be joint and several in form; must be
Staring THE Exxrcurion. 253

 

Limiting the amount of security.

 

accompanied by the ordinary affidavits as to residence and property
qualifications of the sureties (Id. § 812); and must be to the effect
prescribed by the statute to stay the execution of a judgment or
order of the nature of the one from which the appeal is taken.
(Id. §§ 1827-1332.)

If two or more undertakings are required by the statute to
perfeet the appeal and stay the execution, they may be contained in
the sane instrument or in. different instruments at the option of the
appellant. (Id. § 1334.)

The ordinary forms of undertakings given to stay execution on
appeal to the Court of Appeals will be found in the Appendix.

Filing undertaking and serving copy.—The undertaking
given to stay execution must be filed with the clerk with whom the
judgment or order appealed from is entered (Code of Civil Pro.
§ 1307), and a copy of the undertaking, with a notice showing where
it is filed, must be served upon the attorney for the adverse party
with the notice of appeal, or before the expiration of the time to
appeal. (Id. 1834.) If the appeal is from a judgment or order
rendered or made by the General Term of the Common Pleas on an
appeal taken thereto from the City Court of New York, the
undertaking will be filed with the clerk of the latter court. (Id.
§ 8195.)

 

Limiting the amount of security.—Where an appeal is
taken to the Court of Appeals, the court below may in its discretion
make an order, on notice to the respondent, dispensing with or
limiting the security required to stay the execution of the judgment
or order appealed from, as follows:

1. Where the appellant is an executor, administrator, trustee, or
other person acting in another’s right, the seeurity may be dispensed
with or limited in the discretion of the court.

2. The aggregate sum in which one or more undertakings are
required to be given may be limited to not less than fifty thousand
dollars where it would otherwise exceed that sum. (Code of Civil
Pro. § 1312.)

The application ean only be made to the court below. It cannot
be made to the Court of Appeals. (ills v. Peekskill Savings Bank,
95 N. Y. 675.) The practice on the application has been noticed
elsewhere. (See ante, p. 93.)
254 New Triats AnD APPEALS.

 

Transmission to the Appellate Court.

 

SECTION VII.

Corrroting Derrots In Pretiminary PRoceepine.

Where the appellant, seasonably and in good faith, has served a
notice of appeal either upon the clerk or upon the adverse party,
or his attorney, but through mistake, inadvertence, or excusable
neglect, has omitted to serve it upon the other, or to do any other
act necessary to perfect the appeal, or to stay the execution of the
judgment or order appealed from, he should apply to the appellate
court or to the court below, upon an affidavit setting forth the facts
for an order permitting the omission to be supplied, or an amend-
ment to be made, as the ease requires. The application is addressed
to the discretion of the court, and if granted such, terms may be
imposed as justice requires. (See Code of Civil Pro. § 1803.)

How far defects in the papers or proceedings to take and perfect
an appeal or to stay execution of the judgment or order appealed
from may be cured under the power conferred by the section cited
and the general provisions of the Code relating to amendments, has
been sufficiently noticed. (See anie, p. 116.)

ARTICLE III.

PROCEEDINGS BY THE APPELLANT AFTER APPEAL PERFECTED
AND BEFORE ARGUMENT.

SECTION I.
TRANSMISSION OF THE RETURN To THE APPELLATE Court.

Within twenty days after the appeal to the Court of Appeals has
been perfected, the appellant must cause the papers upon which the
appeal is to be heard to be transmitted to the appellate conrt by the
clerk upon whom the notice of appeal was served, and to be filed by
the clerk of the appellate court. (Code of Civil Pro. § 1315;
Rule 2, Ct. App. See ante, p. 135.)

If the appeal is taken from a final judgment the papers to be
transmitted will consist of a certified copy of the notice of appeal,
TRANSMISSION TO THE APPELLATE Court. 255

 

Transmission to the Appellate Court.

 

of the judgment-roll, and of a case or notice of exceptions, if any,
tiled after the entry of judgment. If the appeal is taken from an
order or part of an order, the papers to be transmitted will consist of
a certified copy of the notice of appeal, of the order, and of the
papers upon which the order was founded.. (Code of Civil Pro.
§ 13815; Rule 1, Ct. App.) If the appeal is from a judgment
rendered at the General Term of the Court below upon a verdict
subject to the opinion of the court, a case containing a concise state-
ment of the facts, of the questions of law arising thereupon, and of
the determination of those questions by the General Term, must be
prepared and settled by or under the direction of the court below,
and annexed to the judgment-roll, and a certified copy of this case
must be transmitted to the Court of Appeals instead of the case
upon which the judgment below was rendered. The court below,
or a judge thereof, may extend the time limited by law within
which the papers must be transmitted to the Court of Appeals for
the purpose of enabling the appellant to procure the case to be pre-
pared and settled. (Id. § 1889.)

Tn all cases the return must be certified by the clerk, and the
parties cannot dispense with the certificate by stipulating that the
papers returned are copies. (Dow v. Darragh, 92 N. Y. 537.) The
papers are to be transmitted by the clerk upon whom the notice of
appeal was served. (Code of Civil Pro. § 1315); and where the
appeal is from a judgment or order of the General Term of the
Common Pleas upon an appeal taken thereto from the City Court of
New York, the papers will be transmitted by the clerk of the latter
court. (Id. § 8195.)

Although the return is to be made by the clerk, it is the duty of
the appellant’s attorney to see to it that the papers are transmitted
to and filed with the clerk of the Court of Appeals within twenty
days after the appeal was perfected, or to procure an order extend-
ing the time to prepare and file the return, if for any reason an
extension is necessary. To merely request the clerk to make the
return is not the exercise of that diligence which the law requires
of the attorney in that particular. The act which perfects the
appeal, and sets running the time limited for filing the return, is not
necessarily within the knowledge of the clerk, and therefore he
should be informed when the return must be filed. The clerk is
entitled to charge five cents a folio for the return (Chambers v.
Appleton, 15 Jones & Sp. 524; Code of Civil Pro. § 3301." Sce
256 New Triats anp APPEALS.

 

Contents of the appeal-book.

Townsend v. Nebenzahl, 2 McCarty’s Civ. Pro. R. 342, n.), and
the postage necessary to the transmission of the return by mail,
or other expense of transmission (Code of Civil Pro. § 3291), and
until these fees and expenses are paid or tendered, the clerk is
under no obligation to transmit the return. (Id. § 3292.) The
clerk of the Court of Appeals is also entitled to a fee of fifty cents
for filing the notice of appeal to that court and all the other papers
transmitted therewith. (Id. § 8300.) After the attorney for the
appellant has requested the travsmission of the return and paid or
tendered the statutory fees, he may then rely upon the presumption
that the clerk will perform his official duty. (See Spoore v. Fan-
nan, 16 N. Y. 620.)

If the return made by the clerk is defective, the appellant
should apply to one of the judges of the Court of Appeals, upon an
affidavit specifying the defect, for an order that the clerk make a
further return without delay. (Rule 3, Ct. App.) The power to
amend a return has been considered. (See ante, p. 165.)

SECTION II.
Tur APPEAL-BooK oR Case.

Contents of the appeal-book.—Having perfected his appeal,
and taken the necessary steps to procure the transmission of the
return to the appellate court, the appellant should proceed to make
a case, if the cause isa calendar cause, which will consist of a copy
of the return of the clerk, and the reasons of the court below for its
judgment, or an affidavit that the same cannot be procured, together
with an index to the pleadings, exhibits, depositions and other prin-
cipal matters. Every opinion in the cause at Special Term, relating
to the questions involved in the appeal, must be inserted in the case.
(See Rule 5, Ct. App.)

This collection of papers is called indiscriminately the “ case”
and the “appeal-book,” though, as it usually embraces the ‘“ case ”
upon which the appeal was heard at the General Term as welt as
other matters not included therein, the term “appeal-book ” seems
preferable.

As a general rule, no new case is made and settled upon the
appeal to the Court of Appeals, and the appeal is then heard npon
Tue APPEAL-BooK oR CASE. 257

 

Serving printed copies of the appeal-book.

 

the case presented at the General Term. There is an exception,
however, where the appeal is from a judgment rendered at General
Term upon a verdict subject to the opinion of the court (See ante,
p- 146), and also where the case presented to the court below contains
amass of matter, reviewable in that court, but which-can have no
bearing upon the questions to be reviewed by the Court of Appeals.
(See ante, p. 147.)

If for any reason it becomes necessary to make and settle, or to
resettle a case upon an appeai taken to the Court of Appeals, the
practice elsewhere pointed out should be followed. (See ante,
pp. 189-152.)

Printing the case or appeal-book.—The rules of the Court
of Appeals require that the case or appeal-book and all other papers
furnished to the court in calendar causes shall be printed on white
writing paper with a margin on the outer edge of the leaf.not less
than one and a half inches wide ; that the printed page, exclusive of
any marginal note or reference, shall be seven inches long and three
anda half inches wide; and that the folio, numbering from the
commencement to the end of the case, shall be printed on the outer
margin of the page. Small pica, solid, is the smallest letter and
the most compact mode of composition which is allowed. (Rule 6.)

Where the appeal is heard as a motion under section 192 of the
Code of Civil Procedure, all papers used in the court below upon
which the order appealed from was founded, must be printed as in
calendar causes. (See Rule 8, Ct. App.)

The number of copies of the appeal-book which the appellant
will require, will depend somewhat upon circumstances. At least
nineteen copies, besides those needed by the appellant for his own
use, are absolutely indispensable.

 

Serving printed copies of the appeal-book.— Within forty
days after the appeal is perfected, the appellant must serve three
printed copies of the case on the attorney for the adverse party.
(Rule 7, Ct. App.) The forty days commence to run from the time
the undertaking to perfect the appeal was given, and a copy thereof,
with notice of the filing, was served upon the adverse party (See
Code of Civil Pro. § 1326); or, if a deposit was made in lieu of an
undertaking, from the time of making the deposit and the service
upon the Benet party of a notice that it had been made (Id. §
258 New Triats anp APPEALS.

 

Making, printing, and serving points.

 

1306), or, where no security is required to perfect the appeal, from
the time of the service of the notice of appeal. (Id. §§ 1313,
1314.) The fact that the respondent has excepted to the sureties
in the undertaking given to perfect the appeal, and that the sureties
are required to appear and justify, does not affect the duty of the
appellant to serve printed copies of the case within forty days after
the appeal was perfected by the giving of the undertaking and ser-
vice of a copy and notice of filing. (See Wade v. De Leyer, 63
N. Y. 318.) If for any reason the appellant is unable to make the
service within the time limited, he may obtain an order enlarging
the time from the appellate court or from any judge thereof. (See
Rule 16, Ct. App.)

Sixteen printed copies of the case will be required for delivery
to the judges and the clerk upon the argument, as will be noticed
hereafter. (See Rule 8, Ct. App.)

SECTION III.
Maxine, Printina, anp Survine Poms.

Having made and printed the case or appeal-book, the appellant
should proceed to prepare his points, which should present in a sepa-
rate form each exception upon which the appellant relies, a terse
statement of the ground upon which he claims to have them sus-
tained, and a reference to the authorities supporting the claim.
(See ante, p. 153.) The points must be printed in the manner pre-
scribed by the rules (See Rules 6 and 8, Ct. App.), and the appellant
must state thereon, in a separate form, the leading facts which he
deems established, with a reference to the folios where the evidence
of such facts may be found. (Rule 9, Ct. App.)

At least nineteen printed copies of his points will be needed by
the appellant for delivery to the court, to the clerk, and to the
adverse party, besides the number which he may require for his own
convenience. No service of points upon the adverse party need be
made before argument. (See Rule 8, Ct. App.)
t

Practne Cause on CALENDAR. 959

 

Serving and filing a notice of argument.

 

SECTION IV.

Puactna tHe CavsE oN THE CALENDAR AND BRINGING IT TO A
Hearina.

Serving and filing a notice of argument.—An appeal is
brought to a hearing in the Court of Appeals by serving a notice of
argument upon the attorney for the adverse party, and by filing it,
with due proof or admission of such service, with the clerk of the
appellate court. (See Rule 22, Ct. App.) Notes of issue are not
used, and need not accompany the notice of argument.

Appeals not entitled to be heard as motions, should be noticed’
for the next term of court. The time and place of holding the term
is fixed by the judges (See Code of Civil Pro. § 196), and notice
of the appointment given by publication. The term usually com-
mences in the month of January, and continues, with brief recesses
or adjournments, into the following December. A new calendar is
ordinarily made up for the January term, which stands as the calen-
dar for the entire year. The court, by a formal order published
through the press, directs when a new calendar shall be made, and
appoints a day on or before which notices of argument must be
filed with the clerk. Service of the notice of argument must be
made upon the adverse party before the time so fixed, as the clerk
is directed not to enter on the calendar any cause in which proof of
the service of such notice is not filed with‘him. (See Rule 22, Ct.
App.) Under no circumstances will a cause be placed upon the
calendar until the return is filed with the clerk of the appellate
court, and all notices of argument filed before the return are worth-
less. No notice of argument should be forwarded to the clerk to be
filed, until the court has formally ordered a new calendar to be
made up, nor should the filing of the notice be delayed beyond the
time fixed therefor by such order.

When the calendar has once been made up, no appeal from a
judgment in a civil case can be added to it without a formal order
of the court. To obtain this order an application must be made to
the court upon a regular motion day, and extraordinary grounds
must be disclosed why the order should be granted or it will be
denied.
260 New Trias anp APPEALS.

 

Bringing on the appeal as a motion—Setting down cause for a day certain,

 

Bringing on the appeal as a motion.—An appeal from an
order made in-an action, affecting a substantial right, and not resting
in discretion, which either strikes out a pleading or apart of a plead-
ing, or decides an interlocutory application or a question of practice,
or determines a statutory provision of the State to be unconstitu-
tional, may be noticed for hearing on a motion day and heard as a
motion. (Code of Civil Pro. § 192; Rule 20, Ct. App.) Such
appeals can at any time be added to the calendar after the return is
filed, by a notice of argument and proof of service, or by stipulation
filed with the clerk. The notice of argument should be served
upon the adverse party at least eight days before the day fixed for
the argument, should be drawn for a motion day, and should
distinctly state that the cause is a motion.

A calendar of this class of appeals is prepared for the first
Tuesday of the term and for every second Tuesday thereafter.
The causes are put on the calendar in the order in which the
returns are filed; but to entitle any cause to go on this calendar,
the notice of argument, with proof or admission of service upon the
adverse party, must be filed with the clerk on or before the Saturday
preceding the motion day on which the case is intended to be
moved.

 

Preferred causes.—A party claiming a preference of a cause
on an appeal to the Court of Appeals, must so state in his notice of
argument to the opposite party and to the clerk; and he must also
state the ground of such preference so as to show to which class of
preferred causes the appeal belongs, and in appeals from orders, the
general character of the order appealed from. (Rule 20, Ct. App. ;
Taylor v. Wing, 83 N. Y. 527.) In certain cases, a party claiming
aright to a preference must apply, upon notice to the adverse party,
to the court or a judge thereof, for an order preferring the cause,
and must serve a copy of the order with or before the notice of
argument. (Code of Civil Pro. § 798. See Bartlett v. Musliner,
92 N. Y. 646; and see ante, p. 159.)

The order in which causes are entitled to preference upon the
calendar, and the proceedings to secure such preference, have been
noticed elsewhere. (See ante, p. 159.)

Setting down cause for a day certain.—The calendar made
up by the clerk for the term determines the order in which causes
Practing Cause on CALENDAR. 261

 

Exchanging causes.

 

will be called unless by some act of the parties this order is changed.
Each day a ealendar of eight causes is made up for the succeeding
day from the general calendar. Only such causes as are on the day
calendar are called on that day, but after such call, canses ready on
both sides may be heard in their order. (See Rule 17, Ct. App.)
The attorneys for the respective parties are therefore able to foresee
with some degree of certainty the date upon which their cause may
be reached, and if such day will be mutually inconvenient, to
stipulate to set the cause down for a day certain. No cause can be
reserved by stipulation after it has been placed on the day calendar,
but it may be so reserved at any time previous. By stipulating to set
the cause down fora day certain the parties cannot cause it to be
put on the day calendar before it is reached on the call of the gen-
eral calendar ; but they ean prevent its being put on the day calendar
before the time fixed by the stipulation. If the parties have filed a
stipulation setting the cause down for a certain day, and the day
calendar for that day is filled with causes having priority, the clerk
will place it on the first day calendar thereafter on which it can be
put in its order of priority. If the day fixed by the stipulation falls
within a recess, or during the adjournment of the court, and the
number of the cause on the general calendar has been passed, the
clerk will not place it upon the day calendar until a new stipulation
has been filed; but if the number of the cause on the general
calendar had not been reached at the time of the recess or adjourn-
ment, the cause will be placed upon the day calendar in its order of
priority with reference to the general calendar. If a new calendar
is made up before the cause is reached, all stipulations made with
reference to the old calendar go for nothing.

‘Causes set down for a day certain by stipulation are entitled to
priority on the day calendar, as between themselves, according to the
date of the filing of the stipulations with the clerk, and follow next
in order the undisposed causes of the calendar for the day previous.

For a form of stipulation, see Appendix.

Exchanging causes.— Causes upon the calendar may be
exchanged one for another, of course, on filing with the clerk in
court a note of the proposed exchange, with the numbers of the
causes, signed by the respective attorneys or counsel. Upon all the
subsequent calendars, each of the said causes will take the place due
to the date of the filing of the return in the other. (Rule 17, Ct.
262 New Triats ano APPEALS.

 

Striking cause from the calendar.

 

App.) The clerk is required to keep a memorandum of the
exchanged causes, and to place them on all subsequent calendars in
accordance with the rule above cited. (Rule 18, Ct. App.)

For a form of the note of exchange, see Appendix.

Striking cause from the calendar.—Any cause except the
first eight upon the calendar, may be struck therefrom before it is
reached, of course, and without prejudice, by the clerk in court on
consent of the parties who placed the same upon the calendar, at any
time during the first week of the term. (Rule 17, Ct. App.)

SECTION V.
Restoring A Dismissep APPEAL.

It sometimes occurs, that through the inadvertence or excusable
neglect of the appellant’s attorney, an ex parte order has been
entered dismissing the appeal, as for example, where the appellant
has failed to cause the proper return to be made and filed, within
twenty days after the perfecting of the appeal with the clerk of the
appellate court (See Rule 2, Ct. App.), or has failed to serve printed
copies of the case upon the attorney for the adverse party within
forty days after the appeal is perfected. (Rule 7, Ct. App.) In
such cases the appellant should proceed promptly to obtain an order
vacating the order of dismissal, and reinstating the appeal.

Before the amendment of Rule 2 of the Court of Appeals, the
respondent was at liberty to dismiss the appeal if the return was not
filed in twenty days after the perfecting of the appeal. Under the
old rule, applications to the court to be let in to file the return after
the dismissal of the appeal became very frequent, and it became the
established practice to set aside the dismissal, and reinstate the
appeal without any special excuse, if it appeared that the appeal was
brought in good faith. To render these applications unnecessary,
an amendment was made depriving the rule of its summary char-
acter, by requiring the respondent to give ten days’ notice that he
required the return to be filed, before he could dismiss the appeal for
want of areturn. An appeal dismissed for this cause, may be rein-
stated under the present rule upon a proper application made by the
appellant ; but to excuse his default, unless the right of appeal
Restoring a Dismissep APPEAL. 263

 

Restoring a dismissed appeal.

 

would be lost by retaining the default, a clear case of diligence must
be made out, or some accident or unforeseen state of things must be
shown which has prevented the appellant from procuring the return
to be made, or an extension of time. (Spoor v. Foreman, 16 N. Y.
620.) An application for this relief shonld therefore be based upon
an affidavit, not only showing that the appeal was brought in good
faith, but also stating what steps the appellant has taken to procure
the return, and the circumstances which prevented him from procur-
ing it, or from obtaining an order extending the time to file it. If
it appears that the omission did not arise from any fault of the
appellant’s attorney, and that he has used due diligence to procure
the return, the motion will be granted. As there is no return and
no remittitur, an order vacating the order dismissing the appeal will
leave the parties in the same position as if the order had not been
entered, and is all that is ordinarily required. (Thompson v. Blan-
chard, 2 N. Y. 561.)

The procedings to reinstate an appeal dismissed because of the
failure of the appellant to serve printed copies of the case on the
attorney for the adverse party within forty days after the appeal
was perfected, may be somewhat more complicated than upon the
application to reinstate an appeal dismissed for failure to file the
return. If the remittitur has been sent down to the court below,
judgment entered thereon, and execution issued, the motion to rein-
state the appeal will not be entertained. It seems that in such case
the appellant should move in the court below to have the proceed-
ings in that court under the remittitur vacated, and the remittitur
returned to the Court of Appeals, to the end that he may then make
his motion in the latter court for relief. (Jones v. Anderson, 71 N.
Y. 599.) Having succeeded upon this preliminary application, he
should then apply to the Court of Appeals upon any regular motion
day (See Rule 13, Ct. of App.) for an order vacating the order
dismissing the appeal. This motion should be made upon the
usual notice. If the order was entered in a case not authorized by
the rule, as for example, where an imperfect case has been served
within the time limited (See Bowers v. Tallmadge, 23 N. Y. 166;
Bliss v. Hoggson, 84 N. Y. 667), the motion may be based upon
the order sought to be vacated, and upon an affidavit showing due
service of the requisite printed copies of the case. If the proceed-
ings on the part of the respondent in entering the order were regu-
lar, so that the only question is whether the appellant should have
264 New Trrats anp Apprats.

 

Exceptions to the sureties.

 

relief as a matter of favor, the motion should be based upon papers
upon which the appeal is founded, and upon an aftidavit showing
good faith and excusing the default. If the proceeding on the part
of the respondent were regular, the default will not be opened as a
matter of favor unless there is some reason to think that the judg-
ment obtained is not in strict conformity with the real merits and
equity of the case. (Keuka Navigation Co. v. Holmes, 98 N. Y.
655.) The court, in determining whether the appellant should have
relief, will look somewhat into the merits of the appeal; and if it
appears that the court would have no jurisdiction to review the
‘Judgment or order appealed from, in case the appeal should be rein-
stated, the motion will be denied. (Wade v. De Leyer, 63 N. Y
818.) So ifno merits are shown, and the only excuse for the fail-
ure of the appellant to serve the case in time, is that the return had
not been made and filed, the order must be denied. (Sage v. Vol-
kening, 46 N. Y.448.) But if the matter is appealable, the appeal
was taken in good faith, the default is satisfactorily excused, and it
does not appear that the respondent has been delayed or inconven-
ienced by the omission to serve copies of the.case as required by the
rule, the appeal will be reinstated upon terms. (Waterman v.
Whitney, T How. 407.)

ARTICLE IV.

PROCEEDINGS BY THE RESPONDENT BETWEEN SERVICE OF THE
NOTICE OF APPEAL AND ARGUMENT.

SECTION I.
ExcrEptions To THE SURETIES IN THE PLarntirr’s UNDERTAKING,

Where the appellant has proceeded regularly to take his appeal,
and has given an undertaking to perfect it, or to stay the execution
of the judgment or order appealed from, or for both purposes, one
of the first duties of the respondent is to satisfy himself that the
sureties in the undertaking or undertakings so given are responsible
persons. If he has any doubt as to theirsolvency he should take
the initial steps to cause them to appear before the proper officer
and be examined as to their property. To this end he should serve
upon the attorney for the appellant a writtcn notice that he excepts
Exceptions to THE SURETIES. 265

 

Exceptions to the Sureties.

 

to the sufficiency of the sureties. This must be done within four
days after the service upon him of a copy of the undertaking with
notice of its filing. (Code of Civil Pro. § 1335.) Fora form of
this notice of exception, see Appendix. The appellant, within ten
days after the service upon him of this notice, must cause the surc-
ties, or other sureties in a new undertaking to the same effect, to
justify before a judge of the court below ora county judge, and
obtain an allowance of the sureties from that officer, or he will lose
all benefit of the undertaking, and the respondent may proceed as if
no undertaking had been given. The respondent is entitled to at
least five days’ notice of the justification, or double that time if the
service is by mail. If the appellant has not sufficient time to give
regular notice by mail he must either cause the notice to be served
personally, or must obtain a judge’s order enlarging the time. (See
Code of Civil Pro. §§ 781, 1835; Dresser v. Brooks, 5 How. 75.)
For a form of a notice of justification, see Appendix.

If this notice is regularly and seasonably given, the respondent’s
attorney should appear before the judge at the time and place speci-
fied in the notice to examine the proposed sureties as to their prop-
erty qualifications. The proceedings upon the justification have
been noticed. (See ante, p. 101.) If the respondent fails to appear
before the officer at the time and place specified, his omission
amounts to a waiver of his exception to the sureties, although they
also failed to attend. (Ballard v. Ballard, 18 N. Y.491.) But if
the notice of justification was not served in time upon the respon-
dent, a justification thereunder amounts to nothing, although the
respondent failed to attend. (Dresser v. Brooks, 5 How. 75.) If
the undertaking was given to perfect the appeal, and the sureties
fail to justify, the respondent may proceed to enforce his judgment
or order as if no appeal had been taken therefrom. If the under-
taking. was given to stay execution of the judgment or order appealed
from, the respondent may proceed to enforce it pending the appeal
as if no undertaking to stay its execution had beengiven. (d/anning
v. Gould, 90 N. Y. 476 ; 64 How. 429.) I£ the sureties justify, and
the judge finds them sufficient, he indorses his allowance upon the
undertaking or a copy thereof, and notice of the allowance will be
served upon the attorney for the exceptant. (Code of Civil Pro.
§ 1335.) For a form of this notice, see Appendix.
266 New Triats anp APPEALS.

 

Failure to file the return.

 

SECTION II.
Dismissan or APPEAL For Faiture To Fire THE Return.

If the appellant fails to cause the proper return to be made and
filed with the clerk of the Court of Appeals within twenty days
after the appeal is perfected, the respondent may, by notice in writ-
ing, require the return to be filed within ten days after the service
of the notice, and if the return is not filed in pursuance of such
notice, the appellant will be deemed to have waived the appeal.
(Rule 2, Ct. App.) For a form of the notice, see Appendix. The
respondent should thereupon proceed to formally dismiss the appeal.
For this purpose he should prepare an affidavit containing a state-
ment of facts proving that the appeal was perfected, and that a
notice in writing requiring the appellant to file the return within
ten days after service of such notice was served upon the attorney
for the appellant. (See Rule 2, Ct. App.) The affidavit should
allege the service of the notice of appeal, and, if security is required
to perfect it, the giving of the statutory undertaking. Enough
must be stated to show that an appeal is pending, as otherwise there
is nothing to dismiss. (See Benedict, etc., Manuf. Co. v. Thayer, 82
N. Y. 610; Raymond v. Richmond, 76 N. Y. 106). The respond-
ent should also procure the certificate of the clerk of the Court of
Appeals that no return has been filed. Upon these papers the
respondent may enter an order with the clerk dismissing the appeal
for want of prosecution, with costs ; and the court below may there-
upon proceed as though there had been noappeal. (Rule 2, Ct.
App.) For a form of this order, see Appendix.

A certified copy of this order should .be entered with the clerk
of the court below, as the authority for further proceedings in that
court. It seems that a remittitur is not proper in this case, as there
is norecord to remit. (See Rule 14, Ct. App.; Thompson v. Blunch-
ard, 2N. Y. 561; 4 How. 210, 211, note; 2 Till. & Shear. Pr. 962.
But see Code of Civil Pro. § 194.)

The failure of the respondent to avail himself of the neglect of
the appellant’s attorney to procure the return of the clerk within
twenty days after the appeal was perfected, until after a return has
been filed, is a waiver of all objection on that account, especially if
Faiture To SERVE THE OAsE. 267

 

Failure to serve the case.

 

he has himself, after the return was made, noticed the appeal for
argument. (Beecher v. Conradt, 11 How. 181.)

SECTION III.
DismissaAL oF THE APPEAL FOR FAILURE TO SERVE THE CASE.

If the appellant fails to serve three printed copies of the case on
the attorney of the respondent within forty days after the appeal is
perfected (See ante, p. 257), the respondent may, by notice in
writing, require the service of such copies within ten days after ser-
vice of the notice, and if the copies are not served in pursuance of
such notice, the appellant will be deemed to have waived the
appeal. The respondent may then, upon an affidavit proving the
default and the service of such notice, enter an order with the clerk
dismissing the appeal for want of prosecution, with costs, and the
court below may thereupon proceed as though there had been no
appeal. (Rule 7, Ct. App.) For a form of the notice and order, see
Appendix.

To entitle the respondent to pursue this remedy, the appeal to
the Court of Appeals must have been perfected, or otherwise there
is no appeal to dismiss (Benedict, etc., Manuf. Co. v. Thayer, 82
N. Y. 610; Raymond v. Richmond, 76 N. Y. 106), and there must
be a total failure to serve a case. (Bowers v. Tallmadge, 23 N. Y.
166; Bliss v. Hoggson, 84 N. Y. 667.) The entry of a common
order dismissing the appeal is not the proper remedy where a case
has been served though imperfect and omissive ; nor is it the cor-
rect practice for the respondent’s attorney to first return the
defective or omissive case, and upon a failure to serve another, to
enter an order dismissing the appeal. (Id.) The remedy of the
respondent, in such case, is tomove upon notice to have the case
corrected, or that corrected copies be served, and that, in default of
such correction, the appeal be dismissed. (Id.)

The appellant may have failed to cause the return to be filed
with the clerk of the Appellate Court, as well as to serve copies of
the printed case ; and where this has occurred, the respondent may
proceed to dismiss the appeal upon either ground, or upon both
grounds. That the appellant has omitted to procure the filing of
ithe return is no excuse for not serving copics of the printed case.

(Sage v. Volkening, 46 N. Y. 448.)
268 New Triats anp APPEALS.

 

Motion to amend or correct the return.

 

If the return has been filed, and the respondent has. emtered an
order dismissing the appeal for failure to serve printed copies of the
case within the time limited by the rule, the order should be
remitted to the court below. (Code of Civil Pro. § 194.) A remit-
titur is proper in such case. (Dresser v. Brooks, 2 N. Y. 559; 4
How. 184. See Bliss v. Hoggson, 84 N.Y. 667.) The court
below may then proceed as though there had been noappeal. (Rule
7, Ct. App.) What these proceedings will be, must depend upon the
nature of the appeal.

SECTION IV.
Morton ror 4 Furraer Rerourn.

The printed copies of the case served upon the respondent’s
attorney will enable him to determine whether the return is defec-
tive in any particular. If any papers are omitted from the return
which should properly be included therein, and their absence may
prove prejudicial to the respondent, he should apply on notice for
an order directing a further return. (See Bowers v. Tallmadge, 23
N. Y. 166 ; 20 How. 518; Bliss v. Hoggson, 84 N. Y. 667.) The
rules of court provide, that if the return made by the clerk of the
court below shall be defective, either party may, on an affidavit
specifying the defect, apply to one of the judges of the Court of
Appeals for an order that the clerk make a further return without
delay. (Rule 3, Ct. App.) For the practice and the motion, see
ante, p. 170. Fora form of the order, see Appendix.

SECTION V.
Motion to AMEND or Correcr THE Retory.

Where the case served upon the respondent contains papers
which were not before the General Term, he should apply to the
court upon notice, for an order directing the correction of the
return, and requiring the appellant to make a case and serve copies
thercof, as required by the rules of the Court of Appeals. (Hobart
y. Hobart, 85 N. Y. 637.) The power of the court to correct the
return, and the proceeding to obtain an order to that effect, have
been noticed elsewhere.
Cross-APPEAL. 269

 

Cross-appeal.

 

Motions having for their object an amendment of the return are
ordinarily made by the appellant. The Code provides, that the court
to which a return is made by a subordinate court, may in its discre-
tion direct the return to be amended, in matter of form, either before
or after judgment. (Code of Civil Pro. § 725.)

SECTION VI.
Cross-APPEAL.

Where final judgment is taken, at a Special Term, or Trial Term,
or pursuant to the directions of a referee, after the affirmance, upon
an appeal to the General Term, of an interlocutory judgment ; or
after the refusal, by the General Term, of a new Trial, either upon
an application made, in the first instance, at the General Term, or
upon an appeal from an order of the Special Term, or of the judge,
before whom the issues, or questions of fact, were tried by a jury;
an appeal to the General Term from the final judgment brings up,
for review, only the proceedings to take the final judgment, or upon
which the final judgment was taken, including the hearing or trial
of the other issues in the action, if any. If an appeal is taken to
the Court of Appeals, from the determination of the General Term,
upon the appeal from the final judgment, the determination of the
General Term, affirming the interlocutory judgment or refusing the
new trial may, at the election of either party, be reviewed thereupon.
If the respondent elects to bring it up for review, he may make a
cross-appeal therefrom. (Code of Civil Pro. §-1350.)

In other cases, both parties may desire to appeal from different
portions of the same judgment or order of the General Term. In
such cases, the fact that one party has taken and perfected an appeal
will not preclude the other from also appealing within the time
limited by the statute. Cross-appeals are taken and perfected in the
ordinary manner.
270 New Trrats anp APPEALS.

 

Bringing on the argument.

 

SECTION VII.
Preparina AND Printine Ports.

Where the appellant has proceeded regularly in taking and per-
fecting his appeal, has filed the return, and served copies of the
printed case, the next step of the respondent is to prepare for argu-
ment by making and printing his points. This is necessary in
appeals heard as motions as well as in calendar causes. (Rule 8, Ct.
App.) The requirements of the rules of court as to the manner in
which points shall be made up and printed have been sufficiently
noticed. (See ante, p. 153.)

No service of printed copies of the points upon the attorney for
the appellant is required before the commencement of the argument.
(See Rule 8, Ct. App.)

SECTION VIII.
Bringing on THE ARGUMENT.

If the appellant neglects to notice the appeal for argument and
the respondent wishes to expedite the case, his remedy is to himself
notice it for argument and place it upon the calendar. The neglect
of the appellant is no ground for a motion to dismiss the appeal for
want of prosecution. (Wéchols v. MacLean, 98 N. Y. 458.) The
practice is the same as where an appeal is brought on for argument
by the appellant. The respondent should serve a notice of argu-
ment upon the attorney for the appellant, and file it with due
proof or admission of service with the clerk of the appellate court.
(See ante, p. 259.)

For form of notice of argument, see Appendix.
GENERAL PRACTICE. 971

 

Passed causes—The argument.

 

ARTICLE V.

PROCEEDINGS ON THE HEARING.

SECTION I.
GENERAL PRACTICE oN THE CALL OF THE CALENDAR.

Passed causes.—Eight causes only will be called on any day,
but after such call, causes ready on both sides will be heard in their
order. (Rule 17, Ct. App.) When a cause is called in its order on
the calendar, it must be either argued, submitted or passed. (Rule
21, Ct. App.) Any cause which is regularly called and passed,
without postponement by the court for good cause shown at the
time of the call, will be placed on all subsequent calendars as if the
return had been filed on the day when it was so passed. (Rule 17,
Ct. App.) A preferred cause, being once passed without reservation
will take its place on subsequent calendars without preference.
(Rule 20, Ct. App.)

Submission without argument.—Causes will not be received
npon submission until reached in the regular call of the calendar.
(Rule 12, Ct. App.) Ifthe respondent fails to appear, the appellant
may either argue or submit his case, and it will be determined on
the papers submitted by him. If both parties appear, either or both
may be heard orally, or submit the case on printed briefs. (Rule
21, Ct. App.)

 

The argument.— When the cause is called in its order on the
calendar, and is not submitted or passed, the counsel proceed to
argue it. At the commencement of the argument the counsel for
the appellant must furnish a printed copy of the case to each of the
judges, and must deliver nine other copies to the clerk. Each party
must at the same time furnish to each of the judges a printed copy
of the points on which he intends to rely, with a reference to the
authorities which he intends to cite; and must deliver nine other
copies to the clerk, and three copies to the counsel of the adverse
party. (Rule 8, Ct. App.) If the appeal is heard as a motion, the
272 New Triats anp APrEats.

 

Default,

 

appellant must furnish the court with the number of printed copies,
required by this rule in calendar causes, of all papers used in the
court below upon which the order appealed from was founded ; and
each party is also required to furnish the court with printed points
as in calendar causes. (Id.) The counsel for the appellant then
proceeds with his argument; the counsel for the respondent fol-
lows ; and the counsel for the appellant is heard in reply if his
time is not already consumed. In the argument of calendar
causes and motions only one counsel is heard on each side, unless
the court otherwise directs. (Rule 10, Ct. App.) In the argument
of a cause, not more than two hours can be occupied by each counsel,
except by the express permission of the court. In the argument of
an appeal from an order not more than twenty minutes can be occu-
pied by the appellant’s counsel, nor more than fifteen minutes by the
respondent’s counsel without express permission of the court.
(Rule 19, Ct. App.) The cause may be argued by one party, and
submitted on a printed brief by the other. (Rule 21, Ct. App.)
The court will not hear an extended discussion upon any mere
question of fact. (Rule 9, Ct. App.)

In the argument of the cause counsel should present every
material point appearing in the case, as an exception not raised
on the argument will be deemed abandoned. (Logers v. Laytin,

81 N. Y. 642.)

Default.—Judgment of reversal by default is not allowed on
appeal to the Court of Appeals. If the appellant fails to appear and
furnish the Court with the papers required, and argue or submit
his case, judgment of aftirmance by default will be ordered on motion
of the respondent. If the appellant only appears, he may either
argue or submit the case, and it will be determined on the ‘papers
submitted by him. When any cause is regularly called for argument,
and no other disposition is made of it, the appeal will be dismissed
without costs, and an order will be entered accordingly, which will
be absolute unless upon application made and good cause shown,
upon notice to the opposite party within ten days, if the court is in
session, and if not, on the first motion day of the next meeting, the
court revokes the order and restores the appeal. (Rule 21, Ct. App.)

If the decree or order is affirmed by default of the appellant,
the remittitur cannot be sent to the court below, unless the Court of
Appeals otherwise directs, until ten days after notice of aftirmance
Questions RrviEwasBte. 273

 

Question not passed upon by the General Term.

 

has been served on the attorney of the appellant. Service of the
notice must be proved to the clerk by affidavit or by the written
admission of the attorney on whom it was served. (Rule 15, Ct.
App.) The object of this rule is to give the appellant time to move
to open the default before the remittitur has been filed in the court
below, as a motion made afterward would be too late. (Latson v.
Wallace, 9 How. 334.)

ARTICLE VI.
QUESTIONS REVIEWABLE ON THE APPEAL.
SECTION I.
In GENERAL.

The general subject of the jurisdiction of the Court of Appeals
to entertain an appeal taken from the determination of an inferior
court or judicial body has been considered in the first article of this
chapter. What questions may be reviewed in the Court of Appeals
in a case where that court has jurisdiction to entertain an appeal for
any purpose will be here considered. What principles will govern
the court in deciding questions properly before it for review, will be
considered in the next article.

The Code provides generally that “an appeal to the Court of
Appeals from a final judgment, or from an order, granting or refus-
ing a new trial in anaction, or from a final order affecting a sub-
stantial right, made, either ina special proceeding, or upon a sum-
mary application after judgment in an action, brings up for review,
in that court, every question, affecting a substantial right, and not
resting in discretion, which was determined by the General Term
of the court below, in rendering the judgment or making the order,
from which the appeal is taken; exccpt that a question of fact,
arising upon conflicting evidence, cannot be determined upon such
appeal, unless where special provision for the determination thereof
is made by law.” (Code of Civil Pro. § 1337.)

What questions affect a substantial right, or rest in discretion,
have been elsewhere considered. (See ante, pp. 215, 221.)

Questions not passed upon by the General Term.—It will

be noticed that the appeal brings up for review questions deter-
18
274 New Trrats anp APpPEALs.

 

Questions not passed upon by the General Term.

 

mined by the General Term of the court below in rendering the
judgment, or making the order from which the appeal is taken (Code
of Civil Pro. § 1337), and that the Court of Appeals has jurisdiction
to review only actual determinations of the General Term. (Id.
§ 190. See ante, p. 198.) It is a general rule, that questions not
raised at the trial court which might have been then obviated by the
action of that court, or of the adverse party, will not be heard on
appeal as a ground of error. (See ante, p. 188.) It is not uncom-
mon for courts to pass over in silence exceptions not brought to their
notice by counsel. But there is no rule which prevents counsel from
urging, in an appellate court, a point distinctly made and presented
at the trial court, because it has not been made in an intermediate
appellate court. If the exception presents clear error, and one of
clear inateriality, which may have influenced the fate of the trial, an
appellant may bring it to notice on his finalappeal. (Cohn v. Gold-
man, 76 N. Y. 284.) An objection that the General Term had no
jurisdiction to hear and determine an appeal pending before it, may
be raised for the first time on appeal to the Court of Appeals.
(Matter of Larson, 96 N. Y. 381.)

So an objection which goes to the jurisdiction of a surrogate
over the subject-matter of a proceeding had before him, may be
raised for the first time in the Court of Appeals, and must be con-
sidered and disposed of when raised. (Jester v. Shepard, 92 N.Y.
251.) And generally, an objection to the jurisdiction of a State
court over the subject-matter of an action or proceeding, may be
raised and deterinined in the Court of Appeals, though not raised in
the trial court, and though not raised at or passed upon by the Gen-
eral Term. (Cook v. Whipple, 55 N. Y. 150, 157; Delafield v.
State of Illinois, 2 Hill, 159. But see Steers v. Liverpool, de,
Steamship Co., 57 N. Y.1.) But where no question as to the juris-
diction of the court has been taken below, and the statute creating
the court declares that the jurisdiction shall in all cases be presumed,
the appellate court will assume that jurisdiction existed, in the
absence of anything in the record showing that the existence of jur-
isdiction in the court below was an impossibility. (Bidwell v. Astor
Mut. Ins. Co., 16 N. Y. 263.)

The power to review a jurisdictional question, though not pre-
sented at the trial court or at the General Term, is exceptional. In
other cases the question must at least have been presented for adju-
dication to the subordinate court at the trial or at the General Term
Questions RrevizwaB.e. 275

 

Questions not passed upon by the General Term.

 

(See ante, p. 198), and this fact must be disclosed by the record.
An appellate court will not consider questions which can be pre-
sented only by an appeal from the decision of an inferior court,
unless the questionsare within therecord. (Hinman v. Stillwell, 34
Hun, 178.)

An objection that a complaint does not state facts sufficient to
constitute a cause of action, if not taken at the Special or General
Term, will not be considered on appeal to the Court of Appeals.
(Delaney v. Brett, 51 N. Y. 78.) But if the objection is raised at
General Term, though not taken at the trial, the determination of
the General Term may be reviewed by the Court of Appeals.
(Brookman v. Hamill, 43 N. Y. 554; 46 N. Y. 636.)

A question as to the constitutionality of a statute upon which an
action is founded (Delaney v. Brett, 51 N. Y.78; Vose v. Cock-
croft, 44 N. Y. 415); or as to a variance between the pleadings and
the proofs (Coates v. First Nat. Bank of Emporia, 91 N. Y.
20, 31), or whether the proofs, in an action in equity, show a per-
fect legal remedy, and are therefore a bar to the equitable relief
demanded (Powell v. Waldron, 89 N. Y. 328; Clarke v. Sawyer,
2 N.Y. 498; Trusscott v. King,6 N. Y.147; De Bussterre v.
Holladay, 55 How. 210); or whether the plaintiffs remedy
was in equity and not in law (Mich v. Rathbun, 61 N. Y.
579); or whether the complaint and proofs of a plaintiff defeated
in an action of tort were sufficient to have authorized a recovery
on contract (Salisbury v. Howe, 87 N. Y. 128; Lockwood v.
Quackenbush, 83 N. Y. 607); or whether an answer contained a
counter-claim admitted for want of a reply (Gordon v. Wat. Shoe &
Leather Bank, 74 N. Y. 467; Muldoon v. Blackwell, 84 N. Y.
646) ; will not be reviewed when raised for the first time upon an
appeal to the Court of Appeals. A party who has acquiesced in the
trial of an action upon a certain theory, or who has assumed upon
the trial the existence of certain facts, or that proof of certain facts
would establish a liability or a defense, will not be heard to assert
for the first time on appeal that there was error in adopting the
theory he had assisted in establishing as the law of the case, or in
treating as proven the facts he had assumed to exist. (See Vann v.
Rouse, 94 N. Y. 401, 407; Gernon v. Hoyt, 90 N. Y. 631, 633;
Wellington v. Morey, 90 N. Y. 656; Campbell v. Birch,60 N. Y.
214; Welson v. Rocke, 58 N. Y. 642; Hill v. Leermans, 17 Hun,
470; Paige v. Fazackerly, 36 Barb. 392.) ,
276 New Triats anp APPEALS.

 

Mere abstract questions not reviewed.

 

Questions not presented by exception.—Where a trial has
been had by a jury and a general verdict rendered, the Court of
Appeals can review the judgment entered thereon and grant a new
trial only for an error of law, and that error must be pointed out by
an exception taken at the proper time. (Standard Ow Co. v.
Amazon Ins. Co., 79 N. Y. 506; Oldfield v. New York & Harlem
Lf. PR. Co., 14. N. Y. 310; Fordham v. Hendrickson, 84 N.Y. 654;
Coe v. Raymond, 89 N. Y. 612.) Where the appeal is taken from
a judgment of the General Term affirming a judgment entered upon
the decision of the court or the report of a referee, and the case
contains no findings of fact and no exception to any legal conclusion,
no question will be presented to the Court of Appeals for review.
(Stratton v. Cornfield, 2 Keyes, 55 ; Smith v. Starr, 70 N. Y. 155;
Hart v. Wandle, 50 N. Y. 381.) But if the General Term has
materially modified the judgment entered upon the decision of the
court or report of the referee and affirmed the judgment as modified,
a party prejudiced by the modification, having no opportunity to
except thereto, may have a review of the correctness of the modifi-
cation on appeal to the Court of Appeals, although the case contains
no findings of fact or exceptions. (Hart v. Wandle, 50 N. Y. 381.)

If the only exception taken to the decision or report is the
general exception to all the findings and to each and every of them,
it will be insufficient to raise any specific question, and is practically
of no avail. (Ward v. Craig, 87 N. Y. 550; Newel v. Doty, 33
N. Y. 83; Wheeler v. Billings, 38 N. Y. 263.) So if the only
exception is a general exception to each and every conclusion of law
contained in a specified finding, and the finding specitied embraces
both matters of fact and matters of law without distinction, the
exception will be too general to be available. (Hepburn v. Mont-
gomery, 97 N. Y. 617.) Such exceptions are practically no excep-
tions, and are treated as nullities on appeal. But where an excep-
tion is first taken to a report or decision on the settlement of the
case, and the objection that the exceptions were taken too late is
raised for the first time on the argument in the Court of Appeals,
it will be deemed waived, and the questions raised by the exceptions
so taken will be there reviewed. (Ward v. Craig, 87 N. Y. 550.)

Mere abstract questions not reviewed.—The Court of
Appeals will not review and decide a mere abstract question, when
no practical result can follow its determination. If from any cause
Questions RrviEwABLe. O77

 

Appeal from a final judgment.

 

the question presented by the appeal has ceased to have any living
interest to the parties other than to determine which was right, and
no actual or practical relief can be granted to either party by any
judgment whieh the court might render thereon, the appeal will be
dismissed. (J’eople v. Common Council of Troy, 82 N. Y. 575.
See also People v. Phillips, 67 N. Y. 582; People v. salad 68
N. Y. 403; Grow v. Garlock, 29 Hun, 598.)

SECTION II.

Uron an APPEAL FROM A FINAL JUDGMENT, AFTER AFFIRMANCE OF
Aan Inrrrtocutory Jup@MENT, oR Dentat or A New Triat.

Where an appeal to the General Term from an interlocutory .
judgment has resulted in its,affirmance, and the parties have gone
back to the Special Term and completed such further proceedings
as were necessary to the entry of final judgment upon the whole
case, and final judgment has been entered, an appeal from this judg-
ment directly to the Court of Appeals will bring up for review only
the determination of the General Term, affirming the interlocutory
judgment. (Code of Civil Pro. § 1336; Laynor v. Raynor, 94 N.
Y. 248.) The proceedings between the decision of the appeal by
the General Term and the entry of judgment, will not be brought
up for review upon an appeal taken directly from the final judgment
to the Court of Appeals. To present these questions for review, an
appeal from the final judgment must be first taken to the General
Term, and if the General Term affirms the judgment, an appeal may
then be taken to the Court of Appeals, and a review had of all the
questions of law involved in the whole case, and raised by exceptions
seasonably taken. (Id. ; Code of Civil Pro. § 1350.)

So an appeal directly to the Court of Appeals from a final judg-
ment rendered in the court below, after a denial of a new trial by
the General Term, brings up for review only the determination of
the General Term refusing the new trial. (Code of Civil Pro.
§ 1336.) Ifa review of other questions is desired, the appeal from
the final judgment should be taken first to the General Term, and
then to the Court of Appeals. (Id. § 1350.)
278 New Triats anp ApPEAts.

 

Review of questions of fact,

 

SECTION III.
WaEN THE Revirw May INCLUDE Questions oF Fact.

In general.—Upon an appeal to the Court of Appeals from a
final judgment, or from an order granting or refusing a new trial in
an action, or from a final order affecting a substantial right made,
either in a special proceeding, or upon a summary application after
judgment in an action, a question of fact arising upon conflicting
evidence cannot be determined, unless where special provision for
the determination thereof is made by law. (Code of Civil Pro.
- § 1337.)

The section above cited accomplished considerable change in the
prior law. ‘Under it, unless special provision authorizing it can be
‘found in the Jaw, there can be no review in the Court of Appeals of
questions of fact depending upon conflicting evidence in any case.
(Matter of Ross, 87 N. Y. 514; Van Tuyl v. Westchester Fire Ins.
Co., 55 N. Y. 657; Hynes v. Mc Dermott, 91 N. Y. 451; People v.
French, 92 N. ¥. 306.) &U web Wafe Was

Where the trial was by the court or by a referee.—Upon
an appeal to the Court of Appeals from a judgment reversing a
judgment entered upon a referee’s report, or a decision of the court
upon a trial without a jury, or from an order granting a new trial
upon such a reversal, it must be presumed that the judgment was
not reversed or the new trial granted upon a question of fact unless
the contrary clearly appears in the body of the judgment or order
appealed from. (Code of Civil Pro. § 1338.) The court cannot
look into the opinion to see upon what ground the reversal was
based. (Van Tassel v. Wood, 76 N. Y. 614; Verplank v. Member,
74 N. Y. 620.)

Unless the judgment or order appealed from refers to the
opinion so as to make it a material part of the record (See Tol-
man v. Syracuse, Binghamton d& N. ¥. R. BR. Co., 92 N. Y. 353;
Salmon v. Gedney, 75 N. Y. 749), and unless the order of rever-
sal shows that the reversal was upon the facts, the Court of Appeals
must assume that it was granted upon questions of law only.

(Rider Life Raft Co. v. Roach, 97 N. Y. 878; Leitz v. Feit, 80
Review or Questions oF Fact. 279

 

Where the trial was by the court or by a referce.

N. Y. 5388; Ward v. Craig, 87 N. Y. 550; Matter of Kings Co.
Elevated R. R. Co., 82 N. Y. 95; Wallace v. Drew, 54 N. Y. 678.)
If the order of reversal states that it was granted upon questions of
law, or if it is silent as to the grounds upon which it was granted,
the Court of Appeals will consider questions of law only on the
appeal to that court. (Rider Life Raft Co. v. Roach, 97 N.Y.
378 ; Platt.v. Platt, 58 N. Y. 646; Weyer v. Beach, 79 N. Y. 409 ;
Davis v. Leopold, 817 N. Y. 620; Van Tassel v. Wood, 76 N. Y.
614.)

On the other hand, if it clearly appears in the body of the judg-
ment or order appealed from that the judgment was reversed or the
new trial granted upon a question of fact, the Court of Appeais
must review the determination of the General Term of the court
below upon the questions of fact as well as the questions of law.
(Code of Civil Pro. § 1338 ; Baird v. Mayor, etc., of New York,
96 N. Y. 567 3 Johnson v. Young, 65 N. Y.599; Petersen v. Raw-
son, 84. N. Y. 870; Schulte v. Loagland, 85 N. Y. 464.) So where
the order of reversal states that the reversal was upon both questions
of law and fact, the questions of fact are before the Court of Appeals
for review. (Id.; Van Wyck v. Walters, 81 N. Y. 352; Godfrey
v. Moser, 66 N. Y. 250; Coleman v. Second Ave. I. R. Co.,38 N.
Y. 201.) The provision of the Code above cited is the only one
authorizing a review i the Court of Appeals of questions of fact
depending upon conflicting evidence. (Matter of Joss, 87 N. Y.
514.) If it does not appear in the order of the General Term that
the reversal was upon questions of fact, the Court of Appeals will
only inquire whether the judgment rests upon any error of law.
(Davis v. Leopold, 87 N. Y. 629.) This inquiry will include the
question whether the court or referee refused to make any finding
whatever upon a question of fact where a request was seasonably
made, and also the question whether the court or referee found a fact
without any evidence tending to sustain it. (Code of Civil Pro.
§ 993 ; James v. Cowing, 82 N. Y. 449.) But it is the settled law
that on appeal to the Court of Appeals, no fact can be considered
for the purpose of reversing a judgment, unless it is either stated in
the findings, or requested to be found on uncontroverted evidence.
(Thomson v. Bank of British North America, 82 N. Y. 1; Holden
v. Burnham, 638 N. Y. 74; Fabbri v. [albjleisch, 52 N. Y. 28;
Taylor v. Guest, 58 N. Y. 262; Pratt v. New York Cent. Ins. Co.,
55 N. Y. 505; Stewart v. Morss, 79 N. Y. 629.)

 
280 New Tracts anp APpPrALs.

 

Where the trial was by the court or by a referee,

 

Upon an appeal from a judgment of the General Term affirming
a judgment entered upon the report of a referee or. the decision of
the court upon a trial without a jury, the court will look into the
evidence only for the purpose of ascertaining whether there is any
evidence tending to support the facts found. If there is evidence
showing the probable truth of the facts found, it must be assumed
by the appellate court that such facts were correctly found, irrespect-
ive of any controverting evidence, no matter what may be its
weight. (Burgess v. Simonson, 45 N. Y. 225; Cook v. Whipple,
55 N. Y. 150,165; Tyng v. United States Submarine & Torpedo
Boat Co.,60 N. Y. 644; Leynolds v. Robinson, 82 N. Y. 103, 106.)
In reviewing the determination of the trial court upon the facts, the
Court of Appeals is confined to the inquiry whether there is any
evidence to sustain it. 1t does not pass upon the weight or prepon-
derance of evidence, nor, in a case where opposing inferences may be
drawn, can it review a finding because, in its judgment, the infer-
ence deduced by the tria] court is improbable or more unlikely to be
true than the opposite one. (Reynolds v. [obinson, 82 N. Y. 106.)
If there is any evidence to sustain the findings of fact, they are con-
clusive. (Ifathews v. Coe, 49 N. Y.57; Quincey v. White, 63 N.
Y. 370, 875; Van Gelder v. Van Gelder, 77 N. Y. 446; Potter v.
Carpenter, 71 N. Y. 74; Derham v. Lee, 87 N. Y. 599, 605; Gra-
ham v. Selover, 46 Wow. 107; Finch v. Parker, 49 N. Y. 1, 8;
Caswell v. Davis, 58 N. Y. 223; Laux v. Brand, 90 N. Y. 809,
312; Dambmann v. Schulting, 5 N. Y. 622; Van Tuyl v. West-
chester Dire Ins. Co., 55 N. Y. 657.) This rule is applicable to an
appeal from a judgment of the General Term, contirming a report
of a referee npon a reference of a disputed claim against an estate
under the statute, directing judgment thereon, and reversing an
order of the Special Term which set aside such report and directed
anew trial. (Hredenburgh v. Biddlecom, 85 N. Y. 196.) But
where a fact is found without evidence, or against undisputed cvi-
dence, an error of law has been committed which may be reviewed
in the Court of Appeals, if the appellant has duly excepted to
the finding. (Jfaithews v. Coe, 49 N. Y.57; 70.N. Y. 289, 243 ;
Wegman v. Childs, 41 N. Y. 159; Mason v. Lord, 40 N. Y. 476,.
484; Sheldon v. Sheldon, 51 N. Y. 354; Loot v. Great Western R. RB.
Co., 45 N.Y. 524, 527; Putnam v. Hubbell, 42 N. ¥.106; Afeacham
v. Burke, 54 N. Y. 217, 220; Beck v. Sheldon, 18 N. Y. 365, 369 ;
Pollock v. Pollock, (1 N.Y. 187,149; Dewy v. Masterson, 44.N.
Review or Questions or Facr. 281

 

When the trial. was by jury.

 

Y. 557; Sickles v. Flanagan, 79 N.Y. 224.) In some cases the
examination of the evidence by the appellate court to see whether
any evidence was given on the trial in support of the finding
excepted to, and the determination of that question bears a close
resemblance to an ordinary review of a judgment on the facts.
Thus, on an appeal from judgment in an action of divorce where
no direct proof was given of the adultery charged, and the finding of
the fact was based upon inferences drawn from circumstances, the
court will examine the evidence contained in the case to see whether
the circumstances warrant the inferences, and if they do not, will
reverse the judgment. Insufficient evidence is, in the eye of the
law, no evidence. (Pollock v. Pollock, 71 N. Y.187, 153.)

When the trial was by jury.—An appeal to the Court of
Appeals will not be entertained where the court below has ordered
a new trial in a case tried by jury, if any material and controverted
question of fact was involved, and the General Term granted or might
have granted the new trial on such question of fact, even though the
court below has inserted in its order of reversal a statement that the
reversal was on questions of law only, and the opinion also shows
that the reversal was upon questions of law ( Wright v. Hunter, 46
N. Y. 409; Sands v. Croohe, 46 N. Y. 564; Dickson v. Broadway
& Seventh Ave. 2. R. Co. 47 N. Y. 507; LHarris v. Burdett, 73
N.Y. 186; Whitson v. David, 81 N. Y. 645; Snebley v. Conner,
78 N. Y.218; Thurber v. Harlem Bridge, &c., L. I. Co.,60 N.
Y. 326; Bronk v. New York & New Haven R. R. Co., 95 N. Y.
656) ; and even though both parties desire the court to entertain the
appeal. (Id.) Ifon the other hand the General Term, upon an
appeal from the judgment and from an order refusing a new trial,
reverses the judgment upon the exceptions and affirms the order
denying the new trial upon the facts, an appeal will lie to the Court
of Appeals from the order of the General Term. (Harris v. Bur-
dett, 73 N. Y. 1386; Bronk v. New York & New Haven R. RB. Co.,
95 N. Y. 656; Goodwin v. Conklin, 85 N. Y. 21.) But on such
appeal a question of fact arising upon conflicting evidence cannot be
reviewed, as section 1387 of the Code of Civil Procedure prohibits
the determination of such questions except where special provision
for the determination thereof is made by law, and the only special
provision contained in the Code authorizing a reviow in the Court
of Appeals of a question of fact depending upon conflicting evidence
289 New Trrats anp Apprats.

 

When the trial was by jury.

 

is that contained in section 1338, which is limited to cases where the
General Term has reversed upon a question of fact a judgment
entered upon the report of a referee or upon the decision of the
court upon a trial without a jury. (Matter of Ross, 87 N. Y. 514.)
Where a trial has been had before a jury, and a general verdict has
been rendered, the Court of Appeals can deal only with questions of
law upon exceptions duly taken, and has no power to correct the
errors of the jury. (Oldfield v. New York & Harlem Rf. R. Co.,
14 N.Y. 810; Standard Oil Co. v. Amazon Ins. Co., 79 N. Y.
506.) Upon an appeal from a judgment of the General Term
affirming a judgment entered upon a verdict, and affirming an order
denying a new trial, the court will not review the finding of the
jury upon questions of fact which appear by the evidence to have
been controverted upon the trial, where the controversy was actual
and substantial, and not colorable and formal merely. (Sprong v.
Boston & Albany R. R. Co., 58 N. Y. 56, 60; Hynes v. McDer-
mot, 91 N. Y. 451.) Upon such an appeal, the court will look into
the evidence for the single purpose of ascertaining whether there
were any facts proved upon which the jury could found their ver-
dict. (Hazman v. Hoboken Land & Improvement Co., 50 N.Y. 53,
55.) If upon such examination the court finds that there is some
evidence to sustain the verdict, and that upon any view of the facts
the verdict can be upheld, the court will not interfere with the
determination of the General Term, affirming the judgment and
denying the new trial, although the court might, if it had the power
to determine the questions of fact embraced in the verdict, have
reached a conclusion different from that reached by the jury. (Haz-
man v. Hoboken Land & Improvement Co., 50 N. Y. 53, 55; Maher
v. Central Park, &c., R. R. Co., 67 N. Y. 52,55; Downs v. New
York Cent. R. R. Co., 56 N. Y. 664; Hamilton v. Third Ave. R.
R. Co., 583 N. Y. 25; Green v. Fortier, 80 N. Y. 640.) The Court
of Appeals will not reverse upon the ground that the verdict is
against the weight of evidence merely. (Id.) But if it appears that
the verdict is without any evidence to sustain it, or is against evi-
dence, an error in law is presented which the Court of Appeals may
review. (Hazman v. Hoboken Land & Improvement Co., 50 N. Y.
53, 56.)

These principles apply to all questions of fact determined by the
verdict. Thus, a question as to the amount of damages cannot be
reviewed in the Court of Appeals, and the only question which the
Review. or Questions oF Fact. 283

 

Upon appeal from an order.

 

court can determine is whether any, or more than nominal damages,
are recoverable. (Oldfield v. Harlem R. Ie. Co.,14 N. Y. 310;
Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506; Lhd v. Forty-
second Street, etce., R. BR. Co., 47 N. Y. 317; Maher v. Central
Park, etc. R. R. Co., 67 N. Y. 52; Starbird v. Barrons, 62 N. Y.
615.)

Where the trial was before a surrogate.—Where upon an
appeal to the General Term of the Supreme Court, a decree of a
surrogate in proceedings for the probate of a will has been affirmed,
and an appeal has been taken to the Court of Appeals, the latter
court cannot review questions of fact which depend upon conflicting
evidence, but is confined exclusively to questions of law. (Matter of
Ross, 87 N. Y. 514; Matter of Will of Cottrell, 95 N. Y. 329;
Marz v. McGlynn, 87 N. Y. 357; Davis v. Clark, 87 N. Y. 623.)
The provision of section 2586 of the Code of Civil Procedure, declar-
ing that where an appeal is taken upon the facts, the appellate court
has the same power to decide the question of fact which the surro-
gate had, has reference only to appeals from surrogate’s decrees or
orders to the Supreme Oourt. (Id.)

On an appeal to the Court of Appeals, the court looks into the
evidence given on the trial, only for the purpose of seeing whether
there is competent evidence to support the conclusions of fact by the
trial court ; and, if such evidence is found, the court is concluded by
the findings of the trial court. (JMlatter of Will of Cottrell, 95 N.
Y. 829; Marx v. McGlynn, 88 N. Y. 357, 369.)

Upon appeal from an order.—A question of fact involved in
the decision of a motion will not be reviewed in the Court of
Appeals if it depends upon conflicting evidence. (Bassett v.
Wheeler, 84 N. Y. 466; Kennedy v. Kennedy, 73 N. Y. 369.) If
the judge who granted the order appealed from had jurisdiction of
the subject-matter, and there was evidence to sustain his findings,
these findings are conclusive upon the Court of Appeals after
approval by the General Term (Matter of Bailey, 85 N. Y. 629 ;
Matter of S., 85 N. Y. 680); even though the Court of Appeals
would not have made such findings if passing upon the facts in the
first instance. (Zwombly v. Cassidy, 82 N. Y. 155.)

On appeal to the Court of Appeals from an order granting
alimony pendente lite in an action for divorce, the power of the court
984 New Trrats anp APpPEALs.

 

Upon appeal from an order.

below is the only question reviewable. If the complaint does not
set forth facts sufficient, if true, to constitute a cause of action,
alimony cannot be granted. (Kennedy v. Kennedy, 73 N. Y. 369.)
If the facts stated on the application for alimony are such that, on
general principles of equity, the plaintiff is not entitled to demand
alimony, the question becomes one of law reviewable by the Court
of Appeals. (Collins v. Collins, 71.N. Y. 269.) Thus, if the admis-
sions or proof presented on the application are not sufficient to
authorize the court to determine that the applicant stands in the
relation of wife to the party from whom alimony is demanded, or if
the answering papers admit a marriage ceremony, but set up facts
showing that the applicant was not at the time competent to con-
tract a marriage, and these facts are uncontroverted, an order grant-
ing alimony in such a case is reviewable by the Court of Appeals.
(Id.) But where the question of the relationship of the parties is
not raised, and it cannot be determined as a matter of law that the
plaintiff cannot establish a cause of action under the complaint, the
court, upon an appeal from the order granting alimony to the
plaintiff, will not pass upon the merits upon conflicting allegations
or proofs, or review the findings of the court below upon the ques-
tions of fact. (Kennedy v. Kennedy, 73 N. Y. 369.)

On appeal from an order denying a motion to vacate an order of
arrest, where the affidavits are full, and establish a prima facie
ease for an order of arrest for fraud extrinsic the cause of action,
the question of fact raised by affidavits in denial, submitted by the
defendant, cannot be reviewed in the Court of Appeals. (Hwm-
phreys v. Hayes, 94 N. Y. 594, 604.) The court will not review the
order when the facts and circumstances proved, or the legitimate
inferences deducible from such facts, furnished some evidence of a
fraudulent intent on the part of the defendant in the creation of the
debt. (Wright v. Brown, 67 N. Y.1; Morris v. Talcott, 96 N. Y.
100.) But where there is no evidence legitimately tending to estab-
lish such a conclusion, and the natural inferences to be drawn from
the facts stated do not necessarily lead to the presumption of a
fraudulent intent, a question of law is presented, which the Court of
Appeals will review. (Id.) It is always competent for that court
to review such an order, if it involves a question of law, as where the
order of arrest was granted in a case not authorized by the Code, or
where the affidavits fail to establish one of the specified causes of
arrest. (Wright v Brown, 67N. Y.1.) So the court will review
Prinocrptes Governine THE Decision. 285

 

Decision may be sustained on any ground appearing in the record.

 

an order granting a temporary injunction, when it does not appear
from the complaint that the plaintiff is entitled to the final relief for
which the action is brought. (McHenry v. Jewett, 90 N. Y. 58.)

ARTICLE VII.

PRINCIPLES GOVERNING THE DECISION OF THE APPEAL.

SECTION I.
GEenERAL Rows.

Error must be affirmatively shown.—It is incumbent upon a
party secking the reversal of a judgment or order, to show aflfirma-
tively that an error was committed to his prejudice. It is not
sufficient to show that it may have been committed, as this will not
overcome the presumption that all things have been transacted cor-
rectly until the contrary appears. (Zracey v. Alimyer, 46 N.Y.
598 ; Appleby v. Erie County Savings Bank, 62 N. Y. 12, 18.)

Decision may be sustained on any ground appearing in the
record.—The court will not reverse a correct decision because
founded upon a wrong reason, unless possibly in a case where the
ground of decision stated conld he seen to have misled a party to his
injury. (Marvin v. Universal Life Ins. Co., 85 N. Y. 278;
Deland v. Richardson, 4 Denio, 95; Scott v. Pilkington, 15 Abb.
280 ; Gillespie v. Torrance, 4 Bosw. 36; 25 N. Y. 306.)

A respondent is entitled to urge in support of the judgment
appealed from, any sufficient ground appearing in the record, which
he might have raised in the court below, provided it could not have
been obviated had it been raised upon the trial. (Scott v. Morgan,
94 N. Y. 508; Beckwith v. Whalen, 5 Lans. 8377; Mewcomd v.
Clark, 1 Denio, 226 ; Palmer v. Lorrilard, 16 Johns. 848; Allard
v. Greasert, 61 N. Y. 1,4; Stevens v. Hyde, 32 Barb. 171; Simar
v. Canaday, 53 N. Y. 298; People v. Supervisors, 70 N. Y. 228.)
If the General Term has reversed the judgment below, the respond-
ent is entitled to sustain the reversal by showing any error of law
which is fatal to the judgment, whether made the reason of the
action by the General Term, or whether wholly unnoticed by it.
( Ward v. Craig, 87 N. Y. 550.)
286 New Trrats anp APPEALS.

 

Disregard of harmless errors—Inconsistent findings.

 

Disregard of harmless errors.—It is a general rule that an
error in a ruling made upon the trial, which could not have preju-
diced the appellants, will not be deemed on appeal a sufficient
ground for reversing the judgment. (Zenney v. Berger, 93 N. Y.
524; Thorn v. Turck, 94 N. Y, 90; Story v. Williamsburgh
Masonic Mutual Benefit Association, 95 N. Y. 474; Ellwanger v.
fish, 60 N. Y. 651; Flannagan v. Madden, 81 N. Y. 623 ; Downs
v. Mew York Cent. R. BR. Co., 56 N. Y. 664.) But it is only where
the court can see that the appellant could not have been prejudiced
by the erroneous ruling, that an exception thereto can be wholly
disregarded. (See Foote v. Beecher, 78 N. Y. 155; Starbird v.
Barrons, 43 N. Y. 200.)

The rule is well settled that in an equity case, a judgment will
not be reversed merely on the ground that proper evidence was
rejected on the trial ; if, on all the facts and circumstances, the court
is satisfied that the result ought not to have been different if the
evidence had been received. (Matter of Application of New York
Cent. & H. Rk. BR. R. Co.,90 N. Y. 342; Hing v. Whaley, 59 Barb.
71; Apthorp v. Comstock, 2 Paige, 482.) But errors in the rejec-
tion or reception of evidence, are seldom harmless, and generally
result in the reversal of the judgment of the court below. The
manner in which an appellate court will dispose of exceptions to
rulings made upon the trial, whether relating to the reception or
rejection of evidence, or otherwise, has been considered in another
chapter, and the principles there stated are applicable to all courts
alike, except as otherwise pointed out. (See ante, pp. 173-188.)

Inconsistent findings.—Where the findings by a court or ref-
eree contained in the case settled are in conflict with those con-
tained in the report or decision, the former will be held to be cor-
rect, and to represent the conclusions finally reached. (Schwinger
y. Raymond, 83 N. Y. 192; Tompkins v. Lee, 59 N.Y. 662.) If
the findings of fact are conflicting, that one will be adupted by the
court on appeal which is most favorable to the defeated party, in
aid of his exceptions to the conclusions of law. (Id.; Bennett v.
Bates, 94 N. Y. 354, 367 ; Health Department of N.Y. v. Purdon,
99 N. Y. 287, 243; Bonnell v. Griswold, 89 N. Y. 122.) But the
appellate court will harmonize findings where it can do so, and
will not impute to the trial judge or referee an intention to reverse
a deliberate finding, upon a mere collateral finding in which an
DETERMINATION oF Questions oF Fact. 287

 

Determination of questions of fact.

 

inadvertent and immaterial expression was used in describing an
irrelevant fact. (Bennett v. Bates, 94 N. Y. 354, 368.) But a
general finding, like a general verdict, is controlled by a special
finding of fact. (Phelps v. Vischer, 50 N. Y. 69.)

SECTION IL.
DETERMINATION OF Questions oF Fact.

The Court of Appeals is prohibited by section 1337 of the Code
of Civil Procedure from determining on appeal a question of fact
arising upon conflicting evidence, whether the appeal is from an
order merely (ante, p. 283), or from a decree of a surrogate (ante,
p- 283), or from a judgment entered upon the verdict of a jury
(ante, p. 281), or upon the report of a referee or the decision
of the court in an action tried without ajury, except in the case
of an appeal from a judgment reversing a judgment entered upon
such report or decision, or from an order granting a new trial
upon such reversal, where it clearly appears in the body of the judg-
ment or order appealed from that the judgment was reversed or the
new trial granted upon a question of fact. (Ante, p. 278.)

In a case not coming within the exception, the determination of
the court below is conclusive, and if no other questions are presented
for review, the appeal will be dismissed. But in a case coming
within the exception, where a review of the facts by the court of
appeals is proper, it is its duty, as a general rule, to pass upon the
facts from the evidence. The rule that where there is conflict-
ing evidence, or any evidence to sustain the finding, it is error to
reverse, has no application in such a case. But in reviewing the facts
the appellate court will award proper deference to the judgment of
the trial judge or referee in cases of serious doubt, upon conflicting
evidence ; especially when it is probable that the appearance of the
witnesses, or their manner of testifying, was, or might have been
controlling in determining the questions. In such case, if it does
not appear that the trial judge or referee decided the fact without
evidence, or clearly against the weight of evidence, his finding of
fact will be upheld. The general disposition of the courts is to sus-
tain the referee or trial judge in his findings of fact. (See Sher-
wood v. Hauser, 94 N.Y. 626; Godfrey v. Moser, 66 N. Y. 250;
Moran v. McLarty, 75 N. Y. 25; Shultz v. Hoagland, 85 N. Y.
288 New Trias anp APPrALs.

 

Conclusions of law unsupported by findings of facts.

464; Westerlo v. De Witt, 836 N. Y. 840; Orane v. Baudouine, 55
N. Y. 256.) But where the finding of the referee or trial judge is
based on written evidence, which has the same aspect in every court,
the reason of the rule does not apply, and the court will accord no

special deference to his conclusions. (See Bigler v. Barnes, 56
N. Y. 654.)

 

SECTION III.
Conciusions or Law Unsurrorren py Finpines or Facts.

Upon an appeal upon the law alone from a judgment of the
General Term, affirming a judgment entered upon the decision of
the court on a trial without a jury, or upon the report of a referee,
the appellate court will consider such questions of law only as are
presented by exceptions duly taken. (Caswell v. Davis, 58N. Y.
223 ; ante, p. 276.) If the case contains no statement of the con-
clusions of fact found by the court or referee, nothing can be
intended or presumed against the correctness of the final decision,
and the party obtaining the judgment is entitled in its support to
that inference from the facts proved which is most. favorable to him.
( Viele v. Troy & Boston R. R. Co., 20 N. Y. 184.)

If the finding of a fact material to the support of the conclusions
of law is omitted from the findings of fact, and inserted among the
conclusions of law, the court will assume that the judge or referce
found the facts necessary to support his conclusion, provided the
evidence in the case was such that he might have found them.
(Parker v. Baxter, 86 N. Y. 586.)

If no exception was taken to the findings of fact, and the appel-
lant has based his appeal upon exceptions to the legal conclusions of
the court or referee from the facts found, the findings of fact will
be assumed to be correct, and if the conclusions of law are correct
upon the facts found, the judgment entered thereon will be sustained.
(Second Nat. Bank of Oswego v. Poucher, 56 N. Y. 348; Stoddard
v. Whiting, 46 N. Y. 627. See Agricultural Ins. Co. v. Barnard,
96 N. Y. 525; Reese v. Boese, 94 N. Y. 623.) If all the conclu-
sions of law are excepted to, and also some of the findings of fact,
and the conclusions of law are correct if the findings of fact are sus-
tained, the court will consider the exceptions to these findings. To
justify a reversal of the judgment in such case, it must appear from
an examination of the case, that there is no competent evidence to
Finpines or Facr Unsuprorrep spy Evipence. 289

 

Findings of fact unsupported by evidence.

 

sustain the findings excepted to. (See ante, p. 280.) Even then,
it must appear further that the conclusions of law necessarily depend
upon these findings of fact, or upon one of them. And it must fur.
ther appear, that there is no other fact presented by the evidence,
not expressly found, but which might have been found, which wonld
justify the conclusions of law arrived at, and the judgment based
thereon. (Caswell v. Davis, 58 N. Y. 223.)

To justify a reversal by the General Term of a judgment entered
upon a report or decision in favor of the plaintiff, where the record
did not contain the evidence taken on the trial, and the appeal to
the General Term was heard and determined solely upon the judg-
ment-roll and exceptions to the findings of law by the trial court,
it must be made to appear that the trial court could not, in any
view of the facts found, properly order a judgment for the plaintiff.
(Agricultural Ins. Co. v. Barnard, 96 N. Y. 525.)

Judgments are not reversed in the Court of Appeals because
the facts found by a referee or judge do not affirmatively sustain
them. On the contrary, the judgments of subordinate courts are
presumed to be right unless it appears that a rule of law has been
violated after assuming that the facts have been viewed in the most
favorable light which the case will admit of. (Grant v. Morse, 22
N. Y. 323; Tomlinson v. Mayor, 44 N. Y. 601, 607.)

A finding essential to the conclusion reached by the trial judge
or referee, if not expressly stated in the case, must, in support of the
judgment, be intended to have been made, provided there is any
evidence upon which it could have been predicated. (Hays v. Mil-
ler, 70 N.Y. 112; Grant v. Morse, 22 N. Y.328; Caswell v. Davis,
58 N. Y. 223; Meyer v. Lathrop, 73 N. Y. 315; Carr v. Carr, 52
N. Y. 251; Tomlinson v, Mayor, 44 N. Y. 601; Chubbuch v. Ver-
nam, 42 N. Y. 432.) The extent and limit of this rule has been
discussed elsewhere. (See ante, p. 174.)

SECTION IV.
Finvrines or Facr Unsupporrrp sy EvIpENcE.

The Court of Appeals will always look into the evidence to see
if a court or referee has found a fact without any evidence tending
to support it, if the question is properly presented by exception.
(Ante, p. ai°,) But a case must be made out very clearly to require
290 New Trrats AnD APPEALS.

 

Findings of fact unsupported by evidence,

 

the court to reverse or to sustain the reversal of a judgment on the
ground that the findings of fact are so wholly unsupported as to be
errors of law. (Smith v. Pettee, 70 N. Y. 13.) Even when such a
case is made, the court will not be authorized to reverse the judg-
ment on this ground unless it appears that the conclusions of law
necessarily depend upon these findings of fact, and that there are no
other facts not found, but which might have been found upon com-
petent evidence appearing in the case, which will justify the conclu-
sions of law arrived at and the judgment based thereon. (Casweld
v. Davis, 58 N. Y. 223, 229.) If, however, the judgment cannot be
sustained without resort toa finding wholly unsupported by evidence,
it will be reversed. (Mutual Life Ins. Co. v. Hoyt, 86 N. Y.
615.)

Although areferee in the presence and by consent of counsel las
inspected premises alleged to have been properly secured, and in his
report has stated that his findings are based upon the proofs and
such view, what the referee discovered on such inspection cannot be
considered in determining whether a finding was without evidence,
unless what wasseen by the referee is detailed and spread out in the
case. (Claflin v. Meyer, 75 N. Y. 260, 267.)

Where a question of fact has arisen upon the trial as to whether
a paper, whose contents a party desires to prove, is lost, and the trial
judge has held the proof of loss insufficient, the appellate court will
not reverse the judgment on the ground of the exclusion of parol
evidence of the contents of the paper, unless the appellant establishes
that the proof of loss was so conclusive that it was error of law to
hold it insufficient. (Herney v. Mayor, ete., of WV. Y., 92 N.Y. 617,
621.)

In reviewing exceptions taken to findings of fact upon a case
made for that purpose, the appellate court will assume that all the
evidence in support of the findings excepted to is inserted in the
case ; and if the case does not show any evidence in support of such
findings, and the findings are material, and essential to the support
of the judgment, the court will reverse a judgment of affirmance
and order a new trial. (Perkins v. Hill, 56 N. Y. 87.)
Dentats or Requests ror Finpixes. 291

 

Requests for findings of law or fact.

 

SECTION V.
*#Deniats or Requests ror Finpines or Law or Fact.

The Court of Appeals will not reverse a judgment upon evidence
not found by a referee or trial judge, as to which no finding was
requested. (Burnap v. National Bank of Potsdam, 96 N. Y. 125;
ante, p. 279.) Nor will the court reverse on the ground that the
court or referee refused to find the fact on request, if the fact itself,
in view of the other facts found, is immaterial (Quincy v. White,
63 N. Y. 370,) nor where the party making the request failed to
except to the refusal. (Reese v. Rutherford, 15 Week. Dig. 365.)

Where the refusal of a request to find a fact amounts to a denial
of the fact, an exception to the refusal will not be available to pro-
cure a reversal of the judgment in the Court of Appeals unless the
appellant shows not only that evidence was given proving the fact,
but also that the evidence was uncontroverted. In such case the
fact to be found must not only be material, but must also be con-
clusively proven. (James v. Cowing, 82.N. Y. 449, 458 ; Thompson
v. Bank of British North America, 82 N. Y.1; Andrews v. Ray-
mond, 58 N. Y. 676; Stewart v. Morss, 79 N. Y. 629.) But the
rule requiring a fact to be found by uncontroverted evidence in
order to make an exception to the refusal to find it available on
appeal does not apply where the refusal neither admits nor denies the
fact, but is based npon its supposed want of materiality. In such
case, if the General Term affirms the judgment, the Court of
Appeals will review the question of law raised by the exception,
and if it finds the fact to be material, and that there is evidence,
though not uncontroverted, from which the fact might have been
found, will reverse the judgment and order a new trial. (James v.
Cowing, 82 N. Y. 449, 458.) It is not now necessary that a motion
should be made at Special Term for an order sending the case back
for further findings, in order to raise the question of the materiality
of the fact sought. (Id.) But if such motion is made and denied,
and the order of denial is affirmed by the General Term, the Court
of Appeals, on an appeal from the judgment, may review the order
denying the motion, and, if the facts are found to be material, and
to be such that if found for the appellant would have entitled him
299 New Triats anp APPEALS.

 

Refusals of the court below to act.

 

to a reversal, may reverse the judgment of the General Term, leav-
ing the judgment entered upon the report or decision to stand, and
direct that the case be sent back to the judge or referee to pass upon
the facts embraced in the requests denied. (Potter v. Carpenter, 71
N. Y. 74; Quincey v. Young, 53 N. Y. 504.)

The refusal of the trial court to find as requested upon a question
of law involved in a case submitted for determination is not an error
of law necessarily calling for a reversal of the judgment by the
Court of Appeals, although the request might well have been
granted, if the appellate court arrives at the same final conclusion
reached by the trial court as to the right of recovery. (Loeb v.
Hellman, 83 N. Y. 601.)

SECTION VI.

Rervusats or tHE Court Betow to act FoR SupPosED WANT OF
Power.

Where it rests in the discretion of the court below whether to
grant or deny an application made to it either upon atrial of an
action, or by way of special motion, the Court of Appeals will not
review the exercise of that discretion. But where the court below,
though possessing discretionary power, decides that it has no discre-
tion, and denies the application upon the ground of want of power
to grant it, an error of law tA coatititied which the Court of Appeals
will correct by reversing the judgment and granting a new trial, if
the error was committed upon the trial, or by reversing the order
and remitting the case to the court below with a direction that the
application be heard at Special Term upon the merits, if the error
was committed in the decision of amotion. (Beach v. Chamberlain,
3 Wend. 366; Lussell v. Conn, 20 N. Y. 81; Foote v. People, 56
N. Y. 821, 324; Tilton v. Beecher, 59 N. Y.176, 180; Brown v.
Brown, 58 N. Y. 609; Tracey v. Alimyer, 46 N.Y.598; Direct U.
8. Cable Co. v. Dominion Tel, Oo., 84 N. Y. 153, 156; Matter of
Attorney-General v. Continental Life Ins. Co., 88 N.Y. 77; Tolman
v. Syracuse, Binghampton & N. Y. R. LR. Co, 92 N. Y. 353.) If
the error was committed by the General Term in reversing on appeal
a discretionary order upon the sole ground that the Special Term
exceeded its powers in granting it, the Court of Appeals will correct
the error by reversing the order of the General Term and remitting
Erroneous DecisIon AS TO JURISDICTION. 293

 

Refusals of the court below to act.

 

the case to it to exercise its discretion in reviewing the order of the
Special Term. (L2eed v. Mayor, ete., of NV. Y., 97 N. Y. 620.) But
under the general rule that it is incumbent upon the party seeking a
reversal of a judgment or order to show affirmatively that an error
was committed to his prejudice, the appellant must show affirma-
tively that the court below refused to consider his application upon
the merits from an erroneous supposition of want of power, or that
the General Term reversed the action of the Special Term upon the
ground that the latter exceeded its powers in considering the applica-
tion on the merits. (Zracey v. Alimyer, 46 N. Y. 598.) This, as
a general rule, must be shown by the order itself. The Court of
Appeals can look only to the order to ascertain the ground upon
which the court below proceeded, and cannot look to the opinion to
ascertain the same (Dérect U. 8S. Cable Co. v. Dominion Tel. Co.,
84.N. Y. 153; Woyes v. Children’s Aid Society, 70 N. Y. 481, 485;
Hewlett v. Wood, 67 N. Y. 394), unless the opinion is so referred to
in the order as to make it a part of it (Zolman v. Syracuse, Bing-
hampton & NV. Y. R. R. Co., 92 N. Y. 353), or unless the ground
upon which the court proceeded is expressed in the order, and the
statement is coupled with phrases which create a doubt. (Fisher v.
Gould, 81 N. Y. 228; Tilton v. Beecher, 59 N. Y. 176.)

Where a motion made at Special Term is granted on the sole
ground that the court has no authority to deny it (Zguitable Life
Ins. Co, v. Stevens, 63 N. Y. 341), or is denied solely upon the ground
of want of power to grant it (Hewlett v. Wood, 67 N.Y. 394;
Direct U. 8. Cable Co. v. Dominion Tel. Co., 84 N. Y. 153), and the
General Term affirms the order without qualification, the Court of
Appeals will assume that the Special Term order is affirmed in all
respects, including the ground upon which it was granted or denied.
(id.)

Where the General Term dismisses an appeal upon the ground
that it has no power to entertain it, when in fact such power exists,
the Court of Appeals will reverse the order of dismissal and remit
the case to the General Term to hear and determine the appeal upon
the merits. (Jemison v. Citizens’ Savings Bank, 85 N. Y. 546;
Hanover Fire Ins. Oo. v. Tomlinson, 58 N. Y. 215 ; People v. New
York Cent. R. BR. Co.. 29 N. Y. 418, 423.)
294 New Triats anp APPEALS.

 

Unauthorized judgments of the General Term.

 

SECTION VIII
Egroneous ok UNAUTHORIZED JUDGMENTS or THE GENERAL TERM.

Where the General Term has entertained an appeal from a non-
appealable order, and reversed the action of the Special Term, the
order of the General Term will be reversed, and the appeal thereto
dismissed. (fatter of Larson, 96 N. Y. 381.) And generally, if
the General Term, without having jurisdiction, reviews and reverses
a judgment or order, the Court of Appeals will reverse its action.
(McMahon v. Rauhr, 47 N. Y. 67.)

Where the General Term having jurisdiction of the appeal, and
the power to review the facts, reverses the judgment appealed from,
‘but instead of granting a new trial, erroneously directs judgment
absolute, the Court of Appeals may correct the error by modifying
‘the decision of the General Term so as to award a new trial, without
‘wholly reversing the judgment. (Goodwin v. Conklin, 85 N.Y.
‘21. See also, People v. Supervisors, 70 N. Y. 228, 239.) Lut
where the General Term has determined that a judgment in favor
of the plaintiff in an action upon contract for services, or upon a
quantum merutt, is erroneous, and instead of awarding a new trial,
determines for itself upon conflicting evidence what sum the
plaintiff ought to recover, and renders judgment therefor, the Court
of Appeals will reverse both the judgment of the General Term and
the judgment of the trial court, and order a new trial. ( WaAzdtehead
v. Kennedy, 69 N. Y. 462; Moffet v. Sacket, 18 N. Y. 522; Cassin
v. Delaney, 88 N. Y. 178; 6 Abb. N. 8. 1.)

Where a surrogate’s decree on an application for the probate of
a will, has been reversed by the General Term upon a question of
fact, and the appellate court, instead of awarding an issue to be tried
'by jury, has remitted the proceedings and judgment to the surro-
‘gate, the Court of Appeals will correct the error by modifying the
judgment so as to direct that an issue be made up, settled, and tried
‘by jury as required by statute. (Sutton v. Ray,72 N. Y. 482. See
Matter of Will of Martin, 98 N. Y. 193, 197.)

When costs in the discretion of the court have been awarded
under erroneous views of the law affecting the rights of the parties,
and the judgment awarding them has been affirmed by the General
THE Jup@MENT oR ORDER. 295

 

ee Power of the court—Judgment absolute.

 

Term, the Court of Appeals may correct the error by reversing the
judgment as to costs and affirming it as to the residue. (Morris v.
Wheeler, 45 N. Y. 708. But see Brooks v. Curtis, 50 N. Y. 639.)

ARTICLE VIIT.

JUDGMENT AND REMITTITUR.

SECTION I.
Tue JUDGMENT OR ORDER.

Power of the Court.—Upon an appeal from a judgmeut or an
order, the Court of Appeals may reverse or affirm, wholly or partly,
or may modify, the judgment or order appealed from, and each
interlocutory judgment or intermediate order which it is authorized
to review as specified in the notice of appeal, and as to any or all of
the parties, and it may, if necessary or proper, grant a new trial or
hearing. (Code of Civil Pro. § 1317.)

If the appeal is from a judgment affirming a judgment rendered
in an action at law on an account or for damages, the Court of
Appeals is not authorized to affirm the judgment so far as it allows
one item of the claim interposed, and to send it back for a new trial _
as to another. The error alleged as to a part, necessarily reverses —
the entire judgment, and the reversal and a new trial must be as to
the entire claim. (Wolstenholne v. Wolstenholme File Manuf. Oo.,
64 N. Y. 272; Story v. New York & Harlem R. R. Co., 60 N. Y.
85. See Whitehead v. Kennedy, 69 N. Y. 462; Crim v. Stark-
weather, 88 N. Y. 339.)

 

Judgment absolute.—The Code provides that upon an appea:
from an order granting a new trial, on a case or exceptions, if the
Court of Appeals determines that no error was committed in grant-
ing the new trial, it must render judgment absolute upon the right
of the appellant; and after the judgment has been remitted to the
court below, an assessment of damages, or any other proceeding
requisite to render the judgment effectual, may be had in the latter
court. (Code of Civil Pro. § 194. See Id. § 191, subd. 1.) The lan-
guage of the statute is imperative, and leaves the court no alterna-
996 New Triats anp Apprats.

 

The temittitur,

 

tive on affirmance but to order judgment absolute against the appel-
lant. (Godfrey v. Moser, 66 N. Y. 250; Snebley v. Conner, 78 N.
Y. 218; Hitchings v. Van Brunt, 38 N. Y. 335; Wilber v. Sisson,
54.N. Y. 121, 125; Cobb v. Hatfield, 46 N. Y. 583; Lake v. Nath-
ans, 67 N. Y. 589 ; [Miscockh v. Harris, 80 N. Y. 402.)

The judgment must be absolute against the appellants upon the
whole matter. and right in controversy in the action, Thus, if an
appeal is taken by the plaintiff from an order granting a new trial of
an action wherein the answer sets up a counterclaim, the defendant,
on aftirmance of the order, will be entitled to such a judgment as
the facts alleged in his answer demand. (Hiscock v. Harris, 80 N.
Y. 402.) But this ductrine does not apply to a counterclaim
improperly pleaded in a case where a counterclaim is unauthorized,
nor toa counterclaim against the State. (People v. Dennison, 84
N. Y. 272.)

Ordinarily, where an appeal is taken from an order granting a
new trial upon the facts in an action tried by a jury, the court will
dismiss the appeal upon the ground that the order was not appeal-
able, and that the attempted appeal brought nothing before the court
forreview. (See Wright v. Hunter, 46 N. Y.409 ; Sands v. Crooke,
46 N. Y. 564; Dichson v. Broadway & Seventh Ave. R. R. Co., 47
N. Y. 507; Downing v. Kelly, 48 N. Y. 483; Rogers v. Long
Island R. R. Co., 49 N.Y. 655 ; Kirkland v. Leary, 50 N. Y. 678;
Courtney v. Baker, 60 N. Y.1; Whitson v. David, 81 N. Y. 645;
Bronk v. New York & New Haven R. R. Co. 95 N. Y. 656.) But
while that course may be pursued, thecourt may deem that the ends
_ of justice will be the best subserved by an affirmance of the order
and the rendition of judgment absolute. (See Snebley v. Conner,
78 N. Y. 218; Last River Bank v. Kennedy, 4 Keyes, 279; Jame-
son Vv. Brooklyn Skating Rink Association, 54 N. Y. 673.)

SECTION IL.
Tue Remirrirur.

Form and contents.—The judgment or order of the Court of
Appeals must be remitted to the court below to be enforced accord-
ing to law. (Code of Civil Pro. § 194.) If the appeal is from a
judgment rendered by the General Term of the Court of Common
Pleas upon an appeal thereto from tlie General Term of the City
Tue Remirriror. 297

 

_When the Court of Appeals loses jurisdiction,

 

oa of New York. the judgment or order of the Court of Appeals
must be remitted to and enforced by the City Court. (Id. §
3195.)

The remittitur must contain a copy of the judgment of the Court
of Appeals, and the return made by the clerk below, and must be
sealed with the seal and signed by the clerk of the Court of Appeals.
(Rule 14, Ct. App.)

Staying the filing of the remittitur.—When a decree or
order is aflirmed by default of the appellant, the remittitur cannot
be sent to the court below, unless the Court of Appeals otherwise
directs, until ten days after notice of the affirmance has been served -
on the attorney of the appellant. Service of the notice must be
proved to the clerk by affidavit, or by the written admission of the
attorney on whom it was iivol, (Rule 15, Ct. App.)

If for any reason a party desires to stay the filing of the remitti-
tur he may obtain an order from any judge of the Court of Appeals
directing such stay, which will be effectual to prevent a regular fil-
ing although the remittitur is at the time in the hands of the clerk
of the court below, if it has not been actually filed. (Cushman v.
Hatfield, 52 N. Y. 653; 15 Abb. N. 8.109. But see Lawrence v.
Bank of the Republic, 6 Rob. 497.) A filing in violation of an order
of the court is practically no filing. (Marshall v. Macy, 5 Week.
Dig. 90.) The order may be made ex parte. (Cushman v. Hatfield,
52 N. Y. 653; 15 Abb. N. 8. 109.)

When the Court of Appeals loses jurisdiction.—The Court
of Appeals does not lose jurisdiction of a cause brought there on
appeal, until the remittitur has been filed in the court below and
that court has taken some action thereon. (People v. Village of
Nelliston, 79 N. Y. 638.)

Amending remittitur.— After the remittitur has been filed, but
before any action has been taken thereon by the court below, the
Court of Appeals has jurisdiction to make an order so correcting
the remittitur that it shall conform to the actual decision of that
court. This order may be made ew parte. (People v. Village of
WNelliston, 79 N. Y. 688. See Palmer v. Lawrence, 5 N. Y. 455.)

But before it can be so amended after filing in the court below,
it must be returned to the Court of Appeals. (Salmon v. Gedney,
298 New Triats anp Apreats.

 

Judgment below on the remittitur.

 

75 N. Y. 479.) That court may compel such return by an ew parte
order. (People v. Village of WNelliston, 79 N. Y. 638.) But
after the remittitur has been filed and acted upon by the court below,
any party desiring the return of the remittitur for any purpose
should apply to the lower court for an order vacating the proceed-
ings there and directing such return. (See Jones v. Anderson, 71
N. Y. 599; Wilmerdings v. Fowler, 15 Abb. N.S. 86.) The assent
or direction of the Court of Appeals, that the remittitur be
returned, evidenced by a resolution or order, may be necessary on
the application to the court below. (Vermilye v. Seldon, 6 How.
41; 3 Sandf. 683.)

SECTION III.

JUDGMENT BELOW ON THE REMITTITUR.

After the remittitur has been sent down to the court below, and
filed with the clerk, notice of the filing should be given to the
adverse party, and a motion should then be made in the court below,
upon the usual notice, for an order that the judgment of the Court
of Appeals be made the judgment of thecourt below. (See Seacord
v. Morgan, 17 How. 394, 398; Chautauqua Co. Bank v. White, 23
N. Y. 347; Union India Rubber Co. v. Babcock, 4 Duer, 620; 1
Abb. 262; Young v. Brush, 18 Abb. 171.) The order will be
granted as of course, andshould be regularly entered. The omission
to obtain and enter such order, is, however, a formal irregularity
which the court may at any time correct, by directing it to be
entered nunc pro tune. (Chautauqua Co. Bank v. White, 23 N.
Y. 347. See Judson v. Gray, 17 How. 289.)

The judgment entered in the court below must not be broader
than the judgment of the appellate court. If it goes beyond it, it is
to that extent of no effect. (Freeman v. Barber, 1 Hun, 433.) If
the judgment of the appellate court fails to determine any part of
the subject of appeal, the defect cannot be supplied in the court
below. (AfeGregor v. Bucll, 1 Keyes, 153; 38 How. 450.)
Whether it is necessary to give notice of the entry of judgment ~
does not seem to be clear. (See Rogers v. Schmersahi, 4 Wun,

623.)
No judgment should be entered upon the remittitur of the Court
APPLICATION FoR A RE-ARGUMENT. 299

 

Application for a re-argument.

 

of Appeals reversing an interlocutory order. (Brown v. Leigh, 50

N. Y. 427.)

ARTICLE IX.

RE-ARGUMENT.

SECTION I.
APPLICATION FOR A ReE-ARGUMENTS

A motion for a re-argument must be made cn a notice to the
adverse party, stating briefly the ground upon which the re-argu-
ment is asked. (Rule 23, Ct. App.)

The motion must be founded upon papers showing clearly that
some question decisive of the case, and duly submitted by counsel,
has been overlooked by the court, or that the decision is in conflict
with an express statute, or with a controlling decision, either over-
looked by the court, or to which the attention of the court was not
drawn through the neglect or inadvertence of counsel. Unless the
motion papers show some one of these facts, the motion will not be
entertained. (Mount v. Mitchell, 32 N. Y. 702; Marine Nat.
Bank v. Nat. City Bank, 59 N. Y. 67, 73.)

The motion must be submitted on printed briefs, stating concisely
the points supposed to have been overlooked or misapprehended by
the court, with proper reference to the particular portion of the case,
and the authorities relied upon. Counsel will not be heard orally.
(Rule 23, Ct. App.)

The fact that the court has not given a written answer in the
opinion to every suggestion made by counsel for the defeated party,
or has not reviewed every case cited, is not of itself a sufficient
ground for a motion of this nature. ‘Counsel must assume that
the court is familiar with and not inattentive to its own decisions,
and have with reasonable intelligence and industry considered their
arguments, oral and printed, that are presented for its consideration.”
(Kamp v. Kanip, 59 N. Y. 212,229; Terry v. Wait, 56 N. Y. 91,
94.)

The omission of a point on the argument, which, if considered
upon the appeal, would be fatal to the judgment, is no ground for
re-argument if there is no exception in the record raising the point,
800 New Trrats anp APPEALS.

 

Application for a re-argument.

 

as the re-argument, if permitted, would be upon the original record,
and the point not being there presented, could not be con-
sidered. (Hunt v. Church, 73 N. Y. 615.) And as a general
rule the omission of the appellant to present on the argument
a point appearing in the case is not a ground for a re-argument,
and the court will ordinarily apply the rule that an exception
not raised upon the argument is to be deemed abandoned.
(Rogers v. Laytin, 81 N. Y. 642.) The motion will not be granted
unless something has been overloooked by the court which is mate-
rial to the result, or some mistake has been made which must have
affected the conclusions reached by the appeliate court. (Id.) If
the appellant has stipulated for judgmert absolute in case of affirm-
ance, the fact that injustice will result to the appellant by reason of
such judgment is no ground for re-argument. (See Godfrey v.
Moser, 66 N. Y. 250.)

A party intending to move for a re-argument should apply to the
appellate court, or to a judge thercof, for an order staying the filing of
the remittitur in the court below pending the decision of the motion,
(see ante, p. 279), or, if the remittitur has been already filed and the
usual order entered theron, should obtain an order directing its return
to the appellate court. ( Wilmerdings v. Fowler, 15 Abb. N.S. 86;
Cochran’s Executor v. Ingersoll, 66 N. Y. 652.) A re-argument will
not be ordered while the jurisdiction of the cause is vested in the
court below. (Id.) The return of the remittitur will be ordered by
the court below upon a proper appplication for that purpose. (See
ante, p. 298.)
CHAPTER III.
APPEALS TO THE GENERAL TERM OF THE SAME COURT.

ARTICLE I.

JURISDICTION OF THE GENERAL TERM.

SECTION I.
GeEneraL Nature of THE JURISDICTION.

Berore the Code of Procedure was enacted, a review of an order
or judgment of a Special Term of the Supreme Court by a General
Term of the same court was called a re-hearing instead of an appeal.
(See Gracie v. Freeland, 1 N. Y. 228.) Under the Code this review
is called an appeal, and the power exercised by the court partakes
both of the nature of a re-hearing and of an appeal. Ina strict sense,
the General Term of the Supreme Court in reviewing a judgment
entered upon a decision of a referee, in an action originally com-
menced in that court, does not exercise a mere appellate jurisdiction.
The cause is still in the court in which it originated ; and errors dis-
closed by the record, though not presented formally by an exception,
may be corrected where a failure to correet the error would work
injustice to the appellant. (See Mandeville v. Marvin, 30 Hun,
282, 287.) The Supreme Court is one court exercising its jurisdic-
tion through the Special Term, Circuits and ‘General Termes and the
General Tare, except as lienited by the laws, have all the power and
all the general jurisdiction of the Supremé Court. (See Syracuse
Savings Bank v. Syracuse, Chenango, etc., I. 2. Co., 88 N. Y. 110,
115 ; Anonymons v. Anonymons, 10 How. 853 ; Salon v. Gedney,
75 N.Y. 479.) Upon an appeal from an ‘order of the Special Term
the General Term has all the power of the Special Term to grant
affirmative relief to a party opposing the motion. (Bennett v. Lake,
47 N. Y. 98; Howard v. Freeman, 7 Rob..25 ; 3 Abb. N. Y. 292.)
302 New Triatg ann APprats.

 

Jurisdiction on appeal from a final judgment.

 

So the General Term of the Supreme Court on affirmance of an
order overruling a demurrer has all the power of the Special Term
to designate what kind ofan interlocutory judgment and final judg-
ment shall be entered. (Smith v. Rathbun, 85 N. Y. 660.) It las
the power to attach any conditions it sees fit to the affirmance of an
order of the Special Term, when the vacating or affirmance of the
order is within its discretion. (Syracuse Savings Bank v. Syracuse,
Chenango, ete., R. R. Co., 88 N. Y. 110.) So upon the reversal of
an order denying a motion to opena default, the General Term may
direct an entry of such an order opening the default as the Special
Term should have granted. (Anawer v. Globe Mut. Life Ins. Co.,
14 Jones & Sp. 370.)

It will be seen, from the illustrations given, that the General
Term, on appeal, exercises to a certain extent both original and appel-
late jurisdiction. But, as will be seen hereafter, the General Term
cannot invade the province of the trial court, determine controveried
questions of fact, and render final judgment upon such determina-
tion. The trial of causes is no part of the functions of an appellate
tribunal. (See Whitehead v. Kennedy, 69 N. Y. 462; Thaule v.
Kreckler, 17 Hun, 338 ; Cuff v. Dorland, 57 N. Y. 560; Purchase
v. Matteson, 25 N. Y. 211; 25 How. 161.)

SECTION II.
JURISDICTION UPON APPEAL FROM A FINAL JUDGMENT.

The Code provides for an appeal to the General Term of the
Supreme Court, of a Superior City Court (Code of Civil Pro. § 1346)
and of the City Court of New York (Id. § 3188), from a final judg-
ment rendered in the same court. The question as to what judgments
are final has already been considered in connection with the subject
of appeals to the Court of Appeals (see ante, p. 210) ; and the term
“final judgment” has the same signification in the one case as in the
other. (Lawrence v. Farmers’ Loan & Trust Co., 6 Duer, 689; 15
How. 57; Bucking v. Hauselt, 9 Hun, 633.) But it had been held
that it is competent for the parties to waive an objection that a judg-
ment was prematurely entered, and that the General Term acquires
jurisdiction to render a binding decision where no objection is taken
that the appeal is premature. (D’Lvernois v. Leavitt, 8 Abb. 59;
see Griffin v. Cranston, 5 Bosw. 658.)
APPEAL FROM AN INTERLOCUTORY JUDGMENT. 303

 

Judgment pursuant to report or decision—Judgment upon a verdict.

 

The specification in the notice of appeal from a final judgment of
an interlocutory judgment or an intermediate order, and the effect
thereof, has already been considered. (See ante, p. 63.)

Subject to the exceptions in case of judgments by consent,
default, etc. already noticed (ante, p. 9), an appeal lies to the
General Term from any final judgment, regularly entered ; but the
appellate jurisdiction of the court depends upon the mode in which
the cause was tried below.

Judgment pursuant to report or decision.—Where the
judgment was rendered upon a trial by a referee, or by the court
without a jury, the appeal may be taken upon questions of law, or
upon the facts, or upon both. (Code of Civil Pro. § 1346, subd. 1;
1d. § 3188.)

A non-suit in a case in which a jury was impanneled is a trial by
the court within the meaning of the section of the Code cited.
(Van Doren v. Horton, 19 Hun, 7, 9.)

The questions reviewable on the appeal will be considered here-
after.

Judgment upon a verdict.—Where the judgment was ren-
dered upon the verdict of a jury the appeal may be taken upon ques-
tions of law. (Code of Civil Pro. § 1346, subd. 2; Id. § 3188.) An
appeal from the judgment alone brings up questions of law only,
and the verdict, if there is any evidence to sustain it, is conclusive.
(Cheney v. New York Cent. @ H. Rk. RB. R. Co., 16 Hun, 415, 418 ;
Allen v. Highmie, 14 Hun, 559 ; Bostwick v. Barlow, 14 Hun, 177;
Boos v. Mutual Life Ins. Co., 64 N. Y. 236.)

The questions reviewable on the appeal will be considered here-
after.

SECTION III.
JURISDICTION UPON AN APPEAL FROM AN INTERLOCUTORY JUDGMENT.

An appeal may be taken to the General Term from an interlocu-
tory judgment rendered at a Special or Trial Term of the same court
or in the Supreme Court, at aterm of the Cireuit Court. (Code of
Civil Pro. §$ 1349, 3189.)

Thus, where.the court on a trial at Special Term finds that the
plaintiff is entitled to recover from the defendant such sum as may
304 New Tears anp APPEALS.

 

Jurisdiction upon appeals from orders. ‘

 

be found due him upon the coming in of the report of a referee, and
appoints a referee to take the account and report to the court, an
appeal lies to the General Term from an interlocutory judgment to
that effect. (Victory v. Blood, 93 N. Y. 650; and see Walker v.
Spencer, 86 N. Y. 162.)

And where both parties treat an order as an interlocutory judg-
ment and have joined’ in the settlement of a case and exceptions
(Hathaway v. Russell, 14 Jones & Sp. 103), or where, upon an
appeal from an order sustaining a demurrer, it is agreed by counsel
upon the argument that it shall be considered an appeal from an
interlocutory judgment ( Welch v. Platt, 32 lun, 194), the appeal
will be entertained.

While no appeal lies from an order sustaining or overruling a
demurrer (Parsons v. Hayes,18 Jones & Sp. 29; Campbell v.
New York Cotton Exchange, 15 Jones & Sp. 556; Cambridge Val-
ley Bank v. Lynch, 76 N. Y. 515), an appeal would seem to lie from
an interlocutory judgment entered upon the order in any case. (See
Miller v. Sheldon, 15 Hun, 220; Garner v. Harmony Mills, 6 Abb.
N. C. 212; Lacustrine Fertilizer Co. v. Lake Guano, ete., Co., 16
Hun, 484.) Ithas, however, been doubted whether an appeal lies
from an interlocutory judgment entered upon a decision giving the
defeated party leave to plead over or amend, as such an appeal is in
substance an appeal from the order that the party succeeding have
judgment unless the defeated party plead over or amend. (Zrust &
Deposit Co. v. Pratt, 25 Hun, 23; and see Garner v. Harmony
Mills, 6 Abb. N. C. 212, 223; Cambridge Valley Bank v. Lynch,
96 N. Y. 515,517; Church v. American Rapid Tel. Co., 15 Jones
& Sp. 558.)

SECTION IV.
JURISDICTION UPON APPEALS FROM ORDERS.

In general.—An appeal may be taken to the General Term of
the Supreme Court, or of a Superior City Court from an order made
in an action, upon notice, at a Special Term or Trial Term of the
same court, or, in the Supreme Court, at a term of the Circuit Court,
in either of the following cases :

1. Where the order grants, refuses, continues or modifies a pro-
visional remedy.

 
JURISDICTION UPON APPEALS FROM ORDERS. 305°

In general.

 

2. Where it grants or refuses a new trial; except that where
specific questions of fact, arising upon the issues, in an action
triable by the court, have been tried by a jury, pursuant to an order
for that purpose, as prescribed in section 971 of the Code, an appeal
cannot be taken from an order granting or refusing a new trial upon
the merits.

3. Where it involves some part of the merits.

4. Where it affects a substantial right.

5. Where, in effect, it determines the action, and prevents a judg-
ment from which an appeal might be taken.

6. Where it determines a statutory provision of the State to be
unconstitutional ; and the determination appears from the reasons
given for the decision thereupon, or is necessarily implied in the
decision.

An order made upon a summary application after judginent is
deemed to have been made in the action within the meaning of this
section. (Code of Civil Pro. § 1847.)

An appeal to the General Term of the City Court of New York,
may also be taken from an order at a Special Term or a Trial Term
thereof, in a case where an appeal may be taken to the General Term
of the Supreme Court, as prescribed in the section cited above. (Id.
§ 3189.)

These provisions of the Code contemplate an appeal directly
from the order, independent of an appeal from the final judgment
(See Rice v. Childs, 28 Hun, 303, 307); and where a judgment
entered pursuant to an order is regular—for example, a judgment of
dismissal entered on an order dismissing a complaint for want of
prosecution—an uppeal from the judgment is irregular and unneces-
sary; and where the appeal is from the order also, the appeal from
the judgment should be dismissed, even if the order be reversed.
(James v. Shea, 28 Hun, 74.)

The Code provisions cited are broad in their application, and
there are few questions of practice which, under existing decisions
relating to that subject, may not be presented to the General Term
for consideration. (Pacific Mail Steamship Co. v. Irwin, 67 Barb.
277, 280; Sprague v. Dunton, 14 Hun, 490.)

No appeal lies from an ew parte order, although it is made by
the court. The remedy is by motion, on notice and the proper
papers, to Bet aside the ex parte order objected to, and, if the motion
306 . New Trrats anp APFEALs.

 

The question of discretion

 

is denied, to appeal from the order of denial. (People v. Common
Council of Buffalo, 30 Hun, 636.)

No appeal lies from an order refusing judgment upon a pleading
as frivolous. (Code of Civil Pro. § 537. See Joseph Dixon
Crucible Co. v. New York City Steel Works, 57 Barb. 447; 9 Abb.
N. 8. 195.

The question of discretion.—Although the Court of Appeals
is limited in the review of orders to such as do not involve any ques-
tion of discretion, no such limitation is imposed upon the General
Term. (Hanover Fire Ins. Co. v. Tomlinson, 58 N. Y. 215.) And
it may be stated as a universal rule, that an order which is within
the provisions of the Code, is not rendered non-appealable by the
fact, that the decision of the motion involved the exercise of discre-
tion.

If the order falls within any of the provisions authorizing an
appeal, it is appealable, whether it involves a question of discretion
or not. (Id.; Levermore v. Bainbridge, 56 N. Y. 72, 76; 47 How.
354,357; Gale v. Mew York Cent. & H. R. Le. Re. Co., 76 N. Y. 594,
595; Sprague v. Dunton, 14 Hun, 490; Loudon v. Loudon, 65
How. 411; Wehresheimer v. Bowe, 3 Civ. Pro. R. 868; Brownell
v. National Bank of Gloversville, 13 Weekly Dig. 371 ; Hughes v.
Chicago, ke., R. R. Co., 13 Jones & Sp. 114; Martin v. Windsor
Hote Co., 70 N. Y. 101.) The fact that an order involved a ques-
tion of discretion may have weight in determining whether the order
falls within the provisions authorizing an appeal. But it is the fact
that there is no provision authorizing an appeal, rather than the
fact that the order involved discretion, that renders the order non-
appealable.

The question as to whether the exercise of discretion precludes
an appeal, should not be confounded with the question, as to what
weight the General Term will give to the fact that the order was
one calling for the exercise of the discretion of the court which
made it. (See Morrison v. Agate, 20 Hun, 23, 25.) But even in
matters involving discretion, while the General Term is slow to
interfere with the exercise of that discretion (Id.) ; its power to do so
is unquestionable. (People v. Globe Mut. Ins. Co., 27 Hun, 539 ;
Douglass v. Haberstro, 82 N. Y. 572; Matter of Duff, 41 How.
350; 10 Abb. N.S. 416.)

 
Jurispicrion upon APPEALS FROM ORDERS. 307

 

Orders as to provisional remedies.

 

 

Orders as to provisional remedies.—The provision of the
Code authorizing an appeal from an order which grants, refuses,
continues or modifies a provisional remedy (Code of Civil Pro.
§ 1245, subd. 1), refers to orders made upon notice. The warrant of
attachment, which is an order in the action (see Houghton v. Ault,
16 How. 77); the order of arrest, and the injunction order, are ordi-
narily granted or refused, in the first instance, upon an ex parte appli-
cation, and from the order made upon such an application no appeal
lies. The Code now provides, in case of each of the orders men-
tioned, for an application to vacate the order (See Code of Civil
Pro., §§ 567-8 ; 627, 682-3) ; and from the order made upon such an
application, upon notice, an appeal lies to the General Term, in a
case where the application is founded upon the papers upon which
the original order was granted (Allen v. Meyer, 73 N. Y. 1;
Achelis v. Kalman, 60 How. 491), as well as where the application
is founded upon new affidavits.

A receiver can, ordinarily, be appointed only upon notice, and
the order does comes within the provision authorizing an appeal.

The subject of parties to an appeal has already been considered
(see ante, p. 31); but it may be added in this connection that a
person who may apply to vacate or modify the order granting a
provisional remedy has a right of appeal from the order denying his
motion. (See National Shoe & Leather Bank v. Mechanics’
Nat. Bank, 89 N. Y. 440; Steuben County Bank v. Alberger, 78
N. Y. 252; Smith v. Davis, 29 Hun, 306.) And where an injune-
tion order restrains one defendant from paying money to another
defendant, the latter may appeal, although he is not restrained by
the order from receiving the money. Tue order does, in effect,
restrain him from receiving the money. (Landers v. Fisher, 24
Hun, 648.)

An order exonerating a sheriff as official bail, made after the
expiration of the time to answer in an action to charge him as such,
is appealable to the General Term. (Douglass v. Haberstro, 82 N.Y.
572; 21 Hun, 320; see Columbia Ins. Co. v. Force, 8 How. 353.)

An appeal may be taken from an order refusing to vacate an
attachment, after the attached property or the proceeds thereof have
been applied in payment of the judgment, if the motion was made
before such application. (Market Nat. Bank v. Pacific Nat. Bank,
80 Hun, 50. Sce Parsons v. Sprague, id. 19.)
808 Nrw Triats anp APpraL.s.

 

Orders involving some part of the merits.

 

_ Orders granting or refusing a new trial.—The provision
authorizing an appeal from an order granting or refusing a new trial,
includes not only an order made on a motion upon the minutes and
at Special Term upon a case; but also upon a motion founded upon
surprise, newly discovered evidence, misconduct of a juror, and the
like, made after the entry of the judgment. (Zracey v. Alimyer, 46
N. ¥. 598.)

In case of a trial by jury, the only mode of presenting the facts to
the General Term for review is by appeal from an order made upon
a motion for a new trial. (Code of Civil Pro. § 1846, subd. 2; Mor-
rison v. New York d& New Haven RB. R. Co.,.382 Barb. 568; Mor-
ange v. Morris, 20 How. 25%, 262.) This motion is made upon the
minutes of the trial judge or at Special Term. The appeal may be
from the order only, and may be taken after the entry of judgment
in the action (Lane v. Bailey, 30 How. 76; 1 Abb. N.S. 408; 45
Barb. 119) ; or the appeal may be taken from the judgment and order,
for the purpose of bringing up for review questions both of law
and of facet. (See Boos v. World. Mut. Life Ins. Co., 64 N. ¥. 236;
Bostwick v. Barlow, 14 Hun, 177, 178.)

Orders involving some part of the merits.—The term “ mer-
its” has been defined to mean the strict legal rights of the parties,
as contradistingnished from the mere questions of practice which
depend upon the discretion or favor of the court. (St. John v.
West, 4 How. 329; Tallman v. Hinman, 10 How. 89; Tracy v.
Steam Faucet Co. 1 E. D. Smith, 3849.) And it has been said that
every order in an action which passes upon and determines a posi-
tive legal right of either party, is appealable under a provision
authorizing an appeal from orders involving the merits. (JLegrath
v. Van Wyck, 3 Sandf. 750.) Thus where a judgment has been
obtained in violation of an express provision of the Code, an order
made upon an application to vacate the jndgment involves the mer-
its and is appealable. (Zracy v. New York Faucet Co, 1 E. D.
Smith, 349.) A party has a right to have the remedies provided by
law to secure the attendance of material and uecessary witnesses, or
the production of material and necessary evidence, enforced in his
behalf, when he has been vigilant and done all which it is incum-
bent on him to do to obtain such attendance or production, and an
order which, without fault or laches on his part, prevents those rem-
JURISDICTION UPON APPEALS FROM ORDERS. 309

 

Orders involving some part of the merits.

 

edies being made effectual, necessarily involves the merits. (Lafarge
v. Lafarge, 14 How. 26.)

An order refusing a substitution of parties in place of a deceased
party does not necessarily involve the merits. (St. John v. West, 4
How. 329.) And so of an order made on an application to allow a
new party to be substituted. (McGown v. Leavenworth, 2 KE. D.
Smith, 24. See Sayre v. Frazer, 47 Barb. 26.) But an order
allowing an action to be continued in the name of asurviving plaint-
iff and the heir of a deceased plaintiff, is appealable. (Sz. John v.
Croel, 10 How. 253. See also Farnham v. Benedict, 29 Jun, 44.)
An order made upon an application for leave to put in a supple-
mental answer setting up a new defense involves the merits. (/ar-
rington v. Slade, 22 Barb. 161; Bowen v. Irish Presbyterian Con-
gregation, 6 Bosw. 245.) And so of an order striking out as irrele-
vant one of several defenses. (Trustees of Penn Yan v. Forbes, 8
How. 285; see Briggs v. Bergen, 23 N. Y. 162; also Harris v.
Hammond, 18 How. Pr. 123.) But an order refusing to strike out
matter from a pleading as irrelevant and redundant does not involve
the merits. (Bedell v. Bedell, 4 How. 482; Whitney v. Waterman,
4 How. 318; Field v. Stewart, 41 How. 95. But see Vehresheimer
v. Bowe, 3 Civ. Pro. R. 368.) An order refusing leave to serve an
amended pleading does not necessarily involve the merits. (Saltws
v. Genin, 19 How. 233; 10 Abb. 478.) But where the plaintiff is
allowed to amend by introducing a new cause of action, or by per-
fecting a cause of action imperfectly alleged, the defendant should
also be allowed to amend unconditionally, and an order refusing that
right isappealable. (Union Bank v. Mott, 19 How. 267; 10 Abb.
42.) ‘An order granting leave to amend a complaint by inserting a
cause of action barred by the statute of limitations involves the mer-
its. (Sheldon v. Adams, 18 Abb. 405 ; 27 How. 179; 41 Barb. 54;
Quimby v. Chaplin, 27 Hun, 611.) But it has been held that an
order allowing an amendment to a pleading is not appealable unless
some absolute right of the appellant has been violated. (Schermer-
horn v. Wood, 30 How. 316.) The tendency is, however, toward a
review of orders made upon an application toamend. (Ford v. Lord,
35 How. 321; Union National Bank of Troy v. Bassett, 3 Abb.
Pr. (N. 8.] 859; Barnett v. Meyer, 10 Hun, 109; Kent v. Popham,
13 Weck. Diy. 489 ; see Knapp v. Fowler, 26 Hun, 200 ; Mew York
Milk Pan Oo. v Remington’s Agricultural Works, 25 Hun, £75 ; 89
N. Y. 22; Abbott v. Jewett, 25 Hun, 603) In several of the cases
310: New Triats anp APPEALS.

 

Orders determining the unconstitutionality of a statute.

 

cited the appeal was entertained without any question being raised
as to the appealability of the order.

Motions addressed to the favor of the court do not usually result in
an order which may be appealed from. Thus an order giving leave
to renew a motion is not appealable. (Smith v. Spaulding, 30 How.
339.) And where a motion is made to the court to open a default
as a mere favor to the moving party, the power of the court being
conceded, an order granting or denying the motion, either absolutely
or on terms will not be reviewed upon appeal. (Foshay v. Drost,
4 Bosw. 664; Whitaker v. Defosse,7 Bosw. 678 ; Mead v. Mead, 2
E. D. Smith, 223; Millard v. Van Ranst, 17 Abb. 319, note.) The
General Term in the First Departinent has held, however, that an
order denying an application to open a default in not serving an
answer, in a case where a valid defense to some portion of the plaint-
iffs claim is shown, is appealable as involving a substantial right.
(Bowe v. Brown, 23 Daily Register, No. 66 [March 20, 1883]; see
Loshay v. Drost, 4 Bosw. 664.)

Where a referee is appointed by an interlocutory judgment to
take proofs, no appeal lies from an order refusing to confirm his
report, based upon the insufficiency thereof, and requiring the referee
to furnish more specific facts. (ent v. Quicksilver Mining Co., 23
Hun, 199.)

Orders affecting a substantial right.—The question as to
what orders affect a substantial right has already been considered in
connection with the subject of appeals to the Court of Appeals. (See
ante, p. 215.)

Where an order affects a substantial right an unqualified right
exists to appeal to the General Term, although the relief applied for
involved the exercise of discretion. (See ante, p. 306; Hand v. Bur-
rows, 15 Hun, 481, 483.)

Orders determining the action and preventing final judg-
ment, are appealable under subdivision 5 of section 1847 of the
Code of Civil Procedure. What orders fall within this class have
been elsewhere considered. (See ante, p. 232.)

Orders determining the unconstitutionality of astatute.—
The Code gives the right to appeal to the General Term from an
order which determines a statutory provision of the State to be
JURISDICTION UPON APPEALS FROM ORDERS. 311

 

Orders made out of court,

 

unconstitutional, where the determination appears from the reasons
given for the decision thereupon or is necessarily implied in the
decision. (Code of Civil Pro. § 1347, subd. 6.) The Code gives the
same right of appeal to the Court of Appeals from similar orders of
the General Term (Id. § 190, subd. 2); and the decisions as to the
extent of the jurisdiction conferred in the one case apply to the
other. (See ante, p. 236.)

Orders made upon a summary application after judgment.
—The nature of these orders has already been considered. (Sce
ante, p. 237.) An order made upon a summary application after judg-
ment is deemed to have been made in the action within the mean-
ing of the section of the Code authorizing appeals to the General
Term of the same court from orders. (Code of Civil Pro. 8§ 1347,
3189.) That is, if the order if made before judgment, would fall
within any of the provisions authorizing an appeal, it is appealable,
although made upon a summary application after judgment.

Orders made out of court.—An appeal may also be taken to
the Generai Term of the Supreme Court or of a Superior City Court
from an order imade in an action, upon notice, by a judge out of
court, in a case where an appeal might have been taken as pre-
scribed in section 1347 of the Code, if the order had been made by
the court. (Code of Civil Pro. § 1348.) This provision also applies
to an order made by a judge of the City Court of New York. (Id.
§ 3189.)

The section cited is particularly applicable to orders made in the
first judicial district, as in this district a motion which elsewhere
must be made in court may be made to a judge ont of court, except
for a new trial on the merits. (Id. § 770.) Except in that district,
the orders which may be made by a judge out of court upon notice
are not numerous. An ex parte order may, however, be vacated or
modified upon notice, by the judge who made it. (Id. § 772.) The
decision of a judge in settling interrogatories to be annexed to a
commission to take testimony is an order, and as such settlement is
made upon notice (Id. § 891), the order is appealable if it otherwise
falls within the provisions authorizing an appeal, as for example,
when it affects a substantial right. (Uline v. Mew York Cent. & H.
R. RB. BR. Co., 79 N. ¥. 175.)

The order must have been made upon notice. No appeal lies
312 New Triats anp APPEALS.

 

Orders made in special proceedings.

 

from an ex parte order. (People v. Common Council of Buffalo,
30 Hun, 636.) And the appeal cannot be taken until the order is
entered in the office of the proper clerk. (Code of Civil Pro. § 1304;
see ante, p. 44.)

Orders made in special proceedings.—An appeal may be
taken to the General Term of the Supreme Court, or of a Superior
City Court, from an order affecting a substantial right, made in a
special proceeding, at a Special Term or a Trial Term of the same
court, or in the Supreme Court, at aterm of Circuit Court; or made
by a judge of the same court in a special proceeding instituted
before him pursuant to a special statutory provision; or instituted
before another judge, and, transferred to, or continued before him.
(Code of Civil Pro. § 1356.) The section cited applies to every
special proceeding. (People v. Perry, 16 Hun, 461, 464.) That is,
it applies to the ordinary special judicial proceedings, under the
general provisions of law regulating the practice of courts of justice.
It will not be construed to abrogate or change the provisions of a
‘special law passed for particular cases. (Ifatter of Delaware &
Hudson Canal Co., 69 N.Y. 209.) And the section cited does not
confer the right of appeal from an order in a case where it is spe-
‘cially prescribed by law that the order cannot be reviewed. (Code
of Civil Pro. § 1361.)

A special proceeding is defined as a prosecution, other than
by an action, for the enforcement or protection of a right, the
redress or prevention of a wrong, or the punishment of a public
offense. (Id. § 1334. See Matter of Jetter, 78 N.Y. 601, 605.) A
proceeding to punish for an alleged criminal contempt in violating an
order granted in a civil action is a civil special proceeding within
the meaning of section 1356 of the Code, above cited (People v.
Dwyer, 90 N.Y. 402); and so isa proceeding under the act of 1831
to abolish imprisonment for debt (People v. Donohue, 15 Hun, 418) ;
or a proceeding by water-works companies to acquire lands under
the acts of 1873 and 1876 (Matter of Waverly Water- Works Co.,
16 Hun, 57, 59); or a proceeding to vacate an assessment in the city
of New York, under the act of 1858. (Matter of Jetter, 78 N. Y.
601; and see Matter of Kingsbridge Road, 4 Hun, 599.)

An application for admission as an attorney is a special proceed-
ing. .(Matter of Cooper, 22 N. Y. 67; 20 How. 1; 11 Abb. 301.)
And so is a reference of a claim against an executor under the
TIME WITHIN wHicH To APPEAL. 313

 

Time within which to appeal.

 

statute (Boyd v. Bigelow, 14 Wow. 511), or an application to set
aside a judgment by confession. (Belknap v. Walters, 11 N. Y.
477.

The proceedings provided for by Chapter 16, Title 2, and Chapter
17 of the Code are specifically designated special proceedings, and
under the statute and decisions above cited an appeal lies from an
order affecting a substantial right, made in any of those proceedings,
unless it is specially prescribed in respect to the order that it cannot
be reviewed. (See Poole v. Johnston, 32 Hun, 215, 218.)

é

ACTICLE II.

TAKING THE APPEAL AND STAYING EXECUTION.

SECTION I.
Time WITHIN wHIcH To APPEAL.

An appeal to the General Term of the Supreme Court, or of a
Superior City Court, must be taken within thirty days after service
upon the attorney for the appellant of a copy of the judgment or
order appealed from, and a written notice of the entry thereof.
(Code of Civil Pro. § 1351.) In case of an order made in a special
proceeding the time within which to appeal is the same, but the
copy order and notice of entry is served upon the appellant, or, if
he appeared upon the hearing by an attorney at law or an attorney
in fact, upon the person who so appeared for him. (Id. § 1359.)

The rule as to appeals to the General Term of the City Court of
New York from a final judgment is the same as on appeals to the
General Term of the Supreme Court; but an appeal from an inter-
locutory judgment or an order must be taken within ten days after
service of a copy thereof and written notice of entry. (Id. § 3190.)

(See ante, pp. 54-62.)
814 New Triats anp APPEALS.

 

Staying execution of judgment or order appealed from.

 

SECTION II.
Novick or APPEAL.

The appeal must be taken by serving upon the attorney for the
adverse party, and upon the clerk with whom the judgment or order
appealed from is entered, a written notice to the effect that the
appellant appeals from the judgment or order, or from a specified
part thereof. (Code of Civil Pro. § 1300.)

The requisites of the notice, the mode of its service, and the
power of the court to amend it after service, have been considered
elsewhere. (See ante, pp. 62-68, 117.)

SECTION III.
Stayine Execution or JUDGMENT OR ORDER APPEALED FROM.

No security is necessary to perfect an appeal to the General
Term of the same court, either from a judgment or from an order.
(Code of Civil Pro. $§ 1851, 3190; see ante, p. 70.) But except
where it is otherwise specially prescribed by law, the appeal does not
stay the execution of the judgment or order appealed from, unless
the court in or from which the appeal is taken, or a judge thereof,
makes an order directing such a stay (Code of Civil Pro. § 1351);
or unless, upon appeal from a final judgment, the appellant gives a
proper undertaking. (Id. § 1352.)

If the case does not fall ufder any provision of a statute declar-
ing that a perfected appeal shall have the effect of staying the
execution of the judgment or order appealed from, an appellant
desiring such stay must apply for an order directing the stay, or, if
the appeal is from a final judgment, must give all the security
required to perfect an appeal to the Court of Appeals (Ante, p. 68)
from a judgment of the same amount or to the same effect, and also
all the security required to stay the execution of the judgment upon
such appeal. (Code of Civil Pro. § 13852; Moak v. Hayes, 25 Hun,
316.)

The cases in which no security is required to stay execution
pending appeal (Sce ante, p. 68), and the mode of obtaining a
stay in other cases, have been considered elsewhere. (Ante, p. 82.)
Service or Copies or Casz, Erc. 315

 

Case and exceptions, and service of copies,

 

ARTICLE III.

PROCEEDINGS AFTER APPEAL AND BEFORE ARGUMENT.

SECTION I.
Case anp Exceptions, AND Service or Coptzs.

If a case is necessary to present the questions for review (ante,
p- 187), the appellant, before or after the taking of the appeal, as the
ease requires, and within the time prescribed by the general rules of
practice, or such further time as the court may allow (ante, p. 139),
must make and serve a proposed case (ante, p. 146), containing so
much of the evidence and other proceedings upon the trial as is
material to the questions to be raised thereby, and also the exceptions
taken by the party making the case (Code of Civil Pro. § 997, ante,
p. 141), and have the same settled and signed and made a part of
the record. (See ante, p. 151.) The case so made and settled must
be printed as required by the general rules of practice. (Rule 42.)
There must be printed five copies of the case for the clerk of the
court, in addition to the number required by the special rules of the
respective General Terms. (Rule 41.) There must also be three
copies for the adverse party (Id.); and one copy for the Supreme
Court reporter. (Laws of 1875, chap. 131.) In the Fourth Depart-
ment there must be four copies printed for State law libraries.
(Rule 11 of Fourth Dept.)

The copies called for as above are, of course, in addition to the
copies necessary for the use of the appellant.

If the case is one in which the appellant to the General Term
may desire to appeal to the Court of Appeals, it is advisable to
print, in addition to the copies necessary for use on the appeal to
the General Term, asufficient number of copies for use on an appeal
to the Court of Appeals. (See ante, p. 257.)
816 New Trrats anp APPEALS.

 

What papers required—Printing the papers.

 

SECTION II.
Printing Papers on AN APPEAL FROM AN ORDER.

What papers required.—The Code provides that an appeal to
the General Term from an interlocutory judgment or from an order
must be heard upon a certified copy of the notice of appeal, and of
the papers used before the court or judge upon the hearing of the
demurrer, application for judgment, or motion, as the case requires.
(Code of Civil Pro. § 1353.) The papers required by statute or by
general or special rules of practice upon appeals from orders to the
General Term of the same court have been noticed in another
chapter. (See ante, p. 182.)

 

Printing the papers.—All the papers upon which the appeal
is to be heard by the General Term must be printed as required by
the general or special rules of practice. (See Gen, Rule 41; Rules
4 and 5, Com. PI.; Rules 3 and 6, City Ct. of N. Y.; Rule 4,
Supr. Ct. of N. Y.; Matter of Poole v. Johnson, 32 Hun, 215, 219.)
This rule will be enforced by considering only such papers as are
printed as being before the court. (Wheeler v. Falconer, 7 Rob.
45. See Brown v. Wiess, 15 Abb. N. 8. 345; 46 How. 465.)

SECTION III.
Maxine anp Printing Ports.

The office and general requisites of points on appeal have already
been considered. (Ante, p. 153.)

As a general rule the General Term is disinclined to consider a
question not urged upon its attention. But where an exception stands
in the record in full foree it is bound to consider the alleged error
although the question is not raised by the appellant in his points.
(Schoonmaker v. Wolford, 20 Tun, 166, 170.)

On appeal to the General Term each party must prefix to his
points a concise statement of the facts of the case with reference to
the folios; and if such statement is not furnished, no discussion of
Note or Issuz anp Noticr or ARGUMENT. 317

 

Contents of note of issue.

 

the facts by the party omitting such statement will be permitted.
(Rule 40; see also Rule 8, Supr. Ct., N. Y.)

In the Fourth Department the appellant, in addition to the state-
ment required by Rule 40, must prefix to his points a brief state-
ment, showing in what court, or before what officer or tribunal the
action or proceeding was instituted, the relief sought, the defense or
grounds of opposition thereto, the result in the court or before the
officer or tribunal in which the action or proceeding was commenced,
the proceedings subsequent to the first decision, and how the case
was bronght into the General Term. (Fourth Dept., Rule 12.)

Five copies of the points must be printed for the clerk (Rule 41),
one for the adverse party (Id.), and one for the Supreme Court
reporter. (Code of Civil Pro. § 248.) In the Fourth Department
four copies must. be printed for State law libraries. (Fourth Dept.
Rule 11, and see Rules of Buffalo Supr. Ct.)

The points must. be printed on white writing paper, with a mar-
gin on the outer edge of the leaf not less than one and a-half inch
wide. The printed page, exclusive of any marginal note or refer-
ence must be seven inches long, and three and a-half inches wide, and
in small pica type. (Rule 42.)

SECTION IV.
Nore or Isstuzu anp Notice or ARGUMENT,

Contents of note of issue.—A note of issue should state the
date of the service of the notice of appeal (Rule 39) ; andif the cause
is entitled to preference it should state that fact and the class to which
it belongs.

The special rales of the General Terms make certain require-
ments as.to notes of issue.

Tn the First Department, in enumerated cases the note must state
whether the papers have been printed and served in accordance with
Rule 41 of the courts, and no enumerated case will be put on the
calandar in which such statement is not made, or in which such
papers have not been printed and served, unless on the special order
of the court. (Special Rules, First Dept.)

New notes of issue must be filed in all cases eight days before the
first Monday in January, with date of appeal, the number on October
calendar, and the name of the judge who tried the case. The note of.
318 New Triats anp APPEALS:

 

Contents of note of issue.

 

issue must further state whether the appeal is from an order ora
judgment, or the same will not be placed on the calendar. (Id.)

In the Third Department, on appeal from an order, the note of
issue must specify the date of the service of the notice of appeal on
the respondent or his attorney. (Special Rules, Third Dept.)

In the Fourth Department, on appeal from an order, the note of
issue must specify the date of the service of the notice of appeal, and
that the case is to be put onthe non-enumerated calendar. (Fourth
Dept. Rule 1.) Inevery case which is to be brought on for argument
upon acase, ora case containing exceptions, the note*of issue filed
with the clerk shall be accompanied by an affidavit stating that the
case has been settled, signed and filed, and specifying the time and
place of such filing; otherwise the case shall not be put upon the
calendar. (Id. Rule 2.) <A party desiring to have a case heard as a
preferred cause must, in his note of issue, notify the clerk that it is
preferred, and the class to which it belongs. (Id. Rule 3.) Ifa
cause is passed without being reserved or put over by consent of the
court, the party placing it on the calendar for a subsequent term must
state in his note of issue the date when the canse was so passed. (Id.
Rule 4.)

In the Superior Court of the City of New York the note of issne
must state that the printed papers and points required by general
rule 41, have been filed and served in accordance with said rule.
(Superior Ct. of N. Y. Rule 4.)

All notes of issue for the General Term shall specify therein by
what judge or referee the cause was tried or order made. (Id.
Rule 7.)

In the Superior Court of Buffalo notes of issue for the General
Term, in addition to what they are now required to contain, shall
state whether the case is before the General Term on demurrer, on
appeal from a Justice’s Court (now the Municipal Court of Buffalo),
or from a judgment entered upon the report of a referee or from the
decision of one of the judges of that court, naming him, (Buffalo
Supr. Ct. Rules.)

In the Court of Common Pleas, all notes of issue must contain
the title in full, the nature of the appeal, the date of issue, with
the attorney’s names. If on appeal fromm an order or judgment the
note must, in addition, state the name of the judge by whom the
order was made, or judgment rendered at Special Term, the date of
the same, and the nature thereof. (Com. Pleas, Rule 13.)
Nore or Issvuz anp Notice or ARGUMENT. 319

 

Filing note of issue—Notice of argument.

 

In the City Court of New York, notes of issue must specify the
name of the judge from whose order or judgment the appeal is taken,
and if the action shall have been tried by a referee, that fact-shall
be stated. (City Court of N. Y., Rule 8.) °

The time when an appeal from an order was taken, shall be
specitied on the note of issue. (Id. Rule 7.)

For forms of note of issue, see Appendix.

Filing note of issue.—The general rules of practice provide
that notes of issue for the General Term shall be filed eight days
before the commencement of the court at which the cause may be
noticed. (Rule 39. And see Special Rules First Dept.)

In the Third Department, the attorney for either party to an
appeal from an order shall file the note of issue with the clerk of the
county in which the term of the court, for which notice of argument
of such appeal has been served, is to be held, on or before Tuesday
of the week preceding the term. (Special Rules, Third Dept.)

In the Fourth Department, on appeal from an order, the note of
issue must be filed with the clerk, at least eight days before the first
day of the term. (Id. Fourth Dept., Rule 1.

In the Superior Court of the City of New York, on an appeal
from an order, the note of issue must be filed at least three days
before the day for which the appeal is noticed. (Superior Ct. of
N. Y., Rule 3.)

In the Court of Common Pleas, a note of issue of cases for the
General Term calendar must be filed with the clerk, for each term,
at least eight days before the first day of the term. (Common Pleas,
Rule 2, and see Rule 13.)

In the City Court of New York, notes of issue must be filed with
the clerk, at least five days before the day in term for which the
cause is noticed for argument. (City Ct. of N. Y., Rule 8.)

Notice of argument.—All questions for argument shall be
brought before the court on notice. (Rule 37.) An appeal to the
General Term is an enumerated motion (Rule 38); and shall be
noticed for the first day of the term by either party, on a notice of
eight days. (Rule 40.) If notice is served by mail, sixteen days’
notice must be given. (Code of Civil Pro. § 798.)

The notice cannot be served until the time to file the case has
expired. (Donohue v. Hicks, 21 How. 438.) If a judgment,
320 New Triats anp APPEALS.

 

Serving and filing papers.

 

entered absolutely, is to be reviewed on a case or exceptions, the
appellant must procure an order of the court, authorizing the case
or exceptions to be annexed to, and to form a part of the judgient-
roll; and until this is done the respondent has a right to notice the
cause for argument, and put it on the calendar of the General Term
before the expiration of the time for filing the case or exceptions,
after settlement. (Anderson. v. Dickic, 26 How. 199; 17 Abb. 83;
1 Rob. 238, 700.)

In the Fourth Department, a party desiring to have a case heard
as a preferred cause, must specify in his notice of argument to the
opposing party, that the cause is claimed to be entitled to a prefer-
ence, briefly stating the ground on which a preference is claimed.
(Fourth Dept., Rule 3.)

(For form of notice of argument, see Appendix.)

‘

SECTION V.
Srervine anp Finine Papers.

The question as to. what papers the appeal is to be heard upon
has already been considered. (Ante, p. 132.) Except on appeal from
non-enumerated motions, the appellant must deliver to the attorney
for the adverse party, at least eight days before the first day of the
term, three printed copies of such papers, and each party must serve
upon his adversary a printed copy of his points and authorities on
which he intends to rely. (Rule 41. See also N. Y. Supr. Ct.,
Rule 4.)

On appeals from non-enumerated motions the appellant must
deliver to the respondent, at least four days before the commence-
ment of the term, three copies of the printed papers. Each party,
at the beginning of the argument, shall deliver to his adversary a like
number of his printed points. (Id.)

In the Court of Common Pleas, in case of appeals from orders,
the appellant must serve upon the respondent, at least eight days
before the first day of the term, a complete copy, written or priated,
of the papers upon which the appeal is to be heard. (Com. Pleas,
Rule 4.)

In the City Court of New York, on appeals from judgments and
orders, the appellant must serve, upon the attorney for the adverse
Motion to Dismiss THE APprat. 821

 

Motion to dismiss the appeal.

 

party, at least five days before the first day of the term, three printed
copies of the papers. (City Ct. of N. Y., Rule 3.)

In the First Department, and in the Superior Court of New York,
no enumerated case or motion shall be entitled to be moved by the
appeilant and heard at a General Term, unless the printed copies of
the case and papers and points required by the rules to be furnished
for the use of the court by the appellant shall be filed with the clerk
of the General Terin at least eight days before the commencement
of the term. The cases, papers and points to be so filed shall consist
of one copy thereof for each of the justices of said Gencral Term,
and the same shall not be accessible to any attorney, counsel, or
other person, but shall be delivered by said clerk to the justices of
the General Term, as they may direct. (Rule 41. And see Rule 4,
N. Y. Supr. Ct.)

SECTION VI.
Morton ‘ro Dismiss THE APPEAL.

A motion to dismiss an appeal must be made at the General Term.
The Special Term has no power to dismiss an appeal. (Barnum v.
Seneca Connty Bank, 6 Wow. 82; Harris v. Clark, 10 How. 415 ;
People v. Murphy, 1 Daly, 462; Morrison v. Morrison, 16 Hun,
507, 511. But see Waring v. Senior, 48 How. 226. See also Com.
Pleas, Rule 8.)

The motion may be made at any time after the appeal has been
taken, provided it has not been abandoned. (See Stevens v. Glover,
83 N. Y. 611.) Eight days’ notice of the motion must be given,
unless the time has been reduced by an order toshow cause. (Rule
37; Salters v. Sheppard, 11 Week. Dig. 189.) The notice of motion
is not fatally defective because of an omission to specify therein
upon what papers the motion will be made, since the nature of the
motion apprises the appellant that it is based upon the record. (See
Browne v. Taylor, 69 N. Y. 627.) The motion should be made
promptly, as the right to move may be lost by laches (Stevenson v.
McNitt, 27 How. 335); although the motion has been granted not-
withstanding a delay of five months. (See Waring v. Senior, 48
How. 226, 228.)

If the appellant elects to dismiss his own appeal he must enter an
order to that effect, and pay the respondent’s costs. A notice served
on the respondent that the appeal has been dismissed is not sufficient ;
322 New Triats anp Appnats.

 

Calenda:, how made up.

 

nor is an order to that effect, without payment of costs. (Burnett v.
Harkness, 4 How. 158.) An order discontinuing an appeal, made
ex parte, upon au affidavit which omits to state that no other applica-
tion for the same order has been previously made (Rule 25), will be
vacated on a motion made on that ground. (Gouraud v. Trust, 17
Hun, 578.)

SECTION VII.
Ostaining A PREFERENCE OF THE CAUSE ON THE CALENDAR.

The Code has attempted to define the cases in which. causes are
entitled to be preferred upon the calendar, and, to a certain extent,
the mode in which such preference shall be determined and obtained.
(See Code of Civil Pro. §§ 789-795.) The rules of court also pro-
vide that notice of a claim for preference shall be given to the clerk
by the note of issue filed, and to the adverse party by the notice of
argument. (See ante, p. 159.) The whole subject has been consid-
ered in another chapter. (See ante, p. 156.)

ARTICLE IV.

THE CALENDAR AND CALENDAR PRACTICE.

SECTION I.
CALENDAR, HOW MADE UP.

The general rules of practice provide that “the clerk shall pre-
pare a calendar for the General Term, and, except in the First
Department cause thesame to be printed for each of the justices
holding the court. Appeals shail be placed on the calendar accord-
ing to the date of the service of the notice of appeal ; and all subse-
quent enumerated appeals in the same cause shall be put on the cal-
endar as of the date of the first appeal ; and other cases as of the time
when the question to be reviewed arose. Appeals in non-cnumera-
ted motions shall also be placed separately, and be first called on the
calendar. Cases entitled to preference shall be placed separately on
the calendar.” (Rule 39.)

In the First Departmen‘ the general calendar of the Court of Com-
CALENDAR, HOW MADE UP. 823

 

Calendar, how made up.

 

mon Pleas is published in fullin the Daily Register on the first
day of the term. (Special Rules, First Department; Rule 13, Com.
Pl.)

By the special rules of the Third Departinent the clerk is required
to prepare a calendar of cases in which notes of issue on appeals
from orders have been filed, and to enter the cases thereon in the
order of time of the service of the notice of appeal. No appeals
from orders will be heard unless the notes of issue have been dnrly
filed and entered on the calendar.

In the Fourth Department noappeal from an order will be heard
unless placed on the non-enuinerated calendar. (Fourth Dept., Rule
1.) The clerk in making up the calendar places causes which he has
been notified are preferred, at the head of the calendar, indicating
that they are preferred, and the class to which they belong, (Id.
Rule 3.)

In the Superior Court of New York appeals from orders:must be
placed on a special calendar, in the order of time the appeal was
taken. (N. Y.Supr. Ct., Rule 3.)

In the Superior Court of Buffalo the clerk specifies on the calen-
dar the nature of the appeal, whether it isfrom the Municipal Court,
or from a judgment entered on the report of a referee, or from the
decision of one of the judges of the court, naming him. If the note
of issue does not contain this information, the cause does not go on
the calendar.

In the Court of Common Pleas all appeals must be placed on the
calendar and numbered. (Com. Pleas, Rule 2.) Appeals from the
City Court of New York must be classed separately. (Id. Rule 12.)
The order of the calendar is,

1. Motions and appeals from orders.

2. Appeals from judgments of the Cuurt of Common Pleas and
referees in that court.

8. Appeals from the City Court of New York.

4, Appeals from the District Courts. (Id. Rule 13.)

In the City Court of New York the clerk must specify, on the
General Term calendar, by which of the judges the cause was tried,
and, if it shall have been tried by a referee, shall state that fact.
(City Ct. of N. Y., Rule 8.) A separate calendar will be made for
appeals from non-enumerated orders, and those will be entitled to be
first heard. (Id., Rule 7.)
- 824 New Triats anp APPEALS.

 

Striking causes from the calendar.

 

SECTION II.
CorRECTING THE CALENDAR.

The Code and rules of practice prescribe the order in which eal-
endars shall be made up, and the clerk is, of course, bound to follow
the order so prescribed. A cause out of its proper place on the
calendar may be advanced or deferred, as the case requires, upon a
motion for that purpose.

The court has power, in its discretion, to relieve a party who has
duly noticed a cause for argument, from an omission to file a note of
issue, and grant leave to place it upon the calendar. (Code of Civil
Pro. § 723. See Clinton v. Myers, 43 How. 95.) But an attorney
who has waited until the last day but one for filing the note without
sutticient cause, should not be allowed to place a cause on the ealen-
dar, whatever may be his excuse for the failure after that day.
(Wilkin v. Pearce, 4 How. 26.)

Motions to correct the calendar should be made on the first day
of the term. (See Clinton v. Myers, 43 How. 95.) In the first
department all motions to correct the calendar must be made during
the first week of the term. (First Dept. Special Rules.) In the
Superior Court of New York (Rule 6); and in the Court of Com-
mon Pleas (Rule 4); motions to correct the calendar will be heard
on the first day of the term.

SECTION III.
Sramina Catses FROM THE CALENDAR.

Where a cause has been placed upon the calendar in which an
appeal has not been properly taken, the remedy is by motion tostrike
the cause from the calendar. (See Raymond v. Richmond, 76 N.
Y. 106.)

If the appellant neglects to furnish to the adverse party the
papers and points (see ante, p. 320), the latter is entitled to move, on
affidavit and notice of motion, for the earliest practicable day in term
for hearing non-enumerated motions, that the cause be stricken from
the calendar (whichever party may have noticed it for argument),
Srrizing Causes FROM THE CALENDAR. 325

 

Striking causes from the calendar.

 

and that judgment be rendered in his favor. (Rule 41.) This
applies to all appeals except from non-enumerated motions. (Id.)

On appeals from non-enumerated motions, if the appellant fail
toserve the proper papers (ante, p. 320), the respondent may move
on three days’ natice, on any motion day in the term, to disiniss the
appeal. (Id.)

In the City Court of New York, on appeals from judgments and
orders, if the appellant omits to furnish to the adverse party the
number of copies of papers specified (ante, p. 320), that party is
entitled to move, on affidavit and three days’ notice of motion, for
the earliest practicable day in term, that the cause be stricken from
the calendar, and that the judgment or order appealed from be
affirmed with costs. (City Ot. of N. Y., Rule 3.)

The affidavit on which the motion is made should show that the
party moving has served a notice of argument, unless such notice
has been served by the adverse party. (Herkimer Co. Bank v.
Devereux, 5 Hill, 9.)

In the Superior Court of New York, where the requirements as to
the note of issne have not been complied with (see ante, p. 318), the

clerk will not put the cause upon the calendar. except upon the
special order of a judge, which order will be granted only for the
purpose of a motion by the opposite party to strike the cause from
the calendar, and that judgment be rendered in his favor, under
general rule 41. (N. Y. Supr. Ct., Rule 4.)

In the Fourth Department, if a cause is passed without being
reserved or put over by consent of the court ; and the party placing
it upon the calendar for a subsequent term omit to state in his note
of issue the date when the cause was so passed, whereby the cause
retains its priority on the calendar, the court, on the application of
the adverse party, or of its own motion, may strike the canse from
the calendar. (Fourth Dept., Rule 4; see General Rule 39.)
326 New Triais anp APPEALS.

 

Day calendars.

 

SECTION IV.

Day CaLEenpars.

The general rules of practice provide, that every cause placed on
the calendar of a General Term, shall be moved for argument when
reached in its order ; and that appeals in non-enumerated motions
shall be first called on the calendar. (Rule 39.)

In the First Department, during the first week of the term, the
day cdlendar of appeals from orders will include all those on the
general calendar undisposed of and not postponed. No ease on the
calendar of appeals from orders will be set down for any day after
the first week, except on a motion day. Twenty cases will be put
on the day calendar of enumerated causes on each day, and when
put on such calendar, no reservation or postponement will be allowed,
except by order of the court, on special cause shown. The general
calendar will be published in full in the Daily Register, on the first
day of thé term, and on each subsequent day, the day calendar will
be’ published in'the Daily Register, and no cause not appearing in
said day calendar so published, will be called, except with the con-
sent of both parties thereto. (Special Rules, First Dept.)

In the Third Department, the calendar of appeals from orders will
be called on the first day of term, and on the following days until
finished. (Id., Third Dept.)

In the Fourth Department, the clerk prepares, at one o’clock
P. M. of each day, for the next day, a calendar of such number of
causes as the court shall direct, including those undisposed of on the
then day calendar, taken from the general calendar in their order
thereon, subject to the provisions of the following rnle. Causes not
disposed of on any day, shall be placed at the head of the calendar
for the next day, until disposed of. (!ourth Dept., Rule 5.)

No cause shall be put upon tle day calendar, unless written
notice is served upon the clerk, at or after the commencement of the
term, by the attorney on one side or the other, that such cause is
intended to be argued or moved when it shall be called in its regular
order on the day calendar; and any cause not placed on the day
calendar in its order on the general calendar, will be regarded as
passed for the term, unless reserved or put over with consent of the

court. (Id., Rule 6.)
Resrervine Causes, Ere. 827

 

Reserving causes, etc.

 

Inthe Superior Court of New York, no more than fifteen causes
on the general calendar will be called on the first or any subsequent
day. (N. Y. Sup. Ct., Rule 6.)

In the Court of Common Pleas, the calendar will be called
through on the first Monday of the term, and appeals may be then
set down for argument for any day in the first and second weeks of
the term. (Com. Pleas, Rule 3.)

The calendar will be published in full in the Daily Register on
the first day of the term, and on each subsequent day, the day cal-
endar will be published in the Daily Register, and any cause not
appearing in said day calendar, as so published, will not be called or
placed thereon. (Id., Rule 13.)

SECTION V.
Reservine Causes, ETC.

The general rules of practice provide, that a cause upon a Gen-
eral Term calendar shall not be reserved or put over, except by con-
sent of the court; and if passed without being so reserved or put
over, it shall be entered on all subsequent calendars as of the date
when passed, and no term fee shall be taxed therein for any subse-
quent term. (Rule 39.)

In the First Department, at any time after the term commences,
and before an enumerated cause shall be placed on the day calendar,
the respective counsel may tile a written consent with the clerk, that
the cause be set down for a future day, and causes so set down will
be added to the day calendar (whenever their addition will not
increase the calendar beyond twenty), at the foot of causes remaining
thereon undisposed of, in their relative order on the general calen-
dar, provided they would have been reached on the general calendar,
if not so set down. (First Dept., Special Rules.)

In the Third Department, cases on the calendar of appeals from
orders will not be reserved beyond the first week unless for special
cause shown. (Third Dept., Special Rules.)

In the Fourth Department a cause may be reserved when counsel
for cither party is actually engaged, or expects to be so engaged, in
the trial or argument of a cause previously begun or set down in
another court, upon filing, with the clerk, before the said cause is put
upon the day calendar, an affidavit to that effect, which affidavit shall
328 New Trrats anp AppEAts.

 

Furnishing papers.

 

state when such eugagement will probably terminate, and on what
day said counsel will be prepared to argue the cause ; and the same
shall be put upon the day calendar for the day so named, in its proper
order, at the foot of the calendar, provided that the opposite party
shall have the option to have said cause go over the term on payment
of costs. (Fourth Dept., Rule 7.) Reserved causes will be put on
the day calendar in their numerical order, but not before they shall
respectively be reached in their regular order upon the general cal-
endar. (Id., Rule 8.) No exchange of cases will be allowed unless
both cases are ready for argument and counsel intend to argue them
at the same term at which the exchange is made; and when causes
are exchanged, each shall occupy the proper position of the other in
date, on the same and every subsequent calendar until heard. A pre-
ferred cause, exchanged for one not preferred, or set down for a
particular day, shall lose its preference; and no case will be called
more than once during the same term, unless it shall have been
reserved or postponed with consent of the court. (Id., Rule 10.)

In the Superior Court of New York, no case will be set down for
a future day in the term, nor will any case be reserved for the day,
except for suflicient cause to be shown at the opening of the court
or at the call of the case upon the day calendar. (N. Y. Supr. Ct.,
Rule 6.)

In the Court of Common Pleas the calendar will be called through
on the first Monday of the term, and appeals may then be set down
for argument for any day in the first and second weeks of the term.
(Com. Pleas, Rule 3.)

’

ARTICLE V.

PROCEEDINGS ON THE HEARING.

SECTION I.

GrneraL PRACTICE ON THE CALL oF THE CatsE.

Furnishing papers.—At the commencement of the argument
the appellant must furnish five printed copies of the papers to the
clerk of the court; and the respective parties inust each deliver to
the clerk five printed copies of the points on which they intend to
GenEraL Pracrice, 329

 

Furnishing papers.

rely, with a reference to the authorities which they intend to cite.
These papers are in addition to the number required by the special
rules of the respective General Terms. (Rule 39.)

The same papers and points are to be furnished on appeals from
non-enumerated motions. (Id.)

In the First Department certain papers are required to be filed a
least eight days before the commencement of the term (see ante,
p- 321). All other papers required by the rules to be furnished to the
clerk by either party must be delivered to the clerk at the opening
of the argument. (Id.; and see N. Y. Supr. Ct., Rule 4.)

In each cause heard ata General Term of the Superior Court the
attorney or counsel must deliver to the clerk for the use of the
Superior Court reporter, a duplicate of each paper furnished by him
for the use of the court. (Code of Civil Pro. § 248.)

In the Fourth Department, at the commencement of the argument
in addition to the five copies of papers required by General Rule 41,
the party whose duty it is to furnish the papers must deliver to the
clerk four copies of the case, and each party must deliver to the
clerk four copies of his points, for State law libraries. (Fourth
Dept., Rule 11.)

The appellant in an appeal from an order must furnish to each of
the judges a printed copy of the papers intended to be used on the
argument; each party must also furnish a printed copy of his points,
containing a reference to the authorities on which he relies. All
such papers other than the points must be folioed. (Id., Rule 13.)

The counsel who argue a case must indorse on the papers deliv-
ered to the judges their names and places of residence. (Id., Rule
14.)

In the Superior Court of New York, at the commencement of
the argument of cases upon the general and special calendars of the
General Term, the parties shall deliver to the clerk eight copies of
the printed papers, and a like number of the printed points. The
printed case in causes upon the general calendar shall have annexed
to it the certificate of the clerk that the case has been duly filed upon
the order of the judge or referee who tried the cause, otherwise the
case will not be heard. (N. Y. Supr. Ct., Rule 5.)

In the Court of Common Pleas, in all appeals from orders and
judgments, other than from the District Courts, the parties shall
deliver five copies of the printed papers and points to the clerk at
the commencement of the argument. (Com. Pleas, Rule 5.)
330 New Trrats anp APPEALS.

 

Default,

In the City Court of New York, in all cases, the parties must
deliver eight copies of the printed papers and points to the clerk of
the General Term at the commencement of the argument, which
printed case shall contain the certificate of the clerk that the case
has been duly filed upon the order of the judge or referee who tried
the cause. (City Ct. of N. Y., Rule 11.) In the Superior Court of
Buffalo, the party whose duty it is to furnish the court with printed
papers and points, shall deliver one copy thereof to the clerk, who
shall deposit the same in the law library of the eighth judicial dis-
trict. (Buffalo Supr. Ct. Rules.)

Default.— When a cause, which has not been reserved or put
over (ante, p. 327), is called in its order upon the calendar, and is
passed, it will not be called again at that term, and must be entered
on all subsequent calendars as of the date when passed. (Rale 389,
and see Fourth Dept., Rule 10.) In the Superior Court of New
York, on appeals from orders, if either party fails to appear upon
the call of his cause upon the calendar the other party may take a
default. (N. Y. Supr. Ct., Rule 4.)

A reversal of a judgment by default is not allowed, but if the
appellant is entitled to bring on the argument and the respondent
fails to appear, the appellant may argue or submit thecause. If the
appellant, being entitled to bring on the argument, fails to appear
upon the call of the cause in its order, the respondent is entitled to
an affirmance by default. If the party whose duty it is to furnish the
papers neglects to do so, the opposite party is entitled to move, on
affidavit, and on four days’ notice of motion, that the cause be struck
from the calendar (whichever party may have noticed it for argu-
ment), and that judgment be rendered in his favor. (Rule 40.)

As already stated (ante, p. 824), if the appellant neglects to fur-
nish to the adverse party the necessary number of papers, the latter
is entitled to move that the cause be stricken from the calendar, and
that judgment be rendered in his favor. (Rule 41.) It has been held
that this remedy is not exclusive; that if the respondent does not
choose to make the motion, but waits until the appeal is regularly
called on for argument, and is then ready for argument, judgment of
affirmance may be rendered. (Brown v. Wiess, 46 How. 465.) This
is the rule in the Court of Common Pleas. (Id.)

In the First Department, and in the Superior Court of New York,
enumerated cases are not placed on the calendar unless it appear that
Tue ARGUMENT. 3381

 

Objections that proceedings are stayed.

 

the printed papers and points have been filed and served. In the
latter court, the practice of disposing of appeals for want of prosecu-
tion is as follows: If the appellant fail to serve his case, or to have
it settled or filed within the time prescribed by the rules, the respond-
ent should apply on notice to the Special Term to have the case
declared abandoned. He should then apply for an order to put
the case on the General Term calendar, and on an affidavit of the
non-service of the appeal papers, and on notice to the appellant for
the earliest motion day in term, move to strike the cause, from the
calendar, and for judgment of affirmance. (Carraher v. Carraher,
1 Jones & Sp. 502; 42 How. 458; N. Y. Sup. Ct., Rule 4; see 36
How. 366. And see also Goldschmidt v. Goldschmidt, 15 Jones &
Sp. 184.)

An appeal should not be deemed waived or abandoned, nor be
so declared for want of prosecution, by the enforcement of strict
rules of practice, even in case of long delay in bringing it on for
argument, when both parties have slept upon theirrights. (Pacific
Mail Steamship Co. v. Toel, 9 Daly, 301.)

Objections that proceedings are stayed.—In the First Depart-
ment the objection that proceedings are stayed for non-payment of
any costs will not be heard when the cause or motion is called on the
calendar, unless at least twenty-four hours’ notice in writing that
such objection will be made has been given to the opposite party.
(First Dept., Special Rules.)

SECTION II.

Tuer ARGUMENT.

The appellant is first heardon the argument. The general rules
of practice provide that at the hearing of canses at a General Term
not more than one counsel shall be heard on each side, and then not
more than one hour each, except when the court shall otherwise
order. On appeals from orders but one counsel on each side shall
be heard, and not more than half an hour each, unless the court shall
otherwise order. Any General Term may, by general rule, make
such further restriction as it may deem proper. (Rule 46.)

The rules of the First Department provide that on the argument
of appeals from orders not more than one counsel shall be heard on
832 New Triats anp APPEALS.

 

Submission without argument—Questions of law

 

each side, and then not more than fifteen minutes each, except when
the court shall otherwise order.

In the City Court of New York no counsel shall occupy more
than fifteen minutes in arguing an appeal from an order, and no
more than thirty minutes in arguing an appeal from a judgment,
unless by permission of the court. (City Ct. of N. Y., Rule 2.)

Submission without argument.—When a cause is called in its
order, and both parties appear, either party may submit the cause
without oral argument. (See Seneca Nation v. Knight, 19 N. Y.
587.)

In the First Department, appeals from orders may be submitted by
the parties at any time during the term by delivering the papers to
the clerk. (First Dept., Special Rules.)

In the Fourth Department, if both parties desire to submit they
may do so at any time after the cause is put on the day calendar, by
delivering the cases and points to the clerk, and either party may
submit his points when the cause is called if the other party desires
to argue orally on his part. (Fourth Dept., Rule 15.)

ARTICLE VI.

QUESTIONS REVIEWABLE ON THE APPEAL.

SECTION I.

On AppEaAL FRoM JupamMENT RenperEep on TRIAL BY THE CouRT
orn A ReEFEReEs.

Where the judgment was rendered upon a trial by a referee or
by the court without a jury, the appeal may be taken upon questions
of law, or upon the facts, or upon both. (Code of Civil Pro. §
1846.)

Questions of law.—The questions of law which may be consid-
ered on this appeal are questions, arising upon decisions made during
the progress of the trial as to the admission or rejection of evidence,
ete., and questions, arising after the cause is submitted, as to the cor-
rectness of the conclusions of law, refusals to find one way or the
other upon a proposed finding of fact, and as to whether there is
JupGMENT RENDERED oN TRIAL. 833

 

Questions of law.

 

any evidence to sustain the findings of fact. (Code of Civil Pro.
§§ 992, 993, 994.) Provisions are contained in the sections of the
Code above cited for taking exceptions to the rulings made by the
court or referee during the trial, and to his conclusions of law as set
forth in his findings, and as to the mode and inanner of bringing
such exceptions before the General Term for review. (Andie, p. 124.)
The regulations thus provided are intended as a rule of procedure
and practice, and as a convenient way of bringing the attention of the
court to the errors and mistakes which are claimed by the appellant
to have occurred upon the trial. There is no statutory provision
which prohibits the General Term from correcting any mistake or
error which may have been committed by the trial court, although
no exception was taken distinctly indicating the alleged error. The
error pointed out may be so grievous to the appellant, and the injus-
tice which will be done him may be so great, if the judgment is
allowed to stand, that the judgment should be reversed although
there was a failure to make specific exception indicating the mistake
which the court or referee made. (Mandeville v. Marvin, 30 Hun,
282.) The General Term will not, however, as a general rule,
examine questions not duly raised by an exception. (’ussell v.
Duflon, 4 Lans. 899; Parker v. City of Cohoes, 10 Hun, 131;
Underhill v. Nichols, 8 Week. Dig. 276.) And even where excep-
tions have been duly taken, they may be deemed waived if neither
noticed in counsel’s points, nor argued. (Sutherland v. Rose, 47
Barb. 144. See, however, Schoonmaker v. Wolford, 20 Hun, 166.)

It has been said that where a ease as settled contains no excep-
tion, either to the tinal decision, or to any question of law decided
during the trial, the General Term cannot review it. (Dainese v.
Allen, 4 Jones & Sp. 98; 45 How. 430; 15 Abb. [N. S.] 363.)
But exceptions taken either during the trial or after trial may be
reviewed. Thus, where the appellant relies exclusively upon erro-
neous decisions made during the trial, they may be reviewed although
no exceptions were taken to the conclusions of law, or to the final
decision. (Id.; Parker v. City of Cohoes, 10 Hun, 531).

Where there is a request to find a fact, and the court or referee
refuses to pass upon the request, and neither admits or denies it, the
refusal, duly excepted to, raises a question of law, to be considered
on appeal from the judgment. (Code of Civil Pro. § 993; see
James v. Cowing, 82 N. Y. 449. Bensel v. Gray, 6 Jones & Sp.
447.)
834 New Trrats anp APPEALS.

 

Questions of fact.

 

Where the court or referee finds a fact which there is no evidence
tending to sustain, the same rule applies (Code of Civil Pro. § 993 ;
Warner v. Gillette, 15 Week. Dig. 153; Taft v. Wright, 47 How.
1); and where the only evidence to sustain the finding is given by
a witness on his direct examination, and upon his cross-examination
he so contradicts himself as to destroy the force and effect of his
direct testimony, the court will consider that no evidence has been
given to sustain the finding (Zownsend v. Peyser, 4 Daly, 556 ; 45
How. 211; 14 Abb. [N. S.] 324.)

As has already been stated (ante, p. 144), the appellant, if he
desires to raise the point that a finding of fact is wholly without
evidence to sustain it, must bring up all the evidence, and the case
must show that all the evidence is before the General Term. Unless
this is done, it may be assumed that evidence was given to sustain
the finding, although it does not appear in the case. (Porter v.
Smith, 835 Hun, 118; Tyron v. Baker, 7 Lans. 511; Frost v. Smith,
% Bosw. 108.) If findings of fact only are inserted in the case, it
must be assumed that there was no evidence authorizing any other
findings, and that the findings of fact presented were fully supported
by the evidence given, and the question is whether the findings of
fact warrant the conclusions of law. (Clute v. Hmerich, 26 Hun, 10;
Beard v. Sinnott, 3 Jones & Sp. 51.)

Questions of fact.—On an appeal from a judgment the General
Term is required by the Code to examine into the facts as well as
the law of the case, where the trial has been before the court
without a jury, ora referee. (Grocer’s Bank v. Penjield,7 Hun,
279, 284.)

A refusal to pass upon a proposed finding of fact, and a finding
of fact without any evidence tending to snstain it, if duly excepted
to, raise questions of law, as already stated. (Ante, p. 127.) ‘The
question whether the findings upon controverted evidence are against
the weight of evidence, is the question of fact, strictly speaking,
which the General Term is to determine, and to entitle it to consider
that question no exception is necessary. (Mead v. Smith, 28 Hun,
639.)

Where a review of facts by an appellate court is proper, it is, as
a general rule, its duty to examine the evidence and determine the
facts for itself, and the rule that where there is conflicting evidence
or any evidence to sustain the finding, it is error to reverse, does
JcpamMent RENDERED on A Verpicr. 835

 

Questions of law.

 

not apply. (Godfrey v. Moser, 66 N. Y. 250. And see ante,
p. 180.)

The rules governing the decision of the General Term upon
the facts when they are before it for review will be considered
hereafter.

SECTION II.
On APPEAL FROM JUDGMENT RENDERED ON A VERDICT.

Questions of law.— Where the judgment was rendered upon the
verdict of a jury the appeal may be taken upon questions: of law.
(Code of Civil Pro. § 1846.) The appeal brings up questions of law
only, and no questions of fact can be considered. (Boos v. World .
Mut. Life Ins. Co., 64 N. Y. 236; Willis v. Weaver, 58 N. Y. 681;
Edmonston v. Edmonston, 18 Hun, 183, 185; Bostwick v. Bar-
low, 14 Hun, 177; Ward v. Central Park, ete., R. R. Co., 2 Sweeny,
701; Wagner v. Jones, 7 Daly, 375; Fitzpatrick v. Woodruff, 15
Jones & Sp. 486 ; Hogers v. King, 66 Barb. 495.) To bring up the
facts for review, there must be an order made upon a motion for a
new trial, and an appeal from the order. (Id.) An exception to
the denial of a motion upon the minutes, for a new trial, is unavail-
ing. (Boos v. World Mut. Life Ins. Co., 64 N. Y. 236, 242 ; Dart
v. Gillies, 14 Jones & Sp. 560; Howard v. Hayes, 15 Id. 85;
Leighton v. People, 10 Abb. N. C. 261; Wagner v. Jones, 7 Dily,
375 ; see Ehrman v. Rothschild, 23 Hun, 273.)

Upon appeal from the judgment there can be no review upon
the facts, or upon the ground of the insufficiency of evidence, or of
the verdict being against the weight of evidence. (Bennett v. Mat-
thews, 64 Barb. 410.) It is the exceptions which are up for review.
(Thurber v. Harlem Bridge, etc., R. R. Co., 60 N. Y. 326, 328 ;
Edmonston v. Edmonston, 138 Hun, 133, 135.) To review upon
the facts there must be an absence of any evidence to sustain the
verdict (Godfrey v. Moser, 66 N. Y. 250, 252; Bostwick v. Barlow,
14 Hun, 177, 178); and this is a question of law (Halpin v. Third
Ave. &. &. Co., 8 Jones & Sp. 175), to be properly raised upon the
trial. (Horton v. Borthwick, 15 Week. Dig. 309 ; St. John v. Skin-
ner, 3 Jones & Sp. 565; 44 How. 198.)

Where the defendant, at the close of the testimony, moves for a
nonsuit, and the court denies the motion and directs a verdict for
the plaintiff, and the defendant excepts to the ruling but makes no
336 New Triats anp APPEALS.

 

On apppeal from interlocutory judgment,

 

request for the submission of any question to the jury, he is con-
cluded by the direction if the facts proved will admit of a finding
sustaining it. (Zodd v. Todd, 3 Hun, 298.) If the defendant does
not move for a nonsuit or verdict, and judgment is directed for the
plaintiff, an exception to the ruling brings up the question whether,
on any construction of the facts, the jury would have been warranted
in finding a verdict for the defendant. (Miner v. Mayor, 5 Jones
& Sp. 171.) An exception to the denial of a specific request to go
to the jury also brings up the question whether there was any evi-
dence which would have supported a verdict ; but where no specific
request is made to leave any specitic question of fact to the jury,
and a verdict is directed, a general exception to the ruling does not
raise the point that such question should have been subinitted tothe
jury. (Schroff v. Bauer, 1 Jones & Sp. 199; 42 How. 348.) And
where the only request is for the submission of specific questions, not
involving the whole case, an exception to the direction of a verdiet
does not raise the point that the whole case should have been sub-
mitted. (Hammond v. Schultze, 13 Jones & Sp. 611.)

The general rule is that questions sought to be reviewed must be
raised by exception, and that the alleged error must be specifically
pointed out. But where evidence is received which in its essential
nature is incompetent, or where the judge charges the jury that they
may consider such evidence, the error may be reviewed although no
exception was taken. Where the objection could not have been
obviated had it been specifically pointed ont, the error may be cor-
rected. (Lattemer v. fill, 8 Mun, 171; Maier v. Homan, 4 Daly,
168; Mulqueen v. Duffy, 6 Hun, 299 ; McCombie v. Spader, 1 Tun,
1938, 194 ; see Trial Practice, pp. 201, 202.)

SECTION III.
On APPEAL FRoM INTERLOCUTORY JUDGMENT.

A motion made at General Term for a new trial pursuant to
section 1001 of the Code, must be based upon one or more excep-
tions, and hence can present only questions of law. But an appeal
to the General Term from the interlocutory judgment brings up for
review both questions of law and fact. (Haynor v. Leaynor, 94 N.
Y. 248, 252.)

Papers forming no part of the judgment-roll and not referred to
On AprraL rrom Orprrs. 337

 

Order granting or refusing a new trial.

 

in the interlocutory judgment cannot legitimately be considered on
appeal to the General Term. (J?cese v. Smyth, 95 N. Y. 649.)

SECTION V.
On AppraL FRoM ORDERS.

Order granting or refusing a new trial.—Where the trial
was by jury, the only mode in which the facts can be brought before
the General Term is by appeal from an order of the trial judge or
Special Term, granting or refusing a new trial. (Boos v. World
Mutual Life Ins. Co., 64 N.Y. 236; Harman v. Rothschild, 23
Ilun, 273; and see ante, p. 45.) A party desiring to obtain a review
of the finding of a jury must make a motion to set aside the ver-
dict on the evidence, and for a new trial, either to the trial judge on
his minutes pursuant to section 999 of the Code, or to the court at
Special Term pursuant to section 1092, and from the order made
upon such motion an appeal lies. (Wright v. Hunter, 46 N. Y.
309; Zhurber v. Harlem Bridge, etc. R. 2. Co., 60 N. Y. 326.)

The appeal from the order brings up the questions properly
raised, and which the court had jurisdiction to consider. No error
is presented by an appeal from an order denying a general motion on
the minutes made formally, and without assigning any grounds, and
without intention that it should be considered or reflectively decided.
(Count Joannes v. Jenning, 4 Hun, 66.)

If the appeal-book does not show that the question whether the
verdict was contrary to evidence was presented to the trial judge on
the motion for a new trial, this question of fact will not be before
the General Term for review. (Hinman v. Stillwell, 34 Hun, 178 ;
De Luce v. Kelly, 5 Week. Dig. 32; Gray v. VN. Y. Floating Ele-
vator Co.,13 Weck. Dig. 140; Cooke v. Leonard, 17 Week. Dig.
575; Alfaro v. Davidson, 7 Jones & Sp. 463; 8 Id. 289; McAleer
v. Corning, 17 Jones & Sp. 522.) So on an appeal from an order,
made upon a motion for a new trial on the minutes, the exceptions
taken on the trial will not be before the General Term for review,
unless it appears that the motion was made in whole or in part upon
the exceptions. (Jinman v. Stillwell, 34 Hun, 178; Dodge v.
Mann, 85 N. Y. 648; Alfaro v. Davidson, 7 Jones & Sp. 463; 8
Id. 289.)

In one case the language of the court seems adverse to the posi-
22

 
338 New Trrars anp Aprrats.

Order granting or refusing a new trial.

tion that, on appeal from an order denying a motion for a new trial
on the minutes, the court can review only snch questions as were
formally assigned as grounds of the motion. Jt was there said that
while it was necessary that it should appear from the order, that the
motion for a new trial was actually heard and decided, it was not
necessary that the particular grounds assigned in support of the
motion should be specitically mentioned in the order; and that an
order stating that a verdict for nominal damages had been rendered,
* that a motion on behalf of the plaintiff for a new trial was made
npon the minutes of the court, and after hearing counsel for the
respective parties, was denied, is sufficient. (Cowles v. Watson, 14
Hun, 41.) But in the ease cited, it was said that but two positions
could have been taken in support of the motion, and the important
one was recited in the order—namely, that nominal damages were
assessed, which upon the facts shown was entirely wrong. The
order was reversed upon this ground alone.

Under the Code of Procedure, if the defendant did not, upon
the trial, raise the question that the plaintiff had not made out a
cause of action, or that there was insufficient evidence to sustain a
verdict against him, a motion for a new trial on the minutes did not
raise the question (J2owe v. Stevens, 2 Jones & Sp. 436; 44 Ifow.
10; Carnes v. Platt, 4 Jones & Sp. 520; 46 How. 520; 15 Abb. |
N. 8. 337; Sickles v. Gillies, 45 How. 94, 96); nor could the
motion be based upon the ground that the verdict was contrary to
the instructions of the court. (Zinson v. Welch, 51 N. Y. 244.)

And under the Code of Civil Procedure, which gives as a ground
for the motion that the verdict was “contrary to law,” it has been
said that is very questionable whether the motion can be made on a
ground, which if raised at the trial might have been corrected.
(Robson v. New York Cent. & H. Re. R. Le. Co., 21 Wun, 886.) On
the other hand it has been held, that where the motion is made on
the ground that the verdict was contrary to law, an appeal from the
order and the judgment brings up the whole case upon the law, as
well as the facts, althongh no exceptions were taken on the trial.
(Tate v. McCormick, 23 Hun, 218.) The grounds upon which the
motion may be made upon a case at Special Term, are not restricted
by any qnestion as to whether the point was made upon the trial.
(Peck v. Cohen, 8 Jones & Sp. 142; Carnes v. Platt,4 Jones & Sp.
361; 46 How. 520; 15 Abb. N. S. 337; Ames v. Rathbun, 55
Barb. 194; 37 Tow. 289.)
go
co
©

On AppEAL FROM OrpERs.

 

Orders generally.

 

The motion upon the minutes can only be entertained upon a
ground authorized by the Code, and where the motion is entertained
upon other grounds, as surprise or newly discovered evidence, an
appeal from the order does not bring up the merits, although coun-
sel argued the motion upon the merits without objection. (Wew-
hall v. Appleton, 14 Jones & Sp. 6.)

An appeal from an order denying a motion for a new trial, and
from the judgment, brings up all the evidence for review, and the
General Term may set aside a verdict influenced by passion or preju-
dice or clearly against evidence. (Hynes v. McDermott, 7 Abb. N.
C. 98.) Both appeals are usually argued on the hearing of the appeal
from the judgment (Zane v. Bailey, 45 Barb. 119; 30 How. 76; 1
Abb. [N. 8.] 407); or the order may be specified in the notice of
appeal from the judgment as an intermediate order to be reviewed.
(Id.; Mackay v. Lewis, 54 How. 503; American Medicine Co. v.
Keisler, 15 Jones & Sp. 557.)

Upon appeal from an order granting a new trial the questions of
law and of fact that arose upon the motion are before the General
Term for review, and it is its duty to examine those questions anew.
( Woolf v. Jacobs, 2 Jones & Sp. 509 ; 45 How. 403.) But whena
new trial isgranted upon the judge’s minutes it must be considered
as granted upon all the proceedings on the trial, including all the
testimony and the charge of the judge; and when the case on
appeal does not profess to contain the whole evidence, and gives
only a portion of the judge’s charge, the General Term cannot say
that the order was erroneously granted. (Boyer v. Brown, 1 Hun,
615.)

Where specific questions of fact in an action triable by the court
have been submitted to a jury asa substitute for a feigned issue,
exceptions have been taken to rulings on the trial, a motion fora
new trial has been seasonably made and denied, and an appeal has
been taken from the final judgment and the order denying the new
trial, the General Term may review the questions of law presented
by exceptions taken to the rulings on the trial which were urged
as a ground for the motion for a new trial, but cannot review the
effect of the evidence bearing upon the issues tried. (Bowen v.
Becht, 35 Hun, 434.)

 

Orders generally.—Where an order from which an appeal is
provided for, is regularly before the General Term for review, the
840 New Triats anp APPEAL.

 

Orders generally.

 

general rule is that the questions which were before the court or
judge making the order are before the General Term. It is the
correctness of the decision granting or denying the motion which is
up for review. (People v. New York Cent. & H. R. R. RB. Co., 28
Hun, 543, 546.) The appeal from orders to the General Term is
unrestricted, and such an appeal takes along with it the whole merits
of the determination appealed from. (Bates v. Voorhees, 20 N. Y.
525, 528.) Controverted questions of fact are to be determined.
(Brodsky v. Ihms, 25 Wow. 471, 475; 16 Abb. 251.) And even
the discretion of the court or judge in granting an appealable order
may be reviewed. (People v. Globe Mutual Ins. Co., 27 Hun, 539.)
But affidavits, made after the decision of the motion below, cannot
be considered on the appeal, even by consent of parties. (Zhompson
v. Taylor, 13 Hun, 201.) And where no papers are read in oppo-
sition to the motion, every intendment must be presumed in favor
of the statements in the moving aftidavits. (Jackson v. Smith, 25
How. 476 ; 16 Abb. 201.)

Formal and preliminary objections not involving the merits of
the motion, will not be considered upon the appeal, unless it
affirmatively appears that they were taken and overruled when the
motion was brought on for hearing (Merritt v. Thompson, 1 Hilt.
550) ; especially where the objection might have been obviated if
properly taken. (Gorman v. South Boston Iron Co., 32 Hun, 71, 72.)
Objections to the form of the affidavits (Id.), and to the notice of
motion (Livermore v. Bainbridge, 47 How. 350; 14 Abb. [N. 8.]
227), fall within the above rule.

Irregularities not referred to in the papers upon which the
motion was made will not be considered. (Shipman v. Shafer, 14
Abb. 449.) And the consideration of the General Term inust be
confined to the papers which the order states were read on the
motion. (Smith v. Smith, 11 Jones & Sp. 140; Thompson v. Tay-
lor, 18 Hun, 201.) The objection that the order does not conform
to the decision on the motion cannot be raised on the appeal.
(Ehle v. Haller, 6 Bosw. 661; 10 Abb. 287. And the merits of a
previous order cannot be considered. Thus, upon appeal from an
order confirming the report of a referee the question whether the
order of reference was properly made cannot be considered. (Law-
ton v. Green, 5 Hun, 157.) So upon an appeal from an order deny-
ing the resettlement of an order, the order sought to be resettled is
Ruwines upon THE TRIAL. 841

 

Review of orders on appeal from judgment.

 

not before the court for the review. (Lippincott v. Westray, 6 Civ.
Pro. R. 74.)

Review of orders on appeal from judgment.—An appeal
taken from a final judgment brings up for review an intermediate
order which is specified in the notice of appeal, and necessarily
affects the final judgment, and which has not already been reviewed
upon aseparate appeal therefrom, by the court or the term of the court
to which the appeal from the final judgment is taken. The right to
so review an intermediate order is not affected by the expiration of
the time within which a separate appeal therefrom might have been
taken. (Code of Civil Pro. § 1816.) The orders which may be so
specified in the notice have already been considered. (See ante,
p. 64.)

The object of thie section cited is to give an appellant a second
opportunity to appeal, if he desires, in conjunction with an appeal
from the judgment (Pier v. Van Buren, 27 Hun, 384, 387); and
where the intermediate order has been properly specified, and the
case shows the facts upon which the order was made (see Gregg v.
Howe, 5 Jones & Sp. 420), the same questions are before the General
Term that would have been presented by an independent appeal
from the order.

Where the General Term has reviewed an order, and judgment
has been entered thereon, the questions reviewed cannot be again

reviewed on appeal from the judgment. (Mahon v. Hall, 2 Hun,
154.)

ARTICLE VII.

PRINCIPLES GOVERNING THE DECISION OF THE APPEAL.

SECTION I.
Erroneous Rurines upon THe TRIAL.

In another chapter an attempt has been made to state the general
principles applied by an appellate court in determining appeals taken
upon questions of law. (Ante, p. 173.) An erroneous ruling upon the
trial, under which evidence was improperly received or rejected, or
under which questions of fact were improperly submitted to or with-
342 New Triats anp APPEALS.

 

Where the trial was by the court or a referee.

 

drawn from the consideration of the jury, will receive the same con-
sideration and have the same effect in determining the action of the
appellate court, whether the review is on an appeal to the General
Term or to the Court of Appeals. A separate discussion of the
principles governing the General Term in the disposition of appeals
founded upon erroneous rulings made upon the trial is therefore
unnecessary.

SECTION II.
Questions or Fact.

Where the trial was by the court or a referee.—The Court
of Appeals, in reviewing judgments of the court or a referee which
have been reversed by the General Term, have declared the rules
which should control an appellate court reviewing questions of fact
arising upon conflicting evidence. (See ante, p. 287.) Upon appeal,
upon the facts, from a judgment of a court or referee, the General
Term has power to pass upon the weight of conflicting evidence,
and it is its dnty to examine the evidence, and if the result is not in
accordance with truth, to reverse the judgment and direct a new
trial. (Parsons v. Brown, 5 Hun, 112; Minch v. Parker, 49
N.Y. 1,8; Shepherd v. Hill, 6 Lans. 387; Grocers’ Bank v.
Penfield, 7 Hun, 279, 284; Metropolitan Gas Light Co. v. Mayor,
‘9 Hun, 706; Betsinger v. Chapman, 24 Hun, 15, 16. J

But the General Term will not regard a referee appointed to try
an issue simply as a referee authorized to report the evidence to that
court. (2oosa v. Smith, 17 Hun, 138.) That court cannot, ina
doubtful case, upon conflicting evidence, assume the place of the
referee, and determine from the mere reading of the evidence which
witnesses have told the truth, or are best entitled to credit. (Id.)
And the general rule is, that findings of fact npon conflicting evi-
dence will not be reversed or overruled (J?usseld v. Burton, 66 Barb.
539, 542; Wright v. Saunders, 65 Barb. 214; Miller v. Insurance
Co. of North America, 1 Abb. N. OC. 470; White v. Turner, 1 Hun,
623 ; Clark v. Donaldson, 49 How. 63; Merchant v. Belding, Id.
844; Ball v. Loomis, 29 N. Y. 412; Stafford v. Leamy, 43 How.
40; 2 Jones & Sp. 269; Justice v. Lang, 7 Jones & Sp. 283; Foote
v. Loberts, 7 Rob. 294; Graham v. Meyer, 33 Hun, 489, 493),
although the General Term differs from the trial court or referee as
to the conclusion which should have been reached from the evidence.
Questions or Facr. 343

 

When the trial was by jury.

 

(Thompson v. Wood, 1 Hilt. 93 ; People’s Bank v. Heerdt,19 Daily
Register, No. 129; see Baird v. Mayor, 96 N. Y. 567.) The
power to review findings of fact, even when the credibility of wit-
nesses is involved, should only be exercised where the findings were
erroneous. (ZVlés v. Howe Machine Co., 9 Daly, 78.)

The determination of a controverted question of fact by the trial
court is not absolutely controlling upon the General Term; but to
justify a reversal it must appear that the findings of the trial court
were against the weight of evidence, or that the proofs so clearly
preponderated in favor of a contrary result that it can be said with a
reasonable degree of certainty that the trial court erred in its con-
clusions. A reversal in disregard of this rule is error. (See Baird
v. Mayor, ete., of N. Y.96 N. Y. 567; ante, p. 181.)

When the trial was by jury.—In case of judgments entered
upon the verdict of a jury the facts may be brought before the Gen-
eral Term for review by appeal from an order granting or refusing a
new trial. (See ante, p. 337.)

The powers of the court upon the appeal are broad, but the rules
which it will follow in rendering its decision are well defined. The
verdict, in so far as it depends upon conflicting evidence, will not be
disturbed. (L/ayes v. Thompson, 2 Wun, 518 ; Chaffee v. Morss, id.
602; Perry v. Lansing, 17 Hun, 34; Anapp v. Loche, 5 Jones &
Sp. 395; Case v. People, 14 Hun, 503, 511; Betsinger v. Chapman,
24 Hun, 15, 17.)

Where inferences are to be drawn by a jury from facts and cir-
cumstances submitted for their consideration the appellate tribunal
reluctantly interferes with their determination. (Maugatuck Cut-
lery Co. v. Babcock, 22 Wun, 481, 484.) Where the case is close on
the questions of fact, the appellate court, not having the witnesses
before it, nor the atmosphere of the trial aronnd it, will not disturb
the verdict (Cooper v. Eastern Trans. Line, 11 Reporter, 234) ;
although its impression upon the whole evidence is that the verdict
was not in accordance with the real truth of the case. (Cothran v.
Collins, 29 How. 155,170; see Campbell v. Kearney, 45 How. 87;
Tlead v. Smith, 44 How. 476; Dollner v. Lintz, 9 Daly, 17.) The
preponderance of evidence must be overwhelming (Cheney v. New
York Central & H. R. R. Co., 16 Hun, 415) ; or the verdict must
be entirely against the weight of evidence (Aforss v. Sherill, 63
844 New Triars anp APppza.s.

 

When the trial was by jury.

 

Barb. 21), to justify the court in setting aside a verdict depending
upon conflicting testimony.

In the case last cited it was said that there must be an abuse com-
mitted by the jurors; it must be such a verdict as evinces that it was
the result of passion, prejudice, mistake or corruption ; such a ver-
dict as shocks the common judgment, or such as is without evidence
to support it, or is so against a striking preponderance of evidence
that a common exercise of judgment demands its reversal. (And see
Colt v. Sixth Ave. R. R. Co.,1 Jones & Sp. 189.)

On the other hand it has been said that the General Term should
reluctantly interfere with an order of the trial court granting a new
trial on the minutes. (Bannon v. McGrane, 13 Jones & Sp. 517,
520.)

The verdict must be consistent, and where conflicting results are
reached as to two defendants, upon precisely the same evidence, the
verdict cannot be allowed to stand. (Hyatt v. Wew York Cent. &
Hl. hk. &. &. Co., 6 Hun, 306.)

The motion for a new trial may be on the ground of excessive or
insufficient damages, and it is for the General Term to review these
grounds on appeal. Where the jury have rendered a verdict which
in amountis clearly not justified by the evidence, and it appears
that they have gone outside of the evidence on a question of value,
a new trial should be ordered. (Schneider v. McCabe, 4 Jones & Sp.
83.) And the same rule applies where the plaintiff is entitled to
substantial damages in case the verdict isin his favor but the jury
find only nominal damages. (Cowles v. Watson, 14 Hun, 41, 44;
and see McDonald v. Walter, 40 N. Y. 551.) In actions for negti-
gently causing death, the General Term has power and it is its duty
to review the verdict and set it aside if it appears excessive, or the
result of sympathy and prejudice. (Houghkirk v. President, ete., of
D. & H.C. Co., 92. N. Y. 219.) But in actions for personal injuries,
where the verdict shows that the jury gave credit to the plaintifi’s
witnesses rather than to the defendant’s, the verdict will not be set
aside as excessive. (Harrold v. New York Hl. R. R. Co., 24 Hun,
184.) In such actions the general rule applies, and a verdict will
not be disturbed unless it is the result of passion, partiality, preju-
dice or corruption. (Minick v. City of Troy, 19 Hun, 253; Beer-
bauer v. New York Cent. & I. fe. Lk. LP. Co. 15 Tun, 559, 564;
Coleman v. Southwick, 9 Johns. 45; Gale v. New York Cent. &
H. R. BR. R. Co. 18 Wun, 1; Strohm v. New York, Lake Erie &
QuESTIONS RESTING IN DisoRETION. 845

 

Questions resting in discretion.

Western R. R. Co., 82 Hun, 20; Peck v. New York Cent. & H. RP.
&. FR. Co., 8 Hun, 286.) Verdicts are sometimes set aside by the
General Term, under special or peculiar circumstances, usually when
that court can see that the jury must have awarded punitive dam-
ages in a case where such damages are not recoverable. (See Coz v.
New York Cent. &d H. R. R. R. Co., 4 Hun, 176; Peck v. New
York Cent. &d H. R. BR. R. Co., id. 236; Welntyre v. New Fork
Cent. R. R. Co., 47 Barb. 515; If Connell v. Hampton, 12 Johns.
234, 236; Collins v. Albany & S. R. BR. Co., 12 Barb. 492.

In actions, for slander, where the defendant has justified, a verdict
awarding nominal damages will not ordinarily be disturbed as insuf-
ficieut in the absence of any evidence of dishonesty or misconduct on
the part of the jury. (Wavle v. Wavle, 9 Hun, 125.)

 

SECTION IL
Questions REsTING IN DiscrETION.

As already noticed (ante, p. 306), an appeal may lie to the Gen-
eral Term from decisions resting in the discretion of the court or
judge below. And in such cases that court has the power to review
and reverse. (People v. Globe Mutual Ins. Co., 27 Hun, 539.) The
exercise of discretion by a Special Term is reviewable by the Gen-
eral Term. (Douglass v. Haberstro, 82 N. Y. 572.) The General
Terms were designed to redress wrongs arising from an erroneons,
arbitrary or otherwise improper exercise of discretion by the Special
Term. (Matter of Duff, 41 low. 350; 10 Abb. [N. 8.] 416.) But
the court does not encourage appeals upon mere matters of discre-
tion, and will only interfere when the discretion seems to have been
abused or it is a plain case of its unwise exercise. (Morrison v.
Agate, 20 Hun, 23; Bryan v. Durrie, 6 Abb. N. C. 135.) Unless
it ean see that the exercise of discretion has been abused, or is
unwise it affirms the order. (Jones v. Hoyt, 63 How. 94; 10 Abb.
N. C. 324.)

So far as the cross-examination of a witness relates either to facts
in issue or relevant facts, it may be pursued by counsel as a matter
of right ; but when its object is to ascertain the accuracy or credi-
bility of a witness, its method and duration are subject to the dis-
cretion of the trial judge, and unless abused, its exercise is not the
subject of review. (Langley v. Wordsworth, 99 N. Y. 61.)
846 New Trrats anp Arprats.

 

Code provisions.

 

ARTICLE VIII.

SUBMISSION OF A CONTROVERSY.

SECTION I.
Cone Provisrons.

The parties to a question in difference, which might be the sub-
ject of an action, being of full age, may agree upon a case con-
taining a statement of the facts upon which the controversy depends ;
and may present a written submission thereof to a court of record,
which wonld have jurisdiction of an action bought for the same
cause. The case must be accompanied with the affidavit of one of
the parties, to the effect that the controversy is real, and that the
submission is made in good faith, for the purpose of determining the
rights of the parties. The submission must be acknowledged or
proved, and certified, in like manner asa deed, to be recorded in the
county where it is filed. (Code of Civil Pro. § 1279.)

The case, submission and affidavit, must be filed in the office of
the clerk of the court to which the submission is made. If the sub-
mission is made to the Supreme Court, they must be filed in the
office of the county clerk, if any, specified in the submission ;
if no county clerk is so specified, they may be filed in the office of
any county clerk. ‘The filing is a presentation of the submission ;
and thenceforth the controversy becomes an action; end each pro-
vision of law relating to a proceeding in an action applies to the sub-
sequent proceedings therein, except as otherwise prescribed in the
next section. (Id. § 12&0.)

An order of arrest, an injunction, or a warrant of attachment,
cannot be granted in such an action; the costs thereof are always in
the discretion of the court, but costs cannot be taxed for any pro-
eccdings before notice of trial: the action must be tried by the
court, upon the case alone; and the case, submission, affidavit, and a
certified copy of the judgment, and of any order or paper neces-
sarily affecting the judgment, constitute the judgment-roll. If the
action is in the Supreme Court, a Superior City Court, or the
City Court of New York, it must be tried and judgment rendered
Waat ContTRovERSIEs MAY BE SUBMITTED. 847

 

What controversies may be submitted.

 

at the General Term. If the statement of facts contained in the
case is not sufficient to enable the court to render judgment, an
order must be made dismissing the submission, without costs to
either party; unless the court permits the parties, or, in a proper
case, their representatives, to file an additional statement, which it
may do in its discretion, without prejudice to the original statement,

(Id. $ 1281.)

SECTION II.

Parrizs.

The parties must be of full age, and where it appears that the
rights of infants are involved, the proceedings must be dismissed.
(Fisher v. Stilson, 9 Abb. 33.) An infant cannot submit a contro-
versy, nor can his guardian do so in his behalf. (Lathers v. Fish, 4
Lans. 213.) The submission should be made by the parties in inter-
est, and their names should be given. (Dickinson v. Dickey, 76 N.
Y. 602.) The rights of one not a party cannot be passed upon
directly or foreclosed. (Kennedy v. Mayor, 79 N. Y. 861; Wood
v. Squires, 60 N. Y. 191; Union Nat. Bank v. Kupper, 63 N. Y.
617.) If the necessary parties are not before the court they must be
brought in. (Wavle v. Tuttle, 11 Week. Dig. 186.) And this can-
not be done unless the parties sought to be brought in consent.
(Lobart College v. Fitzhugh, 27 N. Y. 130, 134.)

SECTION III.
Wuat OonTRoversiIEs MAY BE SUBMITTED.

A submission can be made in a case where an action would lie.
It must appear that there was, at the time the snbmission was made,
a controversy or question of difference between the parties upon the
point presented for decision. The court will not decide mere
abstract questions. (People v. Mutual Endowment & Accident
Association, 92 N. Y. 622.) And if a question has not yet arisen
between the parties, it will not decide what their rights will be when
the question does arise. (Hobart College v. Fitzhugh, 27 N.Y.
130.)

If an action is the only remedy, the controversy cannot be sub-
348 New Trrats anp APPEALS.

 

What questions may be considered.

 

mitted. Thus a question between two claimants to a public office as
to the title to the office, cannot be submitted. (City of Buffalo v.
Mackay, 15 Hun, 204.)

A pending action cannot be submitted, and where, after an action
is commenced, a case is agreed upon and submitted, the action must
be deemed abandoned, or at least suspended, and the case must be
considered and determined independent of it, and if followed by a
judgment the action is discontinued. (Van Sickle v. Van Sickle, 8
How. 265.)

SECTION IV.
Waar Questions MAY BE CONSIDERED.

The case submitted must present questions of law only, and all
the facts npon which the controversy depends, and which are neces-
sary to give ground for a conclusion of law, must be agreed upon,
or the court cannot pronounce judgment. (Clark v. Wise, 46 N.
Y. 612.)

The court will not decide whether or not a sale was fraudulent,
when the intent with which it was made is left for it to determine.
(Id.) The court is confined to the facts agreed upon, and can make
no inferences, or in any way depart from or go beyond the state-
ment presented. (Hearing v. Irwin, 55 N.Y. 486.)

The case should indicate the judgment claimed or desired.
(Williams v. City of Rochester, 2 Lans. 169. See Kennedy v.
Mayor, 79 N. Y. 361, 362.) But the court is not bound to answer
legal interrogatories propounded, which are not decisive of the
proper judgment to be rendered on the facts stated, and then fix the
judgment to be rendered as they shall be answered. The parties
are to state the facts, and the court is to render judgment thereon.
( Wood v. Squires, 60 N. Y. 191.)

Only questions between the parties to the submission can be con-
sidered. (Union Nat. Bank v. Kupper, 63 N.Y. 617; see ante,
p- 347.)
Supmission, Huartne anp Dererminartion. 349

 

Submission, hearing and determination.

 

SECTION V.

Supmission, Hearine AnD DETERMINATION.

The affidavit with which the case is required to be accompanied
(Code of Civil Pro. § 1279, ante, p. 346), to the effect that the con-
troversy is real, and that the submission is made in good faith, etc.,
must be made by one of the parties; and the affidavit of an attorney
is not a compliance with the statute, when there is a natural person,
a party to the proceeding, by whom it may be made. (Bloomfield
v. Ketcham, 95 N. Y. 657.)

From the filing of the submission the controversy becomes an
action, and if it is in the Supreme Court, a Superior City Court or
the City Court of New York, it must be tried, and judgment ren-
dered at the General Term. (Ante, p. 346; Waring v. Oeil, 15
Hun, 105.)

The controversy is an enumerated motion (Rule 38) ; and may be
noticed for the first day of the term by either party, on a notice of
eight days. (Rule 40.) The plaintiff must serve and furnish the
necessary papers for argument, duly printed as in cases of appeal.
(Rule 41 ; see ante, p. 316.) If he neglect to do so, the opposite party
is entitled to move on affidavit, and on four days’ notice of motion,
that the cause be struck from the calendar (whichever party may
have noticed it for argument), and that judgment be rendered in his
favor. (Rule 40.)

The court is bound to give such judgment as the facts require,
whether the relief be legal or equitable. (Graves v. Brinkerhoff, 4
Hun, 305; 6 N. Y. Sup. Ct. [T. & C.] 630.)
850 New Trias ann APPEALS.

 

Judgment of affirmance,

 

ARTICLE IX.

JUDGMENT OR ORDER ON APPEAL.

SECTION I.
AFFIRMANCE.

Of judgment.—A judgment affirming a judgment from which
an appeal has been taken, does not expressly and in terms award to
the respondent a sum of money or other relief which was awarded
to him by the judgment so affirmed. (Code of Civil Pro. § 1317.)
The General Term does not direct a new judgment to be entered for
the original claim, but simply declares that it is satisfied to let the
former judgment stand, and therefore simply affirms it. This is all
that the judgment should contain, unless costs are awarded, in which
case it should adjudge the cost as adjusted to the stesniline party.
(Eno v. Crooke, 6 How. 462; De Agreda v. Mantel, 1 Abb. 130 ;
Beardsley Scythe Co. v. Foster, 36 N. Y. 561, 567; 34 How. 97,
102; Beers v. Hendrickson, 45 N. Y. 665.) All sums and amounts
secured by the original judgment should be excluded from the judg-
ment of affirmance. (Lalsey v. Flint, 15 Abb. 367.)

The judgment itself must be appealed from, or it cannot be
affirmed. It cannot be affirmed on appeal from an order denying a
motion for a new trial. (Diller v. Hagle Life & Health Ins. Co., 3
E. D. Smith, 184.)

Affirmance in part.—The General Term has power to affirm a
judgment wholly or partly. (Code of Civil Pro. § 1817.)

Where a judgment is not entire, but is for different things, sep-
arable in their nature and separated on the record, it may be affirmed
in part and reversed in part. Story v. New York & Harlem R. LR.
Oo., 6 N. Y. 85, 89; Lawson v. Pinkney, 8 Jones & Sp. 187; see
Shaw v. Davis, 55 "Barb. 389, 403.) But a judgment cannot be
affirmed in part when a new trial is ordered as to the part which is
reversed. (Id. ; Wolstenholme v. Wolstenholme File Manuf. Oo., 64
N. Y. 272.) Although an action embraces two distinct causes, an
erroneous instruction : as to one of them, and a general verdict in the
AFUIRMANCE. 851

 

Affirmance as to some of the parties,

 

action, necessitate a new trial. (Pollett v. Long, 56 N. Y. 200; see
Zung v. Howland, 5 Daly, 136.) But in anaction on contract, where
a recovery has been had upon distinct and separate items and claims,
and error either of fact or of law has been committed on the trial in
respect to one or inore of the claims embraced in the recovery, the
General Term, if no other error exists, may, instead of reversing the
judgment absolutely, reverse it only as to the erroneous items and
affirm it as to the residue, provided the plaintiff consents to forego
his claim to recover them, and the items as to which the error exists
are separable and distinguishable from the others. (Whitehead v.
Kennedy, 69 N.Y. 462, 468; Crim v. Starkweather, 88 N. Y. 839;
see Mygatt v. Willcox, 1 Lans. 55; Risley v. Squire, 53 Barb. 280.)
In such cases the court has power to aflirm if the plaintiff stipulate
to reduce his recovery to a proper amount, and otherwise to reverse ;
or it may reverse absolutely and grant a new trial, and it is discre-
tionary with it which order to make. (Godfrey v. Moser, 66 N. Y.
250.) <8

Affirmance as to some of the parties.—The General Term
may affirin a judgment as to any orall of the parties. (Code of Civil
Pro. § 1317.) Where there are several defendants, and the judg-
ment appealed from is in their favor, such judgment may be aflirmed
as to one or more of the defendants, and reversed and a new trial
ordered as to the other defendants, when separate judgments would
have been proper below. (Campbell v. Perkins, 6 N. Y. 86, note;
see 8 N. Y. 430.) In such a case the General Term not only has the
power, but it is its duty to affirm asto a part of the defendants and
reverse as to others, if such a judgment is required by the facts
established. (JZubbed? v. Meigs, 50 N. Y. 480, 489. See Johnson
v. Albany & S. Z. Pe. Co., 54 N. Y. 416, 429.) The same rule
applies under the same circumstances, where the judgment is against
joint defendants. In an action against joint tort feasors, where
the judgment is against two defendants, and only one appeals, the
judgment may be reversed as to the appellant only. (@eraud v.
Stagg, 4 E. D. Smith, 27; 10 How. 369; see Van Slyke v. Snell,
6 Lans. 299.) It does not follow, however, that the power must
be exercised becanse it exists. (Howk v. Bishop, 10 How. 509.)

If the cause of action is joint, and a several judgment would not
be proper, the rule does not apply (Pollock v. Webster, 16 Hun, 104);
and the court cannot affirm the judgment unless the plaintiff stipu-
852 New Triats ano APPEALS.

 

Of order—Granting a new trial.

 

lates that the complaint be dismissed as to the defendant as to whom
the judgment is erroneous. (Id.)

Where a motion to dismiss the complaint of a joint plaintiff is
erroneously denied, the General Term should correct the error by
making the order asked for upon the trial; and if there be no other
error, should affirm the judgment in favor of the other defendants.
(Stmar v. Canaday, 53 N. Y. 298.) So a judgment may be affirmed,
in so far as it dismisses a complaint as against one defendant, and
reversed as to the other defendants. (Zaft v. Wright, 47 How. 1.)

The court cannot reverse a judgment as to all the defendants,
grant a new trial as to one, and order judgment against another, for
a cause of action which a jury did not pass upon but which they
might have passed upon. (Arthur v. Griswold, 55 N. Y. 400.)

Of order.—Upon affirming an order the General Term makes an
order to that effect, which is duly entered, and the original order
stands as the order to be enforced.

Final judgment.—When an order or judgment is wholly or
partly affirmed upon an appeal to the General Term, and no issue of
fact remains to be tried, the General Term may, in its discretion,
render final judgment, unless it permits the appellant to amend or
plead over. (Code of Civil Pro. § 1224.)

SECTION II.
REVERSAL.

Inserting grounds of reversal in the order.— Where a judg-
ment rendered upon a trial by.a referee or by the court without a
jury, is reversed upon questions of fact as well as of law, that fact
should be recited in the order of reversal. Otherwise the Court of
Appeals will not consider questions of fact upon an appeal to that
court. (See ante, p. 278.) But this is not necessary where the trial
was by jury. (Goodwin v. Conklin, 85 N. Y.21.) There is no
authority for inserting the grounds of the reversal in the order
where the trial was by jury. (J/arris v. Burdett, 73 N. Y. 136.)

Granting a new trial.—The General Term, upon reversing a
judgment, must grant a new trial, unless it is perfectly plain that
REVERSAL. 853

 

Judgment absolute.

 

no possible state of proof applicable to the issue in a case will entitle
the respondent to recover. It must affirmatively appear, as an inevi-
table necessity, that he cannot succeed upon a new trial. (oot v.
Kina Life Insurance Co., 61 N. Y. 571; Stowill v. Hazlett, 57
N. Y. 637; Goodwin v. Conklin, 85 N.Y. 21, 26; Gawthrop v
Leary, 89 N. Y.622; Capron v. Thompson, 86 N. Y. 418, 421.)
The fact that it is improbable that he can succeed is not sufficient.
(Guernsey v. Miller, 80 N. Y. 181.) Where the plaintifi’s alle-
gations are all put in issue by the answer, and upon the trial
are found in favor of the, plaintiff, but judgment is rendered in
favor of the defendant, the General Term, upon reversing the
judgment, inust grant a new trial. It cannot be said in such a case
that the defendant is bound by the facts as found. Having revovered
judgment he was not bound to file exceptions, or to insert in the
case evidence to show that the facts were controverted. (hrichs v.
DeMill, 75 N. Y. 870.)

But if upon an appeal from a judgmentin favor of the defend-
ant, entered upon the report of a referee, the General Term decides,
that upon the facts found, the plaintiff and not the defendant is
entitled to judgment, and that the only error committed by the
referce consists of a misconstruction of the legal effect of the facts
proved, it may direct judgment for the plaintiff without ordering a
new trial. (Price v. Price, 35 Hun, 432.)

Where the General Term decides that a judgment on a contract
or guantum meruit is erroneous, it must order a new trial. It can-
not examine conflicting evidence and determine what sum should be
recovered and order judgment therefor. (Whitehead v. Kennedy,
69 N. Y. 462.)

If the appellant is entitled to a new trial he is entitled to it
absolutely, and conditions cannot be imposed, as that testimony
taken on the former trial be read on the new trial. (Bruce v. Daven-
port, 3 Keyes, 472; 5 Abb.[N. 8.] 185 ; Bissell v. Hamlin, 13 Abb.

. 28.)

If the judgment is wrong, even in part, it is proper to order a
new trial. (American Nat. Bank v. Wheelock, 82 N. Y. 118; see
Godfrey v. Moser, 66 N. Y. 250, 253.)

Judgment absolute.—Although, as a general rule, a new trial
must be granted when a judgment is reversed, there are cases where
it is proper for the General Term to render judgment absolute for

23
354 New Trrats anp ApPEALs.

 

Rendering the judgment which should have been rendered below.

 

the appellant. Thus where the action had abated and the trial was
a nullity (Cow v. New York Cent. @ H. R. R. R. Co., 4 Hun, 176,
180; 6 N. Y. Sup. Ct. [T. & C.] 405), or where the defendant has
died since the. trial, and the cause of action did not survive his
decease, no new trial should be ordered. (Comstock v. Dodge, 47
How. 97; and see Spooner v. Keeler, 51 N. Y. 527, 536.) Where it
appears as a question of law that there can be no recovery on a
new trial, it will not be ordered. And where the facts are before the
General Term, and there isno dispute as to them, and the case is a
proper one for judgment absolute for the appellant, it may be
ordered. (Peterson v. Walsh, 1 Daly, 182; Newell v. Wheeler, 4
Robt. 247, and see the next section.)

Thus where a referee finds for the defendant, and the General
Term holds that upon the facts found by the referee the plaiutiff
and not the defendant is not entitled to judgment, and that the only
error of the referee consists in a misconception of the legal effect of
the facts proved, it may direct final judgment for the plaintiff.
(Price v. Price, 33 Wun, 482.)

SECTION III.
MopirroaTion.

Rendering the judgment which should have been rendered
below.— Where the faets have been found upon the trial and are
not in dispute the General Term may render the judgment which
should have been rendered below; that is, it may apply the law to
facts correctly found. (Hannay v. Pell, 3 E. D. Smith, 423 ; Ped-
ler v. Darrin, 59 Barb. 651; Opittenden v. Empire Stone Dressing
Co., 6 Duer, 30; 3 Abb. 71; Leonard v. Martin, 52 Barb. 118;
Conroy v. Campbell, 13 Jones & Sp. 326; Beach v. Cooke, 39 Barb.
360; 28 N. Y. 508.) But the court cannot find facts upon which
to base a judgment. The facts must either be conceded or found
upon the trial. (Purchase v. Mattison, 25 N.Y. 211; 25 How.
161; Andrews v. New Jersey Steamboat Co., 11 Hun, 490, 495 ;
Cuff v. Dorland, 57 N. Y. 560.) Thus, where a referee finds that
the defendant’s damage from defects in the goods furnished by the
plaintiff was from «819 to $15,” but concludes that he cannot be
allowed for the same because he claimed to set up a counterclaim,
the General Term, upor reaching a different conclusion upon the fag
MopIFICATION. 355

 

Reducing the recovery.

 

cannot reduce the recovery by $12 and affirm the judgment, but
must grant a new trial. In sucli a case the amount to be deducted
is indefinite and uncertain, and the court cannot determine it with-
out assuming the province of a jury. (Moffet v. Sackett, 18 N. Y.
522; Burling v. Gunther, 63 How. 68; see Whitehead v. Kennedy,
69 N. Y. 462.

Where the death of the defendant has made incompetent the only
evidence which the plaintiff had to establish his case, the General
Term should order the proper judgment instead of ordering a new
trial. (Baker v. Lever, 5 Hun, 114; 67 N. Y. 304, 310.)

A judgment in an action to recover personal property, which is
absolute for the value of the property, may be modified so as to
make it in the alternative. (Stauf? v. Maher, 2 Daly, 142.) Anda
judgment dismissing a complaint absolutely may be modified by
adding to it a direction that the case stand over to add parties.
(Loeschigk v. Addison, 7 Rob. 506.) Asa general rule, an applica-
tion to correct a judgment as irregular in form should be made at
Special Term, and the General Term will not make the correction in
the first instance. (Sluyter v. Williams, 1 Sweeny, 215; 387 How.
109.)

Reducing the recovery.—Subject to the rule above stated as to
the facts being conceded or found, it is well settled that when the
only error in a judgment is an excess in amount, and suchi excess
consists of a distinct item or can be definitely ascertained by mere
computation, the court may make the reversal of the judgment
depend upon the election of the party to relinquish the ascertained
excess, and, in case of his so electing, may affirm the judgment.
Choteau v. Suydam, 21 N. Y. 179, 185; Sears v. Conover, 3 Keyes,
113; 33 Ilow. 3245 see ante, p. 351.)

In Whitehead v. Kennedy (69 N. Y. 462, 469), Anprews, J.,
says, “ In actions of tort, for injuries to the person, the General ‘Term
has, on appeal from the order of the Special Term, made on motion
to set aside a verdict for excessive damages, made a conditional order
reversing the judgment and granting a new trial unless the plaintiff
would consent to reduce the damages to a specified sum, and affirm-
ing it for that amount if the plaintiff should consent to the reduction,
This seems to be.a comparatively modern practice, and cases in
this court have assumed that the General Term had the power on
appeal in these cases, if the verdict is deemed excessive, to make the
356 New Triats anp APPEALS.

 

Increasing the recovery—Of orders.

 

conditional order mentioned. . . The General Term, in eonsider-
ing whether the damages are excessive, assume that the controverted
facts are as found by the jury, and thus inquire whether, in view of
these facts, the verdict should stand, or, if not for the full amount,
for what amount.”

In actions for malicious prosecution it is held that the General
Term has no power to make such an order reducing damages.
(Cassin v. Delany, 88 N. Y. 178; 6 Abb. N. 8.15; TZhaule v.
Krekeler, 17 Hun, 388; see Peck v. New York Cent. & H. &. LR.
Co., 8 Hun, 286, 289.) And in the later cases in which the damages
for personal injuries have been held excessive the court has not ren-
dered its decision in the alternative, but has ordered a new trial.
(Peck v. New York Cent. & HI. R. &. &. Co., 4 Hun, 236, 239 ;
Langley v. Siath Av. R. R. Co.,16 Jones & Sp. 542. See Sourwine
v. Truscott, 25 Hun, 67.)

Increasing the recovery.—In actions on contract the court
would seem to have power to increase the recovery where the facts
are before it, and the amount which the plaintiff should recover, and
which he has failed to recover by error of law, nay be ascertained
by computation. (Canaduy v. Stiger, 3 Jones & Sp. 423.) But
where the referee found that the plaintiff would be entitled to recover
a specified sum from the defendant, a municipal corpcration, but for
a limit of appropriation, and found that he was entitled to a smaller
sum by reason of such limitation, the General Term held that it had
no power to modify the judgment by increasing it, but must affirm
it, althoagh the limit of appropriation was not applicable. (Héngs-
ley v. City of Brooklyn, 5 Abb. N.C.1; see Cromwell v. Burr, 9
Daly, 482; 12 Week. Dig. 120.)

Of orders.—The General Term, upon appeal from an order, is
not confined to a simple affirmance or reversal, but may make
the order which should have been made below in the first instance.
(Howard v. Freeman,,3 Abb. [N. 8.] 292; 7 Robt. 25; Anauwer v.
Globe Mut. Life Ins. Co., 14 Jones & Sp. 870.)° And where the
vacating or affirmance of an order 1s in its discretion, it may attach
any condition it sees fit to the affirmance of the order. (Syracuse
Savings Bank v. Syracuse, Chenango & New York R. BR. Co., 88

N. Y. 110.)
Entry. 857

 

Judgment-roll—Filing judgment-roll and entering judgment or order.

 

SECTION IV.
Enrry.

Judgment-roll.—Where judgment of affirmance is rendered
upon the appeal, the judgment-roll consists of a copy of the judg-
ment annexed to the papers upon which the appeal was heard.
Where subsequent proceedings are taken at the Special Term or
Trial Term before the entry of final judgment, the judgment-roll
must also contain the proper papers relating thereto. (Code of
Civil Pro. § 1354.) Thisrule applies where a part of the judgment
appealed from is permitted to stand.

Where the General Term reverses a judgment the reversal is as
a rule followed by a new trial; but in those cases where judgment
absolute is directed the judgment-roll may be made up as indicated
above, or it may perhaps be sufficient to attach a judgment of rever-
sal to the original judgment-roll.

Filing judgment-roll and entering judgment or order.—
The judgment rendered or the order made upon the appeal must be
entered, and the judgment-roll, or the papers upon which the appeal
was determined, as the case requires, must be filed in the office of the
clerk of the county where the judgment or order appealed from is
entered. If the appeal is determined at a General Term held in
another county, the clerk of that county must, at the expense of the
successful party, transmit a certified copy of the determination, and
the other papers, if any, required to be filed, to the clerk of the
county where the judgment or order is to be entered. (Code of Civil
Pro. § 1855.)

The memorandum handed down by the General Term of- the
decision of the appeal is not the judgment, but simply the authority
for an entry of the judgment. (Eno v. Crooke, 6 How. 462; Anapp
v. Loche, 82 N. Y. 366.) On filing the decision a formal judg-
ment should be prepared and annexed to the papers upon which the
appeal was heard, and this constitutes the judgment-roll to be filed.
The judgment thus prepared should be entered in the judgment
book and attested by the signature of the clerk. The Code (§ 1288)
imposes the duty of preparing such judgment-roll and furnishing it to
358 New Triars anp Arprats.

 

When a re-argument will be granted or refused.

 

the clerk, upon the attorney for the party at whose instance the final
judgment is entered, and if he fail to perform his he may be directed
to perform it by the court. (Anapp v. Roche, 82 N. Y. 366; 14
Jones & Sp. 200.) ,

ARTICLE X.

RE-ARGUMENT.

SECTION I.
Wuen a Re-ARGUMENT WILL BE GRANTED OR REFUSED.

The power of a General Term to grant a re-hearing of a matter
determined by a previous General Term, upon a hearing of both
parties, is unquestionable. (Bolles v. Duff, 59 Barb. 567.) The
application is addressed to the sound discretion of the court.
(Fleischmann v. Stern, 90 N.Y. 110; Butterfield v. Radde, 8
Jones & Sp. 169.)

The usual mode allowed by law for correcting errors of the Gen-
eral Term is by appeal, and it is only in courts of last resort, where
there is no other remedy for an oversight or mistake, that re-argu-
ments are permitted, unless in extraordinary cases. (Veweld v.

Wheeler, 4 Robt. 190.)

It is usually a sufficient ground for denying an application for a
re-argument that there is a remedy by appeal. (Giles v. Austin, 2
Jones & Sp. 540.)

One of the grounds upon which the application is sometimes
granted is, that since the decision the Court of Appeals has decided
adversely to the General Term the precise question involved. In
such cases the General Term, in the exercise of its discretion, will
save the party the labor and expense of going to the higher court to
correct what the General Term must assume to have been an error
on its part. (Butterfield v. Radde, 8 Jones & Sp. 169.) Thus
where the Court of Appeals decides that the case was not a proper
one for a motion for a new trial, and therefore the case was not
properly before the General Term on the merits, a re-argument
should be granted. (Produce Bank v. Morton, 10 Jones & Sp.
124.)

But the rule does not apply where the Court of Appeals assigns
ReE-aARGUMENT. 359

 

When a re-argument will be granted or refused.

 

no grounds for its decision, and hands down no opinion. The Gen-
eral Term will not grant a re-argument where the decision of the
Court of Appeals was on technical grounds, not affecting the general
law of the case or the real merits of the controversy. (Id.) Where,
however, the decision of the case at bar depends, by stipulation, upon
the decision of the case in the Court of Appeals, a re-argument will
be ordered. (Butterfield v. Radde, 8 Jones & Sp.169.) To render
the rule as to an adverse decision in the Court of Appeals applicable,
the facts of the two cases must be similar, and the cases analogous.
(Coleman v. Livingston, 4 Jones & Sp. 231; 45 How. 483; Taylor
v. Grant, 4 Jones & Sp. 261.) A re-argument will be granted when
the former decision of the General Term was based in part upon a
case subsequently reversed by the Court of Appeals. (freeman v.
Falconer, 12 Jones & Sp. 579; Hayner v. American Popular Life
Ins. Co., 4 Jones & Sp. 211.)

: A re-argument may be granted when an important point in the
case was not considered by the court. But the facts must be undis-
puted, and it must clearly appear that the point was not considered
at all. (Guidet v. Mayor, 5 Jones & Sp. 124.) It does not follow
that because an opinion of the court does not consider and discuss
all the decisions referred to by counsel on the argument, or the
questions considered on their briefs, that those decisions and ques-
tions have not been carefully examined, and such omission affords no
ground for a new trial. (Zaylor v. Grant, 4 Jones & Sp. 259;
Weston v. Ketchum, 7 Jones & Sp. 552.)

The fact that counsel failed to present authorities (2ector, ete. v.
Higgins, 4 Robt. 372); or that he overlooked material points (70m
vy. Levy, 6 N. Y. Sup. Ct. [T. & C.] 253); or was not duly prepared
to argue the appeal (Drucker v. Patterson, 2 Hilt. 135), isno ground
for ordering a re-argument.

A re-argument should not be ordered merely for a preponderance
of evidence on one side when the evidence is conflicting and the pre-
vious General Term has decided against such preponderance. (Vew-
ell v. Wheeler, 4 Robt. 190; see Fisher v. Merwin, 25 How. 284.)
And a re-argument will not be granted where the party has allowed
his time within which to appeal to the Court of Appeals to expire.
(Cuykendall v. Douglass, 17 Week. Dig. 315.)

The Court of Common Pleas has adopted the rule of the Court
of Appeals as laid down in Mount v. Mitchell (82 N. Y. 792)
namely, that motions for re-arguineut must be founded on papers
360 New Trrats anp APppPrEALs.

 

Proceedings to obtain a re-argument.

 

showing clearly that some question decisive of the case and duly
submitted by counsel, has been overlooked by the court ; or that the
decision is in conflict with an express statute, or with a controlling
decision, to which the attention of the court was not drawn through
the neglect or inadvertence of counsel. (Com. Pleas, Rule 13; Cur.
ley v. Tomlinson, 5 Daly, 283; Banks v. Carter, 7 Daly, 417.)

SECTION Ii.
Proceepines ro Ostarn A RE-ARGUMENT.

A motion for a re-argument shonld be brought before the Gen-
eral Term, upon eight days’ notice to the adverse party (Rule 37),
upon a day designated asa motion day. The affidavits and papers
upon which the motion is made must clearly show the grounds upon
which the re-argument is asked. (See Weston v. Ketchum, 7 Jones
& Sp. 552.)

In the First Department motions for re-argument will not be heard
orally, but the same may be submitted on written or printed papers,
on any motion day during the term. (Special Rules, First Dept.)
In the Superior Court of New York, the motion must be submitted
on the papers, without oral argument. (Supr. Ct. Rule 6, subd. 4.)

Where a rehearing is granted it is heard upon the same record.
The General Term has no power to allow the party to make an
amended case and hear the re-argument thereon. ( Wright v. Terry,
24 Hun, 228.)
CHAPTER IV.

APPEAL TO THE SUPREME COURT FROM AN INFERIOR
COURT.

ARTICLE I.

JURISDICTION.

SECTION IL
From wat Court an AppraL MAY BE TAKEN.

Tur Code provides that an appeal may be taken to the Supreme
Court from a final judgment rendered by a County Court, or by any
other. court of record possessing original jurisdiction, where an
appeal therefrom to a court, other than the Supreme Court, is not
expressly given by statute. (Code of Civil Pro. § 1840.). It also
provides, that an appeal may be taken to the Supreme Court from
an order, affecting a substantial right, made by the court or a judge
in an actiou brought in, or taken by appeal to a court specified in the.
section last cited. (Id. § 1342.)

_ The words “ possessing original jurisdiction,” as used in section
1340 of the Code, are simply descriptive of the courts of record,
other than County Courts, from whose judgments an appeal may be
taken to the Supreme Court. They do not limit the right of appeal
to judgments rendered by such courts in the exercise of their origi-
nal jurisdiction. (Warner v. Henderson, 25 Hun, 303.)

Surrogate’s Courts.—At the time of the enactment of the
foregoing provisions, a Surrogate’s Court was not a court of record,
and hence was not embraced in the original scheme provided by the
Code for appeals from courts of record to the Supreme Court.

The amendment making a Surrogate’s Court a court of record, did
not have the effect of bringing an appeal from the determination of
asurrogate within the provisions of title 3 of chapter 12 of the
562 New Triats anp APPEALS.

 

The City Court of Yonkers.

 

Code, as that title only applies to appeals from judgments or orders
rendered or made in an action (Code of Civil Pro. §§ 1340, 3343,
subd. 20; and § 1342), and does not embrace decrees or orders made
in a special proceeding before a surrogate. Appeals from the
decrees or orders of surrogates, are regulated by special provisions
of the Code. (Id. §§ 2568-2589.) Except so far as the general pro-
visions are made applicable by direct reference, the peculiar pro-
visions relating to the taking and perfecting of an appeal to the
Supreme Court from the decree or order of a surrogate, renders it
necessary to consider them separately, although such an appeal must
be heard, the judgment or order made thereon must be entered, and
the papers must be filed in the same manner, and the effect of the
judgment with respect to the proceedings in the Surrogate’s Court,
is the same as where an appeal is taken to the Supreme Court from
a final judgment or an order of an inferior court as prescribed in
title 3 of chapter 12 of the Code. (Id. § 2585.)

The City Court of Yonkers is a court of record possessing
original jurisdiction, and an appeal may be taken from certain judg-
ments and orders thereof directly to the Supreme Court. (See ante,
p- 27.) But as the statute expressly gives an appeal from its other
judgments and orders to the County Court of Westchester County,
and also prescribes specially the mode of perfecting, hearing and
determining appeals taken from the City Court, it will be more
convenient to consider such appeals in another chapter.

SECTION II.
Waar Jupgments or an Inrerion CourT MAY BE REVIEWED.

The appeal given by section 1340 of the Code is limited to final
judgments rendered by a county court or by any other court of
record possessing original jurisdiction, from which an appeal to a
court other than the Supreme Court is not expressly given by statute.
The word “judgment” as used in this section refers to a judgment
in a civil action as distinguished from a determination made in a
criminal action or in a special proceeding. (See Code of Civil Pro.
§ 3343, subd. 20.) It embraces a judgment entered upon the report
of a referee in an action pendiny in the Coanty Court, and all other
final judgments rendered in such court without regard to whether
Waar Jupements MAY BE REVIEWED. 863

 

What judgments may be reviewed.

 

the action was originally commenced therein or was brought in by
appeal. (Cook v. Darrow, 22 Hun, 306; Kilmer v. O’ Brien, 13
Hun, 224.) It does not embrace a judgment or determination of
a Court of Sessions in a proceeding to have the defendant adjudged
the father of a bastard child. (People v. Carney, 29 Hun, 47. But
see People v. Davis, 15 Hun, 209.) The question as to what judg-
ments are final within the meaning of the term as used in the sev-
eral provisions of the Code regulating appeals has been heretofore
considered. (See ante, p. 210.) It was held under the old Code
that an order of the County Court dismissing an appeal from a
judgment rendered by a justice of the peace, upon the ground that it
was not taken in time, was a final judgment within the meaning
and spirit of that act, and that it could be reviewed upon appeal to
the Supreme Court. (Pearson v. Lovejoy, 35 How. 193; 53
Barb. 407.) It is perhaps immaterial, so far as the right to appeal is
concerned, whether the determination of the County Court in such
cases is to be regarded asa final judgment or as an order (see Code
of Civil Pro. § 1342), but it is important to distinguish between
final judgments and mere orders, as in the one case security is neces-
sary to perfect the appeal to the Supreme Court, and in the other it
isnot. (Id. §$ 1341, 1343.)

A decree rendered by a county judge on the final accounting of
an assignee for the benetit of creditors is in the nature of a final
judgment, and not only may but must be appealed from in the
same manner as a final judgment in an action commenced in the
County Court. (Matter of Beckwith, 15 Hun, 326; Laws of 1877,
chap. 466, § 22.)

So a decision of the County Court affirming the determination of
drainage commissioners in a proceeding instituted under chapter 888
of the Laws of 1869, as amended by chapter 303 of the Laws of
1871, is in the nature of a final judgment, and an appeal therefrom
may be taken to the General Term of the Supreme Conrt. (Burk
v. Ayers, 19 Hun, 17. Butsee Matter of Swan, 33 Hun, 200.)

So a judgment of the County Court, affirming a final order or
judgment of a justice of the peace in a summary proceeding is
appealable to the General Term of the Supreme Court. (Warner
v. Henderson, 25 Hun, 303; Code of Civil Pro. § 2260.) The right
to appeal from a judgment of a court specified in section 1340 exists
equally whether the judgment was rendered in the exercise of
original or appellate jurisdiction. (Id.)
364 New Trrats anp APPEALS.

 

Inter iooutory judgmen:s and intermediate orders.

In some of the illustrations given of the cases in which an appeal
may be taken to the Supreme Court, the appeal was held to be
properly taken although based upon a determination which could
not technically be classed as a judgment in an action. The right to
appeal in such cases is not derived primarily from the provisions of
section 1340 of the Code, but from some special statute giving the
right of appeal as from a judgment in an action.

Interlocutory judgments and intermediate orders.—An
appeal from a final judgment will bring up for review an interlocu-
tory judgment, or intermediate order, which is specified in the notice
of appeal, and necessarily affects the final judgment, and which has
not already been reviewed by the Supreme Court, although the time
for taking a separate appeal from such judgment or order has
expired. (Code of Civil Pro. § 1816. See also Id. § 1301; ante,
p. 49.)

SECTION IIT.
APPEALS FROM ORDERS MADE IN AOTI NS.

An appeal may be taken to the Supreme Court from an order,
affecting a substantial right, made by the court or a judge in an
action brought in or taken by appeal to the County Court or any
other court of record possessing original jurisdiction. (Code of
Civil Pro. § 1342.)

Before the amendment of the section cited in 1881, the right to
appeal given thereby was limited to orders made in an action
brought in the courts specified, and did not extend to orders made
in actions taken to such courts by appeal. (See P%sh v. Thrasher,
21 Hun, 15; Andrews v. Long, 79 N. Y.578; Kincaid v. Richard-
son, 25 Wun, 237; Perry v. Round Lake Camp Meeting Associa-
tion, 22 Hun, 293.) As now amended, the section gives the right to
appeal in either case (Warner v. Henderson, 25 Hun, 303), and has
rendered the earlier decisions obsolete.

It seems that.no appeal lies to the Supreme Court from an order
of the County Court granting leave to issue an execution upon a
judgment: recovered in a Justice's Court where a transcript thereof
has been filed and judgment thereon docketed in the office of the
County Clerk. Such an order does not come within the cases pro-
vided for by section 1342 of the Code, as it is not made in an action
APPEALS FROM ORDERS MADE IN ACTIONS. 365

 

Orders affecting a substantial right—Discretionary orders.

 

brought in, or taken by appeal to, the County Court. (Kincaid v.
Richardson, 25 Hun, 287.)

Orders affecting a substantial right.—It is only such orders
as affect a substantial right that are appealable under section 1342 of
the Code. The meaning of the term “ substantial right” has been
considered elsewhere. (See ante, p. 215.) Among such orders may
be classed an order granting leave to amend an answer (ew v.
Aland, 62 How. 185); an order of the County Court dismissing an
appeal to that court upon insuflicient grounds (Jatteson v. Hall,
64 How. 515; 15 Week. Dig. 12; Pearson v. Lovejoy, 35 How. 193;
53 Barb. 407; Hammond v. Carpenter, 29 How. 43; Southard v.
Philips, 7 Hun, 18); or refusing to dismiss an appeal thereto for a
failure to give the proper undertaking where an undertaking is
required to perfect the appeal (Auntz v. Licht, 8 Hun, 14. See
Seymour v. Judd, 2 N. Y. 464); an order of the County Judge
adjudging a party guilty of contempt in violating an injunction con-
tained in an order directing him to appear for examination in sup-
plementary proceedings (JVewell v. Cutler, 19 Hun, 74); or for
refusing to answer a question relating to his property or business
propounded to him in such a proceeding (Lorbes v. Willard, 54
Barb. 520); an order made by the County Court granting a motion
to set aside a sale made by an assignee for the benefit of creditors
upon the ground that the price paid was insufficient (Afatier of
Lider, 23 Hun, 91); an order of the County Court granting or refus-
ing a new trial of an action originating in a Justice’s Court and
appealed to and re-tried in the County Court (Hinman v. Stillwell,
34 Hun, 178); and the like. But anorder of the County Court over-
ruling objections filed by a creditor to the jurisdiction of the court
over proceedings instituted by an insolvent debtor to procure his
discharge from imprisonment, does not affect a substantial right so
long as the proceeding is still pending and may be determined
adversely to the petitioner upon the final hearing. (Matter of
McArdle, 30 Hun, 465.)

Discretionary orders.—On an appeal to the General Term of
the Supreme Court from an order made by the Special Term of the
same court, the fact that the order rested in discretion does not affect
the right of review. (Ante, p.306.) But no appeal can be taken to
the Supreme Court from a discretionary order made by an indepen-
366 New Terars anp Appras.

 

Appeals from orders made in special proceedings.

 

dent inferior tribunal. (Stebbins v. Cowles, 30 Hun, 523; Wavel
v. Wiles, 24 N. Y. 637; Tanner v. Marsh, 53 Barb. 438.)

Thus, an order of the County Court granting a new trial on
newly-discovered evidence (Bowen v. Widner, 12 Week. Dig. 525),
or granting a reference of a referable action (Stebbins Vv. Coulee 30
Hun, 528), or granting a new trial under section 3064 of the Code
( Wavel v. Wiles, 24 N . Y. 635; Tanner v. Marsh, 53 Barb. 438),
is not appealable.

SECTION IV.
AppEALs FROM Orpers Mane in Speciat Proceepras.

The Code also provides. that an appeal may be taken to the
Supreme Court from an order affecting a substantial right, made by
a court of record, possessing original jurisdiction, or a judge thereof,
in a special proceeding instituted in that court, or before a judge
thereof, pursuant to a special statutory provision; or instituted
before another judge, and transferred to, or continued before the
judge who made the final order. But this section does not apply to
a case where an appeal from the order to a court other than the
Supreme Court is expressly given by statute (Code of Civil Pro. §
1357), nor does it confer the right to appeal from an order in a case
where it is expressly prescribed by law that the order cannot be
reviewed. (id. § 1361.)

Among the cases falling under section 1357 of the Code are
orders adjudging a party to be in contempt for willfully violating an
injunction order and imposing a punishment therefor (People v.
Dwyer, 90 N. Y. 402); an order of a county judge made upon an
application for the refunding of a tax illegally or improperly assessed
or levied (Harris v. Supervisors of Niagara Co., 33 Wun, 279) ;
an order of the County Court under the Drainage Act (Laws of
1868, chap. 888; Laws of 1871, chap. 303). Auditing and confirm-
ing the accounts of commissioners appointed under the act, so far as
the order presents questions of law (fatter of Ryers, 72 N. Y. 1.
But see Matter of Swan, 33 Hun, 200); and other orders made by
an inferior court of record in special proceedings, if not made final by
some special statute, or not made appealable to a court other than
the Supreme Court.

It has recently been held that an order of the coun‘y judge direct-
Taxing THE APPEAL. 367

 

Time the appeal must be taken.

 

ing a further assessment of damages to be made in proceedings
instituted for the drainage of swamps, as provided in section 1 of
chapter 608 of the Laws of 1881, is final and conclusive, and that no
appeal lies therefrom to the General Term, either on questions of
law or fact. (fatter of Swan, 33 Hun, 200.)

An appeal from an order made in the course of a special pro-
ceeding supplementary to an execution issued out of the County
Court may be taken in like manner as if the order was made in an
action brought in the same court. (Code of Civil Pro. § 2433.) As
has been already noticed, the statutes contain many special provis-
ions regulating the mode in which an appea! from an order made in
a special proceeding shall be taken (see ante, p. 363); but these
provisions in no way enlarge or limit the right to appeal.

An appeal taken under the general provisions of the Code regu-
lating appeals from orders made in special proceedings (Title V.,
chap. XII.), brings up for review any preceding order made in
the course of the proceeding, involving the merits, and necessarily
affecting the final order appealed from, which is specified in the
notice of appeal. (Code of Civ. Pro. § 1858.) An intermediate
order not specified in the notice of appeal will not be before the
court for review. (Id. § 1301.)

ARTICLE II.

TAKING AND PERFECTING THE APPEAL AND STAYING
EXECUTION,

SECTION I.
TIME WITHIN WHICH THE APPEAL MUST BE TAKEN.

An appeal to the Supreme Court from a final judgment rendered
by an inferior court must be taken within sixty days after service
upon the attorney for the appellant of a copy of the judgment and
notice of the entry thereof. (Code of Civil Pro. § 1341.)

An appeal from an interlocutory judgment or from an intermed-
iate ordcr may be taken in connection with and at the time of an
appeal from the final judgment although the time limited for taking
a separate appeal from the final judgment or intermediate order has
expired. (Id. § 1316.)
368 New Triats AnD APPEALS.

 

Serving notice of appeal.

 

An independent appeal from an order made by the court below
or a judge thereof in an action brought therein or taken by appeal
thereto, must be taken within sixty days after service upon the attor-
ney for the appellant of a copy of the order appealed from and
written notice of its entry. (Id. § 1343.)

Anappeal to the Supreme Court from a final order made by an
inferior court, or a judge thereof, in a special proceeding, must be
taken within thirty days after service upon the appellant, or upon
the person appearing for him upon the hearing, of copy of the final
order appealed from, witha written notice of itsentry. (Id. § 1359.)
An appeal from any preceding order made in the course of the
proceeding which involves the merits and necessarily affects the
final order.appealed from may be brought up for review by specify-
ing it in the notice of appeal. (Id. § 1358.)

An appeal from a final order made in a summary proceeding to
recover possession of land must be taken within sixty days after
service upon the attorney for the appellant of a copy of the final
order and notice of its entry. (Id. § 2260.)

It would seem that the same limitation as to time applies to an
appeal from an order made in the course of a proceeding supple
mentary to an execution issued out of a County Court. (Id. § 2433.)

The general rules relating to the limitation of the time to appeal
will be found in a prior chapter. (See ante, p. 58.)

SECTION II.

Move or Taxing anp PERFECTING THE APPEAL.

 

Serving notice of appeal.—The appeal to the Supreme Court
must be taken by serving upon the attorney for the adverse party,
and upon the clerk with whom the judgment or order appealed
from is entered, a written notice to the effect that the appellant
appeals from the judgment or order or from a specified part thereof.
(Code of Civil Pro. § 1800.) If the appeal is from a final judgment
in an action, or from a final order made in a special proceeding, the
appellant should distinctly specify in his notice of appeal any inter-
locutory judgment or intermediate order which he desires and is
entitled to have reviewed. (Id. §§ 1801, 1316, 1317, 1358.) The
form and requisites of the notice are substantially the same upon all

appeals. (See ante, p. 62.)
Strayinc Executiun. 869

 

Security to perfect the appeal.

 

The notice of appeal should be served upon the attorney for the
adverse party in the usual manner of serving papers in an action.
(Code of Civil Pro. § 1300. See ante, p. 66.) Itshould be served
upon the clerk by filing it in his office. (Id.) Fora form of the
notice of appeal, see Appendix.

Security to perfect the appeal.— When the appeal to the
Supreme Court is taken from a final judgment rendered by an inferior
court, security must be given to perfect the appeal. (Code of Civil
Pro. § 1341.) But when the appeal is taken from an order made in
an action, or in aspecial proceeding, security is not required to per-
fect the appeal (Id. §§ 1343, 1360), unless by force of some special
statute providing that an appeal from a specified order or class of
orders must be taken in the same manner as from a judgment. When
this or equivalent language is used, security is necessary to perfect
the appeal. (See Matter of Beckwith, 15 Hun, 326.)

Upon an appeal from a judgment of an inferior court the secur-
ity required to perfect the appeal is the same as upon an appeal to
the Court of Appeals from a judgment of the same amount, or to the
same effect (see ante, p. 68); and the sureties may be excepted to,
and must justify as upon such appeal. (See ante, p. 100. Code of
Civil Pro. § 1341.)

SECTION IIi.
Srayina Exrcurion oF THE JUDGMENT OR OrpER APPEALED FROM.

Upon an appeal from a final judgment of an inferior court to the
Supreme Court, security is necessary to stay the execution of the
judgment (Code of Civil Pro. § 1341), unless the case falls within
the exceptions heretofore pointed out (ante, p. 69), or security is
waived. (Code of Civil Pro. §1305.) The same security is required
to effect a stay upon such an appeal, as upon an appeal to the Court
of Appeals, from a judgment of the same amount or to the same
effect (Id. § 1841), and the sureties may be excepted to, and must
justify, as upon such appeal. (Id.) The character and extent of
the security required to stay the execution of a judgment on appeal
to the Court of Appeals (ante, p. 75), and the practice on excep-
tion to and justification of the appellant’s sureties on such appeal
(ante, pp. 100) 101), have been pointed out.
37 New Triats anD APPEALS.

 

Staying execution.

 

An appeal to the Supreme Court from an order made in an
action by an inferior court, or by a judge thereof, does not stay the
execution of the order. (Code of Civil Pro. § 1343). If the appel-
lant desires a stay pending the appeal, he should apply to the appel-
late court, or to a judge thereof, for an order directing such stay.
The court or judge applied to, may make the order upon such terms,
as to security or otherwise, as justice requires, (Id.) The practice
upon the motion has been pointed ont elsewhere.

An appeal to the Supreme Court from an order made in a spec-
ial proceeding pending in an inferior court, or before a judge
thereof, except where it is otherwise specially prescribed by law,
does not stay the execution of the order appealed from, unless the
court in or from which the appeal is taken, or a judge thereof,
makes an order directing such stay. Such an order may be made,
and may from time to time be modified, upon such terms, as to secur-
ity or otherwise. as justice requires. (Code of Civil Pro. §§ 1351,
1360.) Except as otherwise specially prescribed by law, the provis-
ions of the Code relating to staying the execution of an order made
in an action pending in the Supreme Conrt, or in a Superior City
Court, on appeal to the General Term of the same court, apply to
the stay of the execution of an order made in a special proceeding
on an appeal to the Supreme Court. (Id. § 13860.) The practice on
an application for a stay of execution of an order under these pro-
visions, is stated in another place. (See anie, p. 82.)

It would seem that the codifiers, in framing section 1351 of the
Code, had in mind its application to appeals from inferior courts,
us well as to appeals to the General Term of the court in which
the order appealed from is made, as otherwise the provision that the
stay is to be directed by the court, ‘ in or from” which the appeal
is taken, or by a judge thereof, is unfortunately worded. When the
appeal is to the General Term of the court in which the order
appealed from is made, the application for a stay must be made to
the court “7m which the appeal is taken, or to a judge thereof,” as
a matter of course. But when the appeal to the General Term of
the Supreme Court is from the order of an inferior court, the appli-
cation for a stay must be made to the court “from which the appeal
is taken, or to a judge thereof,” and cannot be made to the appellate
court. This is the only reasonable interpretation of the language
employed, and is in accordance with the construction given by the
Staying Execution. 371

 

Limiting or dispensing with security.

 

Court of Appeals to the same language in section 1312 of the Code.
(See Hills v. Peekskill Savings Bank, 95 N. Y. 675.)

 

Limiting or dispensing with security.—Where security is
required to perfect an appeal, the court has no power to make an
order dispensing with it or limiting its amount. (Agricultural Iron
Works v. City of Brooklyn, 85 N. Y. 652.) Bui the appellate
court may, in its discretion, make an order, upon notice to the
respondent, dispensing with or limiting the security required to stay
the execution of the judgment or order appealed from, as follows:

1. Where the appellant is an executor, administrator, trustee or
other person acting in another’s right, the security may be dispensed
with or limiced in the discretion of the court.

2. The aggregate sum in which one or more undertakings are
required to be given may be limited to not less than fifty thousand
dollars, where it would otherwise exceed that sum. (Code of Civil
Pro. § 1812.)

An application under the first subdivision of the section cited
may be important where the appellant is an executor or adminis-
trator (see Yates v. Burch, 18 Hun, 622); but on account of the
limited jurisdiction of inferior courts a resort to the relief given by
the second subdivision cannot become necessary.

The motion should be made at a Special Term of the Supreme
Court on the usual notice, upon aftidavits setting forth the pen-
dency of the appeal, the representative character of the appellant,
and any fact tending to show an equitable right to the relief
demanded, or which will guide the court in the exercise of its discre-
tionary power. (See anie, p. 93.)
372 New Trias anD APPEALS.

 

Transfer of papers to the Appellate Court.

 

ARTICLE III.

PROCEEDINGS BETWEEN NOTICE OF APPEAL AND ARGUMENT.

SECTION ‘I.

Curtne Derects in Procervincs to Prerrect tHE APPEAL OR TO
Stray ExEcurion.

If the appellant, seasonably and in good faith, has served the
notice of appeal either upon the clerk or upon the adverse party or his
attorney, but has omitted, through mistake, inadvertence, or excus-
able neglect, to serve it upon the other, or to do any other act neces-
sary to perfect the appeal, or to stay the execution of the judgment
or order appealed from, he should set forth the facts in an affidavit,
and upon this affidavit and notice to the adverse party, should
promptly apply to the court in or to which the appeal is taken, for
an order permitting him to amend, or to supply the omission.

The court may grant the order, in its discretion, upon such
terms as justice requires. (Code of Civil Pro. § 13803.) The extent
of the power of the court upon an application of this nature, and the
practice on the application, have been noticed. (See ante, p. 116.)

SECTION II.
TransFEeR oF Papers to tHE APPELLATE Court.

Within twenty days after the appeal is perfected the appellant
must cause the papers upon which it is to be heard to be transmitted
to the appellate court by the clerk upon whom the notice of appeal
was served. If the appellant fails to do this, the respondent may
cause the papers to be transmitted, and may recover the expense
as a disbursement, where he recovers costs. (Code of Civil Pro. §
1815. See ante, p. 135.)

The papers to be transmitted, if the appeal is from a judgment,
will be a certified copy of the notice of appeal, of the judgment-roll,
and of a case or notice of exceptions, if any, filed after the entry of
judgment ; or, if the appeal is from an order or part of an order, a
Casr. 373

 

Points,

 

certified copy of the notice of appeal, of the order, and of the papers
upon which the order was founded. (Code of Civil Pro. § 1315.
Ante, p. 131.) These papers will be filed by the clerk of the appel-
late court,

SECTION III.
Maxine, Servine anp Serriine a Case.

If a case is necessary to properly present the questions involved
in the appellate court for review (see ante, p. 137), it should be
made, served and settled in the manner heretofore pointed out.
(Ante, p. 189-152.)

If the appeal is from an order of the county judge granting a
motion made upon his minutes for a new trial, the case should show
the grounds upon which the motion was made, as the appellate
court will not consider any question not shown by the record to
have beeu presented to the court below. . (Hinman v. Stillwell, 34
Hun, 178.) It is tlie case as settled by the judge which is to deter-
mine what took place at the trial, and what questions were there
determined ; and it is therefore important that every question
sought to be reviewed should be properly presented by the case.
Statements in the case cannot be supplemented or enlarged by
reference to the clerk’s miuutes, though incorporated in the judg-
ment-roll. (Scott v. Morgan, 94 N. Y. 508.) Nor can a question
not presented by the case be raised by affidavit. (Zeese v. Smyth,
95 N. Y. 649.)

SECTION IV. .
Points.

After the settlement of the case, the attorney for each of the
parties to the appeal should prepare points, containing a concise
statement of the facts of the case, with reference to the folios; the
heads of his argument clearly stated ; and the authorities which he
intends to cite in support of his case. The requirements of the
rule of practice are the same in this respect as on appeal to the Gen-
eral Term from a judgment or order of the same court. (See ante,
p- 153.)
374 New Triats AnD APPEALS.

 

Securing a preference on the calendar.

 

SECTION V.
Printing THE Parers UsED ON APPEAL.

The cases and points and all other papers furnished to the court
at General Term in calendar cases must be printed as required by
the general rules of practice. (See Rule 42; ante, p. 155.)

SECTION VI.
Service oF THE Papers on APPEAL- Book.

The practice in respect to the service of printed copies of papers
designed for use on appeal to the Supreme Court from the judg-
ment or order of an interior court is the same as on appeal to the
General Term from a judgment or order of the same court (see
ante, p. 320), and the effect of a failure to make such service is the
same in either case. (Ante, p. 324.)

SECTION VII.
Portine THE CAUSE ON THE CaLENDAR.

For the purpose of causing the appeal to be placed on the calen-
dar of the General Term, a note of issue must be filed eight days
before the commencement of the court at which the cause must be
uvticed. (Rule 39.) In the First Department no enumerated
motion will be placed upon the calendar unless the printed copies ot
the case and papers and points required by the rules to be furnished
for the use of the court by the appellant have been filed with the
clerk of the Generai Term at least eight days before the commence-
ment of the term. (Rule 41.) lor the general practice as to mak-
ing up the calendar, see ante, p. 322. For a form of a note of issue,
see Appendix.

Securing a preference on the calendar.—The casesin which
a cause is entitled to preterence on the calendar, and the proceedings,
to obtain such preference have been pointed out elsewhere. (Ante,

p- 156.)
Notice or ARGUMENT. 3875

 

Striking the cause from the calendar. =

 

Striking the cause from the calendar.—If the party whose
duty it is to furnish the papers required on an enumerated motion,
fails to serve a copy on the opposite party, except upon trial of issues
of law, at least eight days before the time for which the matter may
be noticed for argument, the opposite party will be entitled to move
on affidavit and on four days’ notice of motion, that the cause be
struck from the calendar (whichever party may have noticed it fur
argument), and that judgment be rendered in his favor. (Rule 40.)
And if the appellant fails to deliver to the respondent’s attorney, at
least eight days before the first day of the term, three printed copies
of the cases, papers and points, the respondent is entitled to move,
on affidavit and notice of motion, for the earliest practicable day of
the term for hearing non-enumerated motions, that the cause be
stricken from the calendar (whichever party may have noticed it
for argument), and that judgment be rendered in his favor. (Rule
41.) So, if on an appeal from a non-enumerated motion the appel-
lant fails to deliver to the respondent’s counsel, at least four days
before the commencement of the term, three printed copies of the
papers furnished to the clerk and of his points, the respondent may
move on three days’ notice, on any motion day in the term, to dis-
miss the appeal. (Id. See also ante, p. 324.)

SECTION VIII.
Notice or ARGUMENT.

Either party may bring the cause to a hearing by serving a
notice of argument upon the adverse party for, and eight days prior
to, the first day of the term. (Rule 40.) Non-enumerated motions,
and appeals from orders, made in term time, except appeals from
orders in the Third Department, will be heard on the first day, and
Thursday of the first week, and on Friday of each succeeding week,
immediately after the opening of the court on that day, unless
otherwise ordered. (Rule 43.)

As to the form and requisites of a notice of argument, see ante,
p- 319; and see Appendix.
376 New Triats anp Appgats.

 

Questions reviewabie,

 

ARTICLE IV.

THE HEARING, DECISION, AND JUDGMENT.

SECTION L
Tur HeEarina.

An appeal to the Supreme Court from the judgment or order of
an inferior court is heard at General Term, and the hearing of the
appeal is governed by the provisions of the Code heretofore given,
relating to the hearing of appeals taken in the Supreme Court.
(Code of Civil Pro. §§ 1344, 1860. See ante, p. 328.)

Except as otherwise specially prescribed by law, the proceedings
on an appeal in a special proceeding, taken as prescribed in title 5
of chapter 12 of the Code, is governed by the provisions of that act,
and of the general rules of practice, relating to an appeal in an
action. (Code of Civil Pro. § 1361.)

SECTION II.

Questions REvIEWABLE, AND PRINCIPLES GOVERNING THEIR DETER-
MINATION.

An appeal to the Supreme Court from a final order of an inferior
court made in a special proceeding, brings np for review any pre-
ceding order made in the course of the special proceeding, involviug
the merits, and necessarily affecting the final order appealed from,
which is specified in the notice of appeal. (Code of Civil Pro.
§ 1358.) So an appeal from a final judgment of an inferior court
brings up for review any interlocutory judgment or intermediate
order, specified in the notice of appeal, and necessarily affecting the
final judgment, which has not already been reviewed by the Supreme
Court upon a separate appeal. (Id. § 1316.) In either case, an
interlocutory judgment or intermediate order, not distinctly speci-
fied in the notice of appeal, is not before the Supreme Court for
review. (Id. § 1301; ante, p. 49.)

The proccedings to review a judgment of the County Court,
Qcerstions REviEWABLE. 377

 

Questions reviewable.

 

rendered after a re-trial therein of the issues in an action originally
commenced in a court below, are the same as if the action had
originally been brought in the County Court. (Id. § 3071; Cook v.
Darrow, 22 Hun, 306.) If the appeal is taken from the judgment
alone, after a jury trial, the Supreme Court oceupies the same posi-
tion as to findings of the jury as the Court of Appeals does to the
findings of the jury at Cireuit. (Quinn v. Weed, 5 Hun, 350.) If
it is claimed that the jury erred in their findings of fact, and that
their verdict is contrary to evidence, that question must be pre-
sented for determination to the County Court by way of a motion to
set aside the verdict and for a new trial, before it can be brought
before the Supreme Court for review. (See Hinman v. Stillwell,
34 Hun, 178.) The Supreme Court, on appeal from the judgment
only, cannot reverse because the jury have given excessive damages.
(Thurber v. Townsend, 22 N.Y. 517.) If there is no evidence to
sustain the verdict, and the question is distinctly presented, and an
exception taken, it may be reviewed as a question of law though no
motion for anew trial has been made below. (See Hinman v. Still-
well, 34 Hun, 178.) If a motion for a new trial was made below,
the appellate court will not consider the question whether the ver-
dict is contrary to evidence unless the record shows that the question
was presented to the court below for determination ; nor, on appeal
from an order granting or refusing a new trial, will the appellate
court consider exceptions taken upon the trial unless it appears from
the record that the motion was made upon such exceptions. The
appeal from the order brings to the Supreme Court only the ques-
tions which the court below was asked to determine by the motion
on which the order was granted ; and if the record does not disclose
what questions were presented below on the motion there is nothing
for the General Term to review. (Id.) Before the appellate court
will reverse an order granting a new trial it must be made clearly to.
appear that the court below has committed some error of law. (See
Osborn v. Nelson, 59 Barb. 375.) If the motion for a new trial is
denied and an appeal is taken to the Supreme Court both from the
judgment and order, the verdict will not be set aside merely because
the appellate court would have come to a different conclusion from
that of the jury on the force and weight of the evidence. (Hleming
v. Smith, 44 Barb. 554.) The extreme point to which the appellate
court can go is to set aside the verdict when it is plainly against the
weight of evidence. (Id.)
378 New Triats anp APPEALS.

 

Questions reviewable,

 

If the action was tried in the County Court before a referee, or
before the court without a jury, the judgment entered upon the
report or decision may be reviewed in the Supreme Conrt, although
no motion for a new trial was made in the court below. (Cook v.
Darrow, 22 Hun, 306; Kilmer v. O’ Brien, 13 Hun, 224.)

Where, on appeal from the judgment of a justice of the peace, no
new trial is sought in the County Court, but the appellant desires a
new trial before the same or another justice upon the ground of
alleged errors in fact. and also insists that the judgment is erroneous
for matters appearing upon the return, if the County Court refuses
to hear the case upon both grounds, and renders judgment for the
respondent upon the return alone, the Supreme Court, on appeal from
the judgment, will order a reversal, leaving the appeal pending in
the County Court to be heard and determined upon all the questions
involved. (Cook v. Swift, 18 How. 454; 10 Abb. 212.) So where.
an appeal to the County Court has been taken from a judgment ofa
justice of the peace, in a case where a trial in the appellate court is
a matter of right, if the latter court refuses to pass upon questions
raised before the justice as to his jurisdiction, as to the regularity of
process, its service and return, as to whether the proper parties have
been brought in, and the like, this is an error calling for a reversal
by the Supreme Court on appeal from an order denying a motion
for a new trial made upon a case and exceptions, although the objec-
tions taken before the justice may have been frivolous. (Jfazon v.
Reed, 8 Hun, 618. Sce also Stevens v. Benton, 39 How. 13 ; 2 Lans.
156; Burton v. Wheeler & Wilson Manf. Co., 5 Week. Dig. 384.)

If the County Court has reversed a judgment of a Justiee’s Court
entered upon a verdict based upon conflicting evidence, the Supreme
Court on appeal will reverse the judgment of the County Court.
(Burnham v. Butler, 31 N. Y. 480; Moyes v. Hewitt, 18 Wend.
141; Leogers v. Ackermann, 22 Barb. 134; Bigelow v. Sanders, Id.
147; Smith v. Hill, Id. 656 ; ‘Oakley v. Van Horn, 21 Wend. 305 ;
Hasuon v. Mills, 8 How. 377; Adsit v. Wilson, 7 How. 68; Bon.
nett v. Scutt, 18 Barb. 347.) "And if the County Court affine a
judgment of the Justice Court where the return shows no legal
evidence in its support, the judgment of the County Court must be
reversed. (Lynch v. McBeth, 7 How. 113 ; Kasson v. Mills, 8 How.
377.) Ifthe County Court has affirmed a judgment which was
erroneous by reason of being for more than is claimed in the com-
plaint, the Supreme Court on appeal from the judgment of affirm-
JUDGMENT oR ORDER on APPEAL. 379

Judgment or order on appeal.

 

ance will modify it by conforming it to the pleadings in amount,
affirming it to this extent and reversing it as to the excess. ( Weed v.
Lee, 50 Barb. 354 ; Staats v. Hudson River R. I. Co., 39 Barb.
298 ; Decker v. Hassell, 26 How. 528; Fields v. Mowl, 15 Abb. 6.)

An order of the County Court striking out an answer or part of
an answer on appeal from a Justice’s Court will be reversed on
appeal to the Supreme Court. (Zhompson v. Pine, 5 Hun, 647;
Fuller v. Brierly, 36 How. 47.)

Discretionary orders of the County Court will not be reviewed.
(Ante, p. 365.)

SECTION III.
JUDGMENT oR OrpER on APPEAL AND PROCEEDINGS THEREUNDER.

The proceedings subsequent to the hearing of an appeal to the
Supreme Court from the judgment or order of an inferior court are
governed by the provisions of the Code relating to appeals to the
General Term of the Supreme Court or of a Superior City Court
from a judgment or order of the same court except as hereinafter
noticed. (See Code of Civil Pro. §§ 1344, 1345, 1360.)

A judgment of the Supreme Court rendered upon an appeal from
a judgment of an inferior court must be entered in the judgment
book kept in the office of the clerk of the county wherein the court
below is located. The judgment-roll must be filed in the same
office, and must consist of a certified copy of the judgment annexed
to the papers transmitted from the court below.

An order of the Supreme Court made upon an appeal from an
inferior court must be entered, and the papers upon which the appeal
was heard must be filed, in the office of the clerk of the county
wherein the court below is located.

The filing of the judgment-roll, or the entry of the order as
above prescribed, is a sufficient authority for any proceeding in the
court below, or before the judge who made the order appealed from,
which the judgment of the appellate court directs or permits. But
where the execution of the judgment or order of the appellate court
is stayed by an appeal to the Court of Appeals, the proceedings in
the court below, or before the judge who made the order, are stayed
in like manner. (Code of Civil Pro. § 1345.)

If the judgment of the court below is wholly or partly affirmed,
or is modified, npon the appeal, it must be enforced by the court in
330: New Triats anp APPEALS.

 

Judgment or order on appeal.

 

which it was rendered to the extent permitted by the determination
of the appellate court, as if the appeal therefrom had not been taken.
(Id. § 1319.)

If a final order in a special proceeding is wholly or partly
affirmed, or is modified, upon the appeal, the appellate court may
enforce its order, or may direct the proceedings to be remitted, for
that purpose, to the court below, or to the judge who made the order
appealed from. (Id. § 1320.)

If a final jndgment fora sum of money, or directing the payment
of a sum of money, has been reversed, or has been affirmed as to part
only of the sum, upon the appeal, and an appeal to the Court of
Appeals is not taken and perfected, and the security required to
stay execution is not given, within ten days after the entry of the
judgment upon the appeal in the clerk’s office where the judgment
appealed from is entered, the clerk must make a minute of the rever-
sal of the judgment, or of the amount to which it has been reduced,
upon his docket-book, in each place where the judgment is docketed.
A transcript of the docket, as thus corrected, must be furnished by
him and may be filed in any county clerk’s office, where the original
judgment is docketed, as prescribed by law with respect to the orig-
inal docket, and thereupon the county clerk must correct his docket
accordingly. The lien of a judgment, the docket of which is not
corrected as above prescribed, remains unaffected by the reversal or
modification thereof, until the decision of the Court of Appeals upon
an appeal from the judgment reversing or modifying the same, or
the expiration of the time to take such an appeal. (Id. § 1321.)

The power of the appellate court to make or compel restitution
of property, or of a right lost by means of an erroneous judgment
or order, which is reversed or modified upon appeal, has been con-
sidered. (See ante, p. 191.)
CHAPTER V.

APPEAL TO THE SUPREME COURT FROM A SURRO-
GATE’S COURT,

ARTICLE I.

WHEN AN APPEAL IS AUTHORIZED.

SECTION I.
APPERALABLE DxEcREES AND ORDERS.

Tue Code provides that an appeal to the Supreme Court may be
taken from a decree of a Surrogate’s Court, or from an order affect-
ing a substantial right, made by a Surrogate’s Court, in a special
proceeding pending in that court, or after a decree in such a special
proceeding. (Code of Civil Pro. § 2570.)

The word “decree” is used to designate the final determination
of the rights of the parties to a special proceeding in a Surrogate’s
Court. (Id. § 2550.) The term “final order” is often used for the
same purpose. A decree bears the same relation to the special pro-
ceeding that a tinal judgment does to an action. (See Id. § 1200.)

Decrees or orders upon default.—No appeal can be taken by a
party toa proceeding in the Surrogate’s Court from a decree or
order rendered or made upon his default. (Id. § 2568. See ante,
p- 81.) But this does not apply to persons not parties to the special
proceeding at the time the decree or order was rendered or made, who
have otherwise the right to intervene and appeal. (See Code of
Civil Pro. § 2569.)

Ex parte orders are not appealable. The proper practice is to
move on notice for an order vacating the ev parte order, and if this
is denied, to appeal from the order of denial. (fatter of Johnson,
27 Hun, 533.)
3882 New Triars anp APPEALS.

 

Orders affecting a substantial right.

 

Orders affecting a substantial right.—An order of a Surro-
gate denying the application of one having no direct or contingent
interest in the fund to intervene in proceedings to compel an exec-
utor to pay over a iegacy, is discretionary, and involves no substan-
tial right. (Matter of Halsey, 93 N. Y. 48.) But where the right
of a person, claiming to be a residuary legatee, to call an executor to
account, is contested by the latter on the ground that the petitioner
has no interest in the estate, an order of the Surrogate, granting the
application and compelling the executor to account, involves a sub-
stantial right, and is appealable. (Jester v. Shepard, 26 Hun,
183.)

The meaning of the phrase “ affecting a substantial right” has
been the subject of judicial construction (see ante, p. 215), and
although the decisions cannot be said to be harmonious they seem
to concede that an order which a party cannot demand as a legal
right and which may be granted as a favor, or withheld in the disere-
tion of court to which the application is made, does not affect a sub-
stantial right. (See Medfield’s Surr. Practice [3d. Ed.] 800.)

ARTICLE II.

PARTIES TO THE APPEAL.

SECTION I.
Wuo may APPEAL.

A party aggrieved by a decree or order, not made or rendered
upon his default, may appeal therefrom. (Code of Civil Pro. § 2568;
ante, p. 31.)

A ereditor of, or person interested in the estate or fund affected
by the decree or order, who was not a party to the special proceed-
ing, but was entitled by law to be heard therein upon his application,
or whv has acquired, since the decree or order was made, a right or
interest which would have entitled him to be heard if it had been
previvusly acquired, may intervene and appeal. (Code of Civil Pro.
§ 2569 ; ante, p. 36.)
Parties to tat APPEAL. * 883

 

Respondents.

 

SECTION II.
WHo MUST BE MADE PartIEs.

Each party to the special proceeding in the Surrogate’s Court,
and each person not a party who has, or claims to have, in the sub-
ject-matter of the decree or order, aright or interest which is directly
affected thereby, and which appears upon the face of the papers
presented in the Surrogate’s Court, or has become manifest in the
course of proceedings taken therein, must be made a party to the
appeal. But this does not require a person interested, but nota
party, to be brought in, if he was legally represented, or was duly
cited in the Surrogate’s Court. A person nota party, but who must
be made a party, may be brought in after the appeai is taken, by an
order of the appellate court. (Code of Civil Pro. § 2573; ante,
p- 39.)

SECTION III.
DeEsIGNATION oF THE Parries IN THE TITLE.

The party or person appealing is designated asthe appellant, and
the adverse party as the respondent. After the appeal is taken, the
Supreme Court must be substituted for the Surrogate’s Court in the
title of the special proceeding, and the name of the county, if it is
mentioned, may be omitted; but in other respects the title must not
be changed in consequence of the appeal. (Code of Civil Pro.
§§ 1295, 2575 ; ante, p. 38.)
3884 New Trrats anp AvpEAats.

 

Service of a notice of appeal.

 

ARTICLE III.

MODE OF TAKING AND PERFECTING THE APPEAL,

SECTION I.

Segvice or A Notice or APPEAL.

x

An appeal must be taken by the service, within the State, upon
each party to the special proceeding, other than the appellant, and
upon the surrogate, or the clerk of the Surrogate’s Court, of a writ-
ten notice, referring to the decree or order appealed from, and stat-
ing that the appellant appeals from the same, or from a specified
part thereof. Where a party to the special proceeding in the court
below appeared in person, the notice of appeal must be personally
served upon him; where he appeared by an attorney, it must be
served personally, either upon him or upon his attorney. Where a
party, who was duly cited, did not appear in the Surrogate’s Court,
notice of appeal must be served upon him personally, if he can, with
due diligence, be found within the county; otherwise it may be
served by depositing it, indorsed with a direction to the party, with
the surrogate or the clerk of the Surrogate’s Court. Where a person
to be served cannot, with due diligence, be found, to make personal
service upon him, as prescribed in this section, the surrogate, or a
justice of the Supreme Court, may, by order, prescribe such a mode
of service as he thinks proper; and service in that mode has the
same effect as personal service. (Code Civil Pro. § 2574.)

The notice of appeal should be entitled in the proceeding in the
Surrogate’s Court. The name of the appellate court should not be
‘substituted until the appeal is perfected.

If the appeal is taken by a person not a party to the special pro-
ceeding in which the decree or order appealed from was rendered or
made, the facts which entitle him to appeal must be shown by an
affidavit, which must be filed, and a copy thereof served with the
notice of appeal. (Code of Civil Pro. § 2569.)

If the appeal is froma decree, the appellant should specify in
the notice of appeal each intermediate order, necessarily affecting
Srourrry to Perrror run APPEAL. 885

 

General rules,

 

the decree, not before appealed from, which he desires reviewed by
the appellate court. (See Id. § 2571.)

For the general practice as to the service of a notice of appeal,
see ante, p. 66. Fora form of the notice, see Appendix.

SECTION II.
TIME WITHIN WHICH THE APPEAL MUST BE TAKEN.

“ An appeal by a party must be taken within thirty days after
the service, upon the appellant, or upon the attorney, if any, who
appeared for him in the Surrogate’s Court, of a copy of the decree or
order from which the appeal is taken, and a written notice of the
entry thereof. An appeal by a person who was nota party, taken as
prescribed in this article, must be taken within three months after
the entry of the decree or order, unless the appellant’s title was
acquired by means of an assignment or conveyance from a party ;
in which case, the appeal must be taken within the time limited for
the taking thereof by the assignor or grantor.” (Code of Civil Pro.
§ 2572. See ante, p. 54.)

No court or judge can extend the time fixed by law within which
to take an appeal (Code of Civil Pro. § 784); except that where a
party entitled to appeal dies before the expiration of the time lim-
ited, the court may allow the appeal to be taken by the heir, devisee,
or personal representative of the decedent, at any time within four
months after his death. (Id. § 785.) The section last cited is made
applicable to all courts. (Id. § 3347, subd. 6.)

For the general rules as to the limitation of the time to appeal,
see ante, p. 53,

SECTION IIL.
Sxctriry to Prerrecr tHe APPEAL.

General rule.—To render a notice of appeal effectual for any
purpose, except in a case specified in section 2578 of the Code, or
where it is specially prescribed by law that security is not necessary
to perfect the appeal, the appellant must give a written undertaking,
with at least two sureties, to the effect that the appellant will pay all
costs and damages which may be awarded against him on the appeal
not exceeding two hundred and fifty dollars (Code of Civil Pro. §

25
886 New Triats anp ApPEA.s.

 

When security is not required to perfect the appeal.

 

2577) or, in lieu of such undertaking, must deposit in the office of
the Surrogate the suin of two hundred and fifty dollars. (Id. §§
1806, 2575.)

lf the undertaking is given, it must be to the people of the
State ; must contain the name and residence of each of the sureties
thereto ; must be approved by the surrogate or judge of the appellate
court ; and inust be filed in the surrogate’s office. (Id. § 2581.) The
undertaking must be acknowledged or proved and certified in the
same manner as a deed to be recorded (Id. § 810) ; inust be joint and
several in form; and must be accompanied by the usual affidavit of
justitication. The approval of the surrogate or judge of the appel-
late court must be indorsed upon the undertaking. The appellant
need not join in its execution. (Id. § 812.)

These matters of detail have been more fully noticed elsewhere.
(See ante, p. 71.)

Where the adverse party has died since the making of the order
or the rendering of the decree appealed from, or where the decree
appealed from was rendered after his death, in a case prescribed by
law, the undertaking to perfect an appeal therefrom must recite the
fact of the adverse party’s death. (Code of Civil Pro. §§ 1287,
2575.)

Except as otherwise specially prescribed, the filing of the proper
undertaking, and the service of the notice of appeal, perfect the
appeal. (Code ot Civil Pro. $ 2581.) A deposit of the amount of
the undertaking has the same effect as filing the undertaking ; and
notice that it has been made has the same effect as notice of the filing
and service of a copy of the undertaking. (Id. §§ 1306, 2575.)

When security is not required to perfect the appeal.—_No
security is required to perfect the appeal where the respondent has
executed a written waiver of security (Code of Civil Pro. §§ 1305,
3575); or where the appeal is taken by an executor, administrator,
testamentary trustee, guardian, or other person appointed by the Sur-
rogate’s Court, from a decree directing him to pay or distribute
money, or to deposit money in a bank or trust company, or to deliver
property; or where the appeal is taken by an executor or adminis-
trator from an order granting leave to issue an execution against
him as prescribed in section 1825 of the Code. (Id. §§ 2577, 2578.)

The Code provides that an appeal may be taken from an order
granting or refusing a new trial of controverted questions of fact
Sxcuriry to Prerrecr tne APPEAL. 38%

 

Exception to sureties in the Surrogate’s Court of New York.

 

submitted to a jury in a special proceeding for the disposition of the
real property of a decedent, “as if the order had been made in an
action, and with like effect.” (Id. § 2549.) No security would be
required to perfect an appeal from such an order if made in an
action. (Id. §§ 1348, 1351.) It would therefore seem that an
appeal from an order of the surrogate granting or refusing a new
trial in such case is one “where it is specially prescribed by law
that security is not necessary to perfect the appeal.” (See Id. §
2577.)

Subsequent insolvency of surety.—Where a surety in an
undertaking given to perfect an appeal has subsequently become in-
solvent, or his circumstances have become so precarious as to furnish
reasonable grounds or apprehension that the undertaking is not suf-
ficient for the security of the respondent, the latter may obtain an
order from the appellate court requiring the appellant to file a new
undertaking, and if the order is disregarded may obtain a dismissal
of the appeal. (Code of Civil Pro. $$ 1808, 2575. See ante, p. 110.)

Exception to sureties in the Surrogate’s Court of New
York.—Rule 16 of the Surrogate’s Court of the County of New
York provides as follows: “The respondent, on any appeal from a
decree or order of this court, may, within ten days after the filing of
the undertaking required on such appeal, serve upon the attorney
for the appellant a written notice that he excepts to the sufficiency
of the sureties therein ; whereupon within said ten days thereafter,
such sureties, or other sureties in a new undertaking to the same
effect, must justify before the surrogate or his chief clerk, on five
days’ notice of such justitication, to be served upon the respondent’s
attorney by each surety appearing in person before said surrogate or
chief clerk, and submitting to an examination, on oath, on the part
of the appellant touching his sufficiency. If such sureties shall be
found sufficient, said surrogate or chief clerk will indorse an allow-
ance thereof upon the undertaking or a copy thereof, and a notice of
such allowance shall beserved upon the attorney for the exceptant ;
and the effect of any failure to so justify and procure such allowance
shall be to avoid the undertaking.”
388 New Triats anp APPEALS.

 

Staying decree for payment, &.

 

SECTION IV.

Curing Derrcts iv ProckEDINGS TO TAKE THE APPEAL.

The general provisions of the Code in relation to curing defects
in proceedings to take and perfect an appeal, which have been else-
where noticed (ante, p. 116), apply to appeals from a Surrogate’s
Court. (See Code of Civil Pro. §§ 1303, 2575.)

ARTICLE IV.

STAY OF EXECUTION OF THE DECREE OR ORDER.

SECTION I.

Staying Decree ror Payment, &0., or Money, or DELIveRY oF
Property.

Notice of appeal by an executor, administrator, testamentary trus-
tee, guardian, or other person appointed by the Surrogate’s Court,
from a decree directing him to pay or distribute money, or to deposit
money ina bank or trust company, or to deliver property, does not
stay the execution of the decree appealed from, unless the appellant
gives an undertaking with at least two sureties, in a sum therein
specified, to the effect that if the decree or any part thereof is
aftirmed, or the appeal is dismissed, the appellant will pay all costs
and damages which may be awarded against him upon appeal, and
will pay the sum so directed to be paid, or, as the case requires, will
deposit or distribute the money, or deliver the property so directed
to be deposited, distributed or delivered, or the part thereof as to
which the decree is affirmed. (Code of Civil Pro. § 2578.) If the
appeal is from a deeree directing the payment, deposit, or distribu-
tion of money, the sum specified in the undertaking must be not less
than twice the sum directed to be paid, deposited or distributed. If
the appeal is from a decree directing the delivery of property, the
sum specified in the undertaking must be fixed by the Surrogate or
by a judge of the appellate court, who may require proof by affidavit
Srayina Exxcurion. 389

 

Staying order granting leave to issue execution.

 

of the value of the property, or of such other facts as he deems
proper. (Id. § 2580.) The undertaking must be to the people of
the State (Id. § 2581) ; must be joint and several in form (Id. § 812);
must contain the name and residence of each of the sureties thereto
(Id. § 2581); must be duly acknowledged (Id. § 810); must be accom-
panied by the usual affidavit of justification (Id. § 812); and must be
approved by the surrogate or a judge of the appellate court, and filed
in the surrogate’s office. (Id. § 2581.)

SECTION ILI.
Staying Orper Granting Leave to Issuzr Exxcurion.

Notice of appeal by an executor or administrator from an order
granting leave to issue an execution against him as provided in
section 1825 of the Code does not stay the execution of the order
unless the appellant gives an undertaking to the people of the State,
with at least two sureties, whose names and places of residence are
specified, in a sum not less than twice the sum collectible by the
execution, to be specitied in the undertaking, to the effect that if the
order, or any part thereof, is affirmed, or the appeal is dismissed,
the appellant will pay all costs and damages which may be awarded
against him on the appeal, and will pay the sum directed to be col-
lected, or the part thereof as to which the order is affirmed. (Code
of Civil Pro. §§ 2578, 2580, 2581.) The undertaking so given must
be accompanied by the usual athidavits of justification, and must be
acknowledged, approved by the Surrogate or by a judge of the
appellate court, and filed in the Surrogate’s office. (Id.)

In all cases where the adverse party has since died since the
making of the order or the rendering of the decree appealed from,
or where the decree appealed from was rendered after his death in
a case prescribed by law, the undertaking required to stay the execu-
tion of the judgment or order appealed from must recite the fact of
the adverse party’s death. (Id. §§ 1297, 2575.)
390 New Triats anp APPEALS.

 

‘Staying decree or order directing commitment.

 

SECTION IIL.
Stayina Ducree on onpeR pirEecriIne ComMIrMeEnr.

An appeal from a decree or an order, directing the commitment
of an executor, administrator, testamentary trustee, guardian, or
other person appointed by the Surrogate’s Court, or an attorney or
counsel employed therein, for disobedience to a direction of the
surrogate or for neglect of duty; or directing the commiiment of a
person refusing to obey a subpoena, or to testify, when required
according to law; does not stay the execution of the decree or order
appealed from, unless the appellant gives an undertaking with at
least two sureties in a sum therein specified, to the effect that, if the
decree or order appealed from, or any part thereof, is affirmed, or
the appeal is dismissed, the appellant will, within twenty days after
the affirmance or dismissal, surrender himself in obedience to the
decree or order, to the custody of the sheriff of the county, wherein he
was directed to be committed. If the undertaking is broken it may
be prosecuted in the same manner, and with the same effect, as an
administrator’s official bond ; and the proceeds of the action must be
paid or distributed, as directed by the Surrogate, to or among the
persons aggrieved, to the extent of the pecuniary injuries sustained
by them; and the balance, if any, must be paid into the county
treasury. (Code of Civil Pro. § 2579.)

The undertaking must be to the people of the State; must give
the name and residence of each of the sureties, must be joint and
several in form, must be duly acknowledged, must be accompanied
by the usual affidavit of justification, must be approved by the sur:
rogate or by a judge of the appellate court, and must be filed in the
office of the Surrogate. (Id. §§ 810, 812, 2581.)

The sum specified in the undertaking must be fixed by the sur-
rogate or by a judge of the appellate court, who may require proof
by affidavit of such facts as he deems proper. (Id. § 2580.)
Drcrer ror Propare or Lerrers, Ere. 391

 

Revoking probate or letters, etc.

 

SECTION IV.

Errect or AN APPEAL FROM 4 DecreE rox PRoBarE AND GRANTING
Lrrrers.

An appeal from a decree of surrogate, admitting a will to pro-
bate, or granting letters testamentary, or letters of administration,
does not stay the issuing of letters, where, in the opinion of the sur-
rogate, manifested by an order, the preservation of the estate
requires that the letters should issne. Letters so issued confer upon
the person named therein all the powers and authority, and subject
him to all the duties and liabilities of an executor or administrator
in an ordinary case, except that they do not confer power to sell

-real property by virtue of a provision in the will, or to pay or satisfy
a legacy, or to distribute the unbequeathed property of the decedent,
until after the final determination of the appeal; and in case letters
shall have been issued before such appeal, the executor or admin-
istrator, on alike order of the Surrogate, may exercise the power and
authority, subject to the duties, liabilities and exceptions above
provided. (Qode of Civil Pro. § 2582.)

SECTION V.,

Errecr oF AN APPEAL FROM A Decree Revoxina ProBars or
Letters, &c.

An appeal from a decree revoking the probate of a will,
or revoking letters testamentary, letters of administration, or
letters of guardianship ; or from a decree or an order suspending an
executor, administrator or guardian, or removing or suspending a
testamentary trustee, or a freeholder appointed to execute a decree,
as prescribed in title fifth of chapter eighteenth of the Code, or
appointing a temporary administrator, or an appraiser of personal
property, does not stay the execution of the decree or order appealed
from. (Code of Civil Pro. § 2583.)
392 New Trrats anp APPEALS.

 

When a perfected appeal effects a stay.

 

SECTION VI.
Wuewn a Pexrectep APPEAL EFFECTS A OTAY.

After enumerating certain cases in whicha perfected appeal does
not stay the execution of the decree or order appealed from, the Code
provides that “ Except as otherwise expressly prescribed in this article,
a perfected appeal has the effect, as a stay of proceedings to enforce
the deerce or order appealed from, prescribed in 1310 of this act,
with respect toa perfected appeal froma judgment.” (Code of
Civil Pro. § 2584.) he section referred to is as follows: ‘* Where
an appeal has been perfected, as prescribed in this chapter, aud the
other acts, if any, required to be done to stay the execution of the
judgment or order appealed from have been done, the appeal stays .
all proceedings to enforce the judgment or order appealed from ;
except that the court or judge from whose determination the appeal
is taken, may proceed in any matter, included in the action or
special proceeding, and not affected by the judgment or order
appealed from, or not embraced within the appeal; or may cause
perishable property to be sold, pursnant to the judgment or order
appealed from. The proceeds of such sale must be paid, to abide
the result of the appeal, into the court from or in which the appeal
is taken; or, if it was taken as prescribed in title fifth of this chap-
ter, into the Supreme Court.” (Id. §1310. See ante, p. 104.)

The cases excepted from the operation of section 2584, above
quoted, are those mentioned in the preceding sections of this article,
and the effect of the statute is to make a perfected appeal a stay of
proceedings in execution of the decree or order appealed from in all
other cases, unless it be in the case of an appeal from an order made
on a motion for a new trial of issues submitted to a jury in a special
proceeding for the disposition of the real property of decedent,
under section 2549 of the Code. Such an appeal is embraced in
the general language of section 2584 of the Code, and under that
section the proceedings are stayed by the appeal ; but, by the terms
of section 2549, the effect of the appeal is the same as if taken from
an order in an action, and such appeal would not, per se, operate as
astay. (See Code of Civil Pro. §§ 1343, 1351.)
Incoruasep SECURITY. 3938

 

Increased security.

 

SECTION VII.
Correcting Derscrs 1n Proceypines To Oprain a Stay.

The general provisions of the Code as to curing defects in pro-
ceedings to stay the execution of the judgment or order appealed
from (Code o. Civil Pro. § 1303; ante, p. 116), are made appli-
cable to appeals taken fromm decrees or orders of a Surrogate. (Code
of Civil Pro. § 2575.)

SECTION VIII.
IncrgEasep Securrry on Morton or [Responpent.

When security is given to stay the execution of the decree or
order appeaied from, and the amount or sum specified in the under-
taking has been fixed by the surrogate or by a judgeof the appellate
court, the respondent may apply to the appellate court, upon notice,
for an order requiring the appellant to increase the sum so fixed. If
such order is granted, and the appellant makes default in giving the
new undertaking, the appeal may be dismissed, or the stay dissolved
as the case requires. (Code of Civil Pro. § 2580.) So where one or
more of the sureties in the undertaking given to stay execution of
the decree or order appealed from becomes insolvent after its execu-
tion, or his circumstances become so precarious that there is reason
to apprehend that the undertaking is not sufficient for the security
of the respondent, the appellate court may make an order requiring
the appellant to file a new undertaking, and to serve a copy thereof,
as required with respect to the original undertaking, and if the
appellant fails to do so within twenty days after service of a copy of
the order, or such further time as the court allows, the appeal must
be dismissed, or the order or judgment from which the appeal is
taken, must be executed, as if the original undertaking had not been
given. (Id. §§ 1308, 2575. See ante, p. 110.)
394 New Tatars ann Apprats.

 

Making a case containing exceptions.

 

ARTICLE V.

PROCEEDINGS AFTER APPEAL AND BEFORE ARGUMENT.

SECTION I.
Maxine a Casm contarnina Excrrtions.

Every appeal taken from a decree rendered upon a trial by the
surrogate of an issue of fact must be heard upon a case made and
settled by the surrogate as prescribed by law for making and settling
a case upon an appeal in an action. (Code of Civil Pro. § 2576.
See ante, p. 137.) No case is required on an appeal from a decrce
not made by the surrogate upon the trial of an issue of fact. (See
Matter of Jackson, 32 Hun, 200.)

Upon a trial of an issue of fact before a surrogate he is required
to file in his office his decision in writing, which must state sepa-
rately the facts found and the conclusions of law. (Code of Civil
Pro. § 2545.) This decision is an essential part of the appeal-book.
(Waldo v. Waldo, 32 Hun, 251.) An exception may be taken to a
ruling by the surrogate upon the trial, including a finding or refusal
to find upon a question of fact in a case where such an exception
may be taken to a ruling of the court upon the trial without a jury
of an issue of fact as prescribed in article third of title first of chap-
ter tenth of the Code. The provisions of that article relating to the
manner and effect of taking such an exception, and the settlement
of a case containing the exceptions apply to such a trial before the
surrogate ; for which purpose the decree is regarded as a judgment,
and notice of exception may be filed in the Surrogate’s office.
(Code of Civil Pro. § 2545.) Either party may, upon the settlement
of a case, request a finding upon any question of fact, or a ruling
upon any question of law; and an exception may be taken to such
finding or ruling, or to a refusal to find or rule accordingly. (Id.)
For the general practice relating to the settlement of a case, see
ante, p. 149. It seems that after a case has been made and settled,
and after the time to file exceptions has expired, the General Term
to which an appeal has been taken from the decree of a surrogate
Brineine in on Susstrroring Parriss. 395

 

Bringing in or substituting parties.

 

may permit the appellant to tile execptions, mune pro tune, to the
surrogate’s decision and conclusions of law. (Jfatter of Gardiner,
37 Hun, 639).

SECTION II.
Brineine in on SussrireTina Parris.

Where an appeal has been taken by one who was not a party to
the proceeding in the Surrogate’s Court, but who has the right to
appeal and to be substituted in the place of a party, the person thus
appealing must apply to the appellate court, before the hearing
therein, for an order of substitution. If he unreasonably neglects to
procure the order, his appeal may be dismissed on motion of the
respondent. (Sce Code of Civil Pro. §§ 1296, 1299, 2575 ; ante, p.
85.) So if the appeal was taken after the death of the adverse
party, an order of the appeilate court substituting the heir, devisee,
executor or administrator, as the case requires, must be obtained
before the hearing. (Code of Civil Pro. §§ 1297, 1299, 2575 ; ante,
p- 87.) So where either party to the appeal dies before the hear-
ing, if an order substituting another person in his place is not made
within three months after his death, the court in which the appeal is
pending, may in its discretion, make an order requiring all persons
interested in the decedent’s estate to show cause before it, why the
decree or order appealed from should not be reversed or aftirmed, or
the appeal dismissed, as the case requires. The order must specify
a day when cause is to be shown, which must not be Iess than six
months after making the order, and it must designate the mode of
giving notice to the persons interested. Upon the return day of the
order, or at a subsequent day appointed by the court, if the proper
person has not been substituted, the court, upon proof by atlidavit
that notice has been given as required by the order, may reverse or
affirm the decree or order appealed from, or dismiss the appeal, or
make such further order in the premises as justice requires. (Code
of Civil Pro. §§ 1298, 2575. See ante, p. 41.)

A person not a party to the special proceeding in the Surrogate’s
Court, but who must be made a party to an appeal from a deerce or
order made or rendered therein, may be brought in by an order of
the appellate court after the wppeal is taken; or the appeal may be
396 New Triats anp APPEALS.

 

Filing note of issue and serving notice of argument.

 

dismissed on account of his absence. The appellate court may pre-
scribe the mode of bringing in such a person, by publication, by
personal service, or otherwise. (Cude of Civil Pro. § 2573. See
ante, p. 42.)

SECTION IIL.
Pristina, Servine, AND Finina Papers To BE USED ON THE APPEAL.

An appeal from a final order or decree of a Surrogate’s Court is
an enumerated motion (Rule 388), and is governed by the general
rules of practice relating to furnishing, printing, serving, and filing
the papers used upon the hearing of such motions. (See Rules 40,
41 and 42.) For the general practice, see ante, p. 155.

SECTION IV.
Fiuine Nore or Issuz anp Servinea Noricr or ARGUMENT.

Notes of issue must be filed eight days before the commencement
of the court for which the cause may be noticed. (Rule 39.) For
the form and requisites of a note of issue, see ante, p. 317.

An appeal from the decree or decision of a Surrogate’s Court,
determining a will to be valid and admitting it to probate, or deter-
mining an instrument offered for probate as a will to be invalid or
not entitled to probate as such, or granting general letters of admin-
istration, is among the general classes of causes entitled to prefer-
ence on the calendar. (Code of Civil Pro. § 791, subd. 5. See
ante, p. 157.)

Notice of argument of an appeal from a final order or decree of
asurrogate may be served by either party for the first day of the
term. Eight days’ notice must be given. (Rule 40. See ante,
p- 819.).
ProcrEepines on THE APPEAL. 397

 

Questions reviewable on the appeal.

 

ARTICLE VI.

HEARING AND PROCEEDINGS ON THE APPEAL, AND JUDGMENT
OR ORDER THEREON.

SECTION I.
In GENERAL.

In the Supreme Court, an appeal from a decrce or an order of a
Surrogate’s Court must be heard, the judgment or an order made
thereupon must be entered, and the papers must be filed, in
the same manner, and the effect of the judgment with respect to the
proceedings in the Surrogate’s Court is the same, as where an appeal
is taken to the Supreme Court from a final judgment or an order of
an inferior court, as prescribed in title third of chapter twelfth of
the Code. (Code of Civil Pro. § 2585.) Appeals to the Supreme
Court from inferior courts were considered in the preceding chap-
ter. (See ante, pp. 361-380.)

SECTION II.
Qurstions REVIEWABLE ON THE APPEAL.

An appeal taken from a decree brings up for review each inter-
mediate order, which is specified in the notice of appeal, and neces-
sarily affected the decree, and which has not already been reviewed
by the appellate court, upon a separate appeal taken from the order.
(Code of Civil Pro. § 2571.)

An appeal from a decree or order of a Surrogate’s Court brings
up for review, by each court to which the appeal is carried, each
decision to which an exception is duly taken by the appellant as
prescribed in section 2545 of the Code. (Id. § 2545.)

Upon an appeal from the decree of a surrogate entered upon the
final settlement of an executor’s accounts, the expenses allowed to
the executor for administration and accounting cannot be reviewed
by the General Term, if the items, vouchers and evidence of such
expenses are not returned, but the surrogate certifies that they were
398 New Trrars anp APPEAL.

 

Questions reviewable on the appeal.

 

presented to him in detail, and duly verified, proved, adjusted and
allowed by him as the sum specified. (Hannahe v. Hannahs, 5
Ilun, 644; 68 N. Y. 610.)

The appeal may be taken upon questions of law, upon the facts,
orupon both. (Code of Civil Pro. § 2576.) Whiere it is taken upon
the facts, the Supreme Court has the same power to decide the ques-
tion of fact which the surrogate had, and it may in its discretion
receive further testimony or documentary evidence, and appoint a
referee. (Id. § 2586; Matter of Loss, 87 N. Y. 514; Davis v.
Clark, Id. § 623 ; Marx v. McGlynn, 88 N. Y. 357 ; Matter of Cot-
trell, 95 N. Y. 329.)

A surrogate has power to open, vacate, modify, or set aside, or
to enter as of a former time, a decree or order of his court; or to
grant a new trial or a new hearing for fraud, newly discovered evi-
dence, clerical error, or other sufficient cause. Dut these powers can
be exercised only in a like case and in the same manner as a court of
record and of general jurisdiction exercises the same powers. Upon
an appeal from a determination of the surrogate made upon an appli-
cation requiring the exercise of these powers, the General Term of
the Supreme Court has the same power as the surrogate, and his
determination must be reviewed as if an original application was
made to thatterm. (Code of Civil Pro. § 2481, subd. 6; Matter of
Hancock, 27 Hun, 78.) But the Special Term of the Supreme
Court has no jurisdiction to entertain a motion for a new trial of a
special proceeding in a Surrogate’s Court upon the ground of newly
discovered evidence or otherwise. (Howell v. Howell, 30 Hun,
625.)

In nearly all cases, upon an appeal from an order of. the surro-
gate, the whole case is to be examined by the General Term, as well
upon the facts as upon the law, so far as these questions are pre-
sented by the appeal. (Gilman v. Gilman, 3 Hun, 22; Robinson v.
Raynor, 28 N.Y. 494; Kyle v. Kyle, 67 N.Y. 400 ; Schenck v. Dart,
22 N. Y. 420.)

Objections not taken below, which if then taken might have
been obviated, will not be considered upon appeal from an order
of the surrogate. (fatter of Dolan, 88 N. Y. 309.)
Princrptes Govirsinc tne Decision or APPEAL. 399

 

Error in admitting or rejecting evidence.

 

SECTION III.
PricipLes Governine THE Decision or APPEAL.

The Code provides that a decree or order of a Surrogate’s Court
shall not be reversed for an error in admitting or rejecting evi-
dence unless it appears to the appellate court that the exceptant was
necessarily prejudiced thereby. (Code of Civil Pro. § 2545.) The
statute does not mean that no decree of a surrogate shall be reversed
for errors in admitting or rejecting evidence unless it appears to the
appellate court, in the one case, that the evidence erroneously
admitted furnished the only foundation for the judgment, or, in
the other, that the rejected evidence, if it had been admitted,
would have conclusively entitled the appellant to a decree in
his favor. The section was probably designed to incorporate into
a statute the pre-existing rule administered by the courts that on
appeal the court would disregard errors in the admission or rejection
of evidence, if in the judgment of the appellate court they did not
affect the substantial rights of the parties. Under this section, when
the court of review finds that incompetent evidence has been
received or competent evidence rejected, it then becomes its duty to
determine whether the error prejudiced the party against whom it
was committed. If it appears to the court, that it did not, then
the error is disregarded. If, on the other hand, the evidence
erroneously admitted or rejected was important and material, and
the court cannot say that, notwithstanding the error, tle judgment is
right, or if it entertains a reasonable doubt upon the subject,
then the party is necessarily prejudiced within the meaning of
this section, and the court will reverse. (Matter of Smith, 95
N. Y. 516.) Each case is to be determined upon its own cir-
cumstances; but to justify a reversal, in addition to determining
that incompetent evidence was received and competent evidence
rejected, the court must be satisfied that with the excluded evi-
dence the appellant had not failed in his proof, or that without
the improper evidence the respondent’s case was deficient. (Snyder
v. Sherman, 88 N. Y. 656.) If it appears from the whole case
that the judgment was right, and that the result could not have
been different had the error not been committed, there is no case
400 New Triats anp APPEAL.

 

Judgment or order on the appeal.

 

presented for a reversal. (Brick v. Brick, 66 N.Y. 144; Copeland
v. Van Alst, 9 Weck. Dig. 407; Horn v. Pullman, 72 N. Y. 269.)

Where specific objections to items of credits in an executor’s
account have been filed by both adult and infant contestants, but have
been formally withdrawn by the adult contestants on the hearing
before the auditor, and the infant contestants file no exceptions to
the auditor’s report, and do not join with the adult contestants in an
appeal from the decree of the surrogate based thereon, the adult
contestants will be held bound by their waiver, and the infant
contestants by the decree from which they have not appealed.
(Matter of Weston, 91. N. Y. 502.)

SECTION IV.
JUDGMENT OR ORDER oN THE APPEAL.

The appellate court may reverse, affirm, or modify the decree
or order appealed from, and each intermediate order, specified in the
notice of appeal, which it is authorized by law to review, and as to
any or all of the parties; and it may, if necessary or proper, grant a
new trial or hearing. (Code of Civil Pro. § 2587.) The judgment
or order made upon the decision of the appeal must be entered, and
the papers must be filed, in the same manner, and the effect of the
judgment, with respect to the procecdings in the Surrogate’s Court,
is the same, as where an appeal is taken to the Supreme Court, from
a final judgment or an order of an inferior court, as prescribed in
title third of chapter twelfth of the Code. (Id. § 2555. See ante,
p- 379.) The decree or order appealed from may be enforced, or
restitution may be awarded, as the case requires, as prescribed in
title first of chapter twelfth of the Code with respect to an appeal
from a judgment. (Code of Civil Pro. § 2587. See ante, p. 380.)

Where the reversal or modification of a decree by the appellate
court is founded upon a question of fact, the appellate court must,
if the appeal was taken from a decree made upon a petition to admit
a will to probate, or to revoke the probate of a will, make an order,
directing the trial, by a jury, of the material questions of fact, aris-
ing upon the issues between the parties. Such an order must state,
distinctly and plainly, the questions of fact to be tried; and must
direct the trial to take place, either .in a Circuit Court, specified in
the order; or in the County Court of the county of the surrogate ; or
JUDGMENT OR OrpDER oF THE APPEAL. 401

 

Judgment or order of the appeal.

 

in the city and county of New-York, in the Court of Common
Pleas. After the trial, a new trial may be granted, as prescribed
in section 2548 of the Code. (Code of Civil Pro. § 2588.) The
statute is imperative, and must be followed in all cases falling within
it; and where the reversal of a surrogate’s decree on application for
the probate of a will is based upon a question of fact, the Supreme
Court must award an issue to be tried by a jury, and an order
remitting the proceeding to the surrogate is error. (Sutton v. Ray;
72 N. Y. 482.) But the statute only applies where the reversal or
modification of the decree is upon a question of fact. Thus, where
upon an application for probate, the Surrogate finds all the facts in
favor of the proponent except upon the question of undue influence,
and there is no evidence to establish this, the Supreme Court, upon
reversing the decree of the surrogate refusing probate, may remit
the proceedings to the surrogate with directions to admit the will
to probate. The reversal in such case is to be regarded as upon a
question of law, and there are no questions of fact to be tried by a
jury. (Matter of Martin, 98 N. Y.193.) The burden of proving
undue influence is upon the party alleging it (Id.); but the burden
of establishing that the deceased made the will in question is upon
the proponents; and if the testimony upon this point is of such a
doubtful and uncertain character that the mind of the appellate
court is not brought to the belief of the actual execution of the will
by the decedent, and yet is not convinced to the contrary, a decree
admitting the will to probate should be reversed, and a trial by jury
ordered. (Howland v. Taylor, 53 N. Y. 627. See Patchen v.
Devin, 37 Barb. 430.) | When the probate of a will was contested
both on the ground of want of due execution and of undue influence,
and the surrogate refused probate on the former ground, without
passing upon the question of undue influence and the evidence given
in its support, the General Term, on a reversal of the decree refus-
ing probate, should remit the case to the surrogate to be heard upon
the question of undue influence. (Dack v. Dack, 84 N. Y. 663.)

If, on an appeal from a decree of a surrogate settling the
accounts of executors, the account is not re-opened, but is sent back
to be re-adjustéd as to certain items, the decree is conclusive as to
all the questions passed upon and not referred back for re-examina-
tion or correction, and they cannot be litigated upon the second
hearing. | (Adair v. Brimmer, 95 N. Y. 35.)
-CHAPTER VI.

APPEAL TO THE COURT OF COMMON PLEAS FROM
THE CITY COURT OF NEW YORK.

ARTICLE I.

JURISDICTION OF THE APPELLATE COURT.

SECTION I.
GenerRAL Statutory Provisions.

An appeal from a jndgment rendered or an order made in the
City Court of New York lies in the first instance to the General
Term of that court, and is governed in every respect, except the
time within which it must be taken, by the provisions of the Code
governing appeals to the General Term of the Supreme Court or of
a Superior City Court from judgments rendered or orders made in
the same court or by a judge thereof. (See Code of Civil Pro. §§
3188-3190.) Appeals so taken have been considered in another
chapter. (See ante, p. 301.) From the judgment rendered or the
order made by the General Term of the City Court upon such appeal,
a further appeal may be taken to the Court of Common Pleas for the
City and County of New York in the cases prescribed by law. The
Code provides as follows: ‘‘An appeal may be taken to the Court of
Common Pleas for the city and county of New York, from an actual
determination made by the Marine Court of the City of New York,
at a General Term thereof, in either of the following cases :

1. Where a final judgment has been rendered upon an appeal
taken to the General Term.

2. Where an order has been made granting a new trial. But an
appeal cannot be taken from an order granting a new trial, upon a
case or exceptions, unless the notice of appeal contains an assent on
JURISDICTION. 403

 

On appeal from a judgment.

 

the part of the appellant that, if the order is affirmed, judgment
absolute may be rendered against the appellant.

2. Where an order has been made which grants, refuses, con-
tinnes or modifies a provisional remedy ; or, where it involves some
part of the merits, or, where it affects a substantial right, or, where,
in effect, it determines the action and prevents a judgment from
which an appeal might be taken.” (Code of Civil Pro. § 3191.)

The court is still styled the Marine Court in the Code, although
its name was changed to the City Court of New York in 1883.
(Laws of 1883, ch. 26.)

The appellate power of the General Term of the Common Pleas
is derived wholly from the statute, and has no existence outside of
its permission. (Welmore v. Flack, 96 N. Y. 512.)

SECTION II.
On AppEAL FROM A JUDGMENT.

The statute authorizes an appeal from “actual determinations ”
only ; and .this precludes a review of a judgment of affirmance ren-
dered upon default at the General Term. (McMahon v. Rauhr, 47
N. Y. 67.) So where the General Term of the City Court has
reversed the judgment rendered by the trial court without awarding
a new trial or in any way determining the rights of the parties to the
action, no appeal lies to the Common Pleas from the judgment of
reversal. Such a judgment is not an actual or final determination
of the rights of the parties to the action. (Hone v. Joslien, 17
How. 338; 9 Abb. 193; 2 Hilt. 453.) And where the General
Term of the City Court has reversed a judgment and ordered a new
trial, no appeal lies directly from the judgment of reversal, but the
review of the judgment must be had, if at all, upon an appeal from
an order granting a new trial. (Code of Civil Pro. §§ 1318, 3192.)
In no case has the Common Pleas jurisdiction to review a judgment
which is not final (Id. § 3191), or in other words, which is not the
final determination of the rights of the parties in the action. (Id.
§ 1200.)
404 New Trias anp APPEALS.

 

On appeal from orders generally.

 

SECTION III.
Orprrs Granting 4 New TRIAu.

An appeal can be taken to the Common Pleas from an actual
determination of the City Court granting a new trial. But an appeal
cannot be taken from an order granting a new trial upon a case or
exceptions unless the notice of appeal contains an assent on the part
of the appellant that if the order is affirmed judgment absolute may
be rendered against him. (Code of Civil Pro. § 3191, subd. 2.)

As the appeal is allowed only upon condition that the appellant
consents to a final judgment against him if the order is aflirmed,
the Common Pleas has no jurisdiction to entertain or determine an
appeal from the order if such consent is not given. ( Wzlmore v.
Flack, 96 N. Y. 512; Gordon v. Hartman, 79 N. Y. 221.)

A determination of the General Term of the City Court revers-
ing an order of the Special Term granting a new trial and directing
judgment for the defendant, is in effect a final determination, and a
judgment of the General Term, and an appeal to the Common Pleas
may be taken from the order. (Merceron v. Fowler, 8 Daly, 536.)
But no appeal will lie to the Common Pleas from an order made by
the General Term of the City Court on a motion for a new trial on
the ground of newly-discovered evidence (Lesser v. Wunder, 9 Daly,
70), nor will the Common Pleas review an order granting or refus-
ing a new trial on a question of fact. (Marley v. Lyddy, 8 Daly,
514; Tinsdale v. Murray, 9 Daly, 446. See MfcHteere v. Little, 7
Abb. N. C. 374; Burling v. Gunther, 63 How. 68.)

SECTION IV.

On Apprat From Orpers GENERALLY.

Prior to the amendment of section 3191 of the Code of Civil Pro-
cedure in 1882, the Court of Common Pleas had no jurisdiction to
entertain an appeal from an order of the Marine Court (now the
City Court), except in the case of an order granting a new trial. (See
Bamberg v. Stern, 76 N. Y. 555.) By that amendment a new sub-
division was added to the section, giving a right toappeal “ where
JURIspIcTION oN APPEAL FROM ORDERS. 405

 

On appeal from orders generally.

 

an order has been made which grants, refuses, continues, or modifies
a provisional remedy, or where it involves some part of the merits,
or where it affects a substantial right, or where in effect it determines
the action and prevents a judgment from which an appeal might be
taken.”

The amendment renders obsolete a considerable number of
reported cases determining the jurisdiction of the Common Pleas on
appeals from orders of the City Court.

The Court of Common Pleas occupies the same position with
respect to the City Court that the Court of Appeals holds with
respect to the Supreme Court and the Superior City Courts; and
the rules that govern the Court of Appeals in passing upon appeals
from the Supreme and Superior City Courts, are applicable to the
Court of Common Pleas. (McHteere v. Litile, 8 Daly, 167; 7 Abb.
N. ©. 374; Walsh v. Schulz, 67 How. 186.) The same reason that
prevents the Court of Appeals from reviewing matters resting in the
discretion of other courts, applies with full force to appeals brought
into the Common Pleas from discretionary orders of the City Courts,
and if an appeal is taken in such case it will be dismissed. This rule
is unaffected by the amendment above mentioned. (Id.) This rule
prohibits the Common Pleas from reviewing an order of the General
Term of the City Court affirming an order opening a judgment
entered by default and allowing the defendant to answer. (Id.)

An appeal may be taken to the Common Pleas from an order of
interpleader which puts another person in the defendant’s place and
relieves him from liability. (Lynch v. St. John, 8 Daly, 142.) So
an appeal will lie from an order striking the action and all the
pleadings from the record. (See Marrington v. O’ Connor, 6 Daly,
209.)

An appeal will lie to the Common Pleas from a final order of the
General Term of the City Court in summary proceedings to recover
the possession of lands. (Shaw v. McCarty, 63 How. 286; Code of
Civil Pro. § 2260.) Such an appeal was not authorized under the
former practice. (McIntyre v. Hernandez, 7 Abb. N.S. 214.)

The class of orders which are held to involve the merits, or to
affect a substantial right, or to determine the action and prevent a
judgment from which an appeal might be taken, have been pointed
out in the chapter relating to appeals to the Court of Appeals. (Sce
ante, pp. 215-220.)
406 New Trrats anp Apprats.

 

Taking and perfecting the appeal.

 

ARTICLE II.

TAKING AND PERFECTING THE APPEAL AND STAYING
EXECUTION.

SECTION IL.

Tagine AND PERFECTING THE APPEAL.

An appeal to the Common Pleas from the City Court of New
York must be taken within twenty days after service of a copy of
the judgment or order appealed from and written notice of entry
thereof. The appeal must be heard at a General Term of the appel-
late court. (Code of Civil Pro. § 3193.) The general provisions of
the Code as to the mode of taking and perfecting an appeal apply to
appeals to the Common Pleas from the City Court. (Id. § 3192.)

The appeal is taken by serving upon the attorney for the adverse
party, and upon the clerk of the City Court, a written notice that the
appellant appeals from the judgment or order or from a specified
part thereof. (Id. § 1300.) 1f the appeal is from a final judgment
or from a final order in a special proceeding, and the appellant
intends to bring up for review thereupon an interlocutory judgment
or an intermediate order, he must in the notice of appeal distinctly
specify the interlocutory judgment or intermediate order to be
reviewed. (Id. § 1801.) The notice of appeal must be served
upon the adverse attorney and upon the clerk of the court below
in the manner hereinbefore pointed out. (See ante, p. 66.)

If the appeal is from a final judgment, the same security ust be
given to perfect it that would be necessary to perfect an appeal to
the Court of Appeals from a judgment of the same amount or to the
same effect; and the sureties may be excepted to, and must justify,
as upon an appeal so taken. (Code of Civil Pro. $§ 1341, 3192.
See ante, p. 100.) If the appeal is from an order no security is
required to perfect it. (Code of Civil Pro. §§ 1343, 3192.) Where
security is required, a deposit may be made in lieu of giving the
statutory undertaking (Id. § 1306) ; or the giving of security in any
form may be waived by the respondent as in other cases. (Id.
§ 1305.)
Staying oF JUDGMENT OR ORDER. 407

 

Staying of judgment or order.

 

The Court of Common Pleas may, in its discretion, permit the
appellant to supply defects in his proceedings to take and perfect his
appeal. (Id. § 1303.) The cases in which this discretionary power
may be exercised have been noticed elsewhere. (See ante, p. 116.)

SECTION II.
Staying THE Execution of THE JUDGMENT OR ORDER.

The practice relating to staying the execution of a judgment or
order, from which an appeal has been taken to the Common Pleas,
is the same as on an appeal to the Supreme Court from the jndg-
ment or order of an inferior court. (Code of Civil Pro. § 3192.
See ante, p. 369.)

If the appeal is from a final judgment, the execution of the judg-
ment during the pendency of the appeal may be stayed, by giving
the same security that would be required to stay the execution of a
judgment of the same amount, or to the same effect, upon an appeal
to the Court of Appeals, and the sureties may be excepted to, and
must justify, as upon such an appeal. (Code of Civil Pro. § 1341.
See ante, p. 100.)

The execution of an order is not stayed by merely taking an
appeal therefrom. But the appellate court, or a judge thereof, may
direct such a stay, upon such terms, as to seenrity or otherwise, as
justice requires. (Code of Civil Pro. § 1343.) If the appellant
desires to stay the execution of the order, he should apply to a
judge of the Court of Common Pleas, or at a Special Term of that
court, for an order directing a stay. The practice upon such appli-
cations has been given elsewhere. (See ante, p. 82.)

Defects in the proceedings to stay execution may be supplied by
order of the appellate court. (Code of Civil Pro. § 13803; Katz v.
Kuhn, 9 Daly, 172. See ante, p. 116.)

Where the appeal has been perfected, and the other acts neces-
sary to stay execution have been done, the appeal stays all proceed-
ings to enforce the judgment or order appealed from, except that the
court or judge from whose determination the appeal is taken, may
proceed in any matter included in the action or special proceeding,
and not affected by the judgment or order appealed from, or not
embraced within the appeal, or may cause perishable property to be
408 New Triats anp APPEALs.

 

Procuring the return from the court below.

 

sold pursuant to the judgment or order appealed from. (Code of
Civil Pro. § 1810.)

If the appeal is from a judgment, and personal property has been
levied upon before a stay of execntion has been obtained, the appel-
lant may give security equal to that necessary to perfect an appeal
to the Court of Appeals and to stay the execution of the judgment,
and then apply to the City Court at Special Term, upon notice to
the respondent, and to the sureties in the undertaking, for an order
discharging the levy. The court may grant the order in its discre-
tion upon such terms as justice requires. But this does not apply
to a levy made under a warrant of attachment. (Id. § 1811.)

When a defective undertaking has been given on an appeal from
a judgment, and the Common Pleas orders the appeal dismissed,
unless a new undertaking is tiled within a specified time, the grant-
ing of time to remedy defects in the proceeding necessarily operates
as a stay, and it is improper to issue an execution on the judgment.
(Katz v. Kuhn, 9 Daly, 172.)

ARTIOLE III.

PROCEEDINGS BETWEEN NOTICE OF APPEAL AND ARGUMENT.

SN

SECTION I.
Proourtne tHe Rerurn From THE Court Betow.

Where the appeal to the Common Pleas is from a final judg-
ment rendered upon an appeal taken to the General Term of the
City Cow, the appellant, within twenty days after it is perfected,
must cause a certified copy of the notice of appeal, of the judgment-
roll, and of a case or notice of exceptions, if any, filed after the
entry of judgment, to be transmitted to the appellate court by the
clerk upon whom the notice of appeal was served. (Code of Civil
Pro. 1815.) Copies of the opinions filed by the judges who decided
the appeal below must in all cases be annexed to and form part of
the return to the Common Pleas. (Rule 4, City Ct.) If the appeal
is from an order or part of an order, the appellant, within the same
time, must cause a certified copy of the notice of appeal, of the
order, and of the papers on which the order was founded, to be
Srervine Norick vr ARGUMENT. 409

 

Serving notice of argument.

 

transmitted to the appellate court by the same clerk. If the appel-
lant fails to do this, the respondent may canse the papers to be
transmitted, and may tax the expense as a disbursement if he
recover costs. The clerk of the appellate court must file the papers
so transmitted, and the appeal must be heard upon them. (Code
of Civil Pro. § 1315.)

If the appellant fails to procure the return within the time pre-
scribed, the respondent may serve a notice in writing requiring the
appellant to procure the return within ten days thereafter, and that
in default thereof the respondent will apply to the Special Term for
an order dismissing the appeal. Upon proof of the service of such
notice, and of a non-compliance therewith, the order dismissing the
appeal will be granted, unless the court grants further time for fil-
ing the return. (Rule 6, Com. PI.) A certified copy of this order
must be served on the clerk of the General Term. (Rule 11, Com.
Pl.) The making of the return by the court below may be com-
pelled by attachment. (Rule 7, Com. Pl.) The cause will not be
put on the calendar of the General Term until the return is filed,
nor unless it was filed at least eight days before the first day of the
term.

SECTION II.
Serving Notice or ARauMent anp Fiting Nore or Issun.

Either party desiring to bring the canse on for argument should
serve the usual notice of argument at least eight days before the
commencement of the term. General Terms of the Common Pleas
are held in the months of January, March, May and November,
commencing on the first Monday of each month. The notice should
be for the first day of the term.

Ail appeals must be placed upon the General Term calendar, and
numbered. <A note of issue of cases for the General Term calendar
must be filed with the clerk for each term at least eight days before
the first day of the term, and where the returns have been filed, the
cases will be put upon the calendar in the order in which the returns
have been filed. (Rule 2,Com. Pl.) Appeals from the City Court
will be classed separately on the General Term calendar. (Rule 12,
Com. Pl.)

The note of issue must contain the title in full, the nature of the
appeal, the date of the issue, with the attorney’s names, and must in
410 New Triats anp ApprAts.

 

The argument.

addition state the name of the judge by whom the order was made

or judgment rendered at Special Term, the date of the same, and the
nature thereof,

SECTION III.

Printing anp Serving tae Pavers on wich THE APPEAL Is TO
BE HEARD.

Where the appeal is taken from an order, the appellant must
serve upon the respondent, at least eight days before the first day of
the term, a complete copy, written or printed, of the papers upon
which the appeal is to be heard. (Rule 4, Com. Pl.)

The papers and points used upon the appeal must be printed as
required by the general rules of practice; and what has heretofore
been stated as to the mode of preparing, printing and serving papers
to be used on appeal at a General Term of the Supreme or of a
Superior City Court, applies to papers used on appeal to the General
Term of the Common Pleas from a judgment or order of the City
Court. (See ante, p. 316.)

ARTICLE IV.

THE ARGUMENT, DECISION AND JUDGMENT ON APPEAL.

SECTION I.
Tue ARGUMENT.

Appeals from judgments and orders of the General Term of the
City Court of New York are heard at the General Term of the Conrt
of Common Pleas. (Code of Civil Pro. § 3193.) On the first Mon-
day of the term the calendar is called through, and appeals from the
Special Term of the same court may then beset down for argument.
But appeals from the City Court cannot be set down for any partic-
ular day, and must be ready for argument when reached in their
order. (Rule 3, Com. Pl.) This rule will be strictly enforced, and
engagement of counsel in another court or elsewhere will not be
heard asa ground for postponement of the hearing. (Zryon v. Jen-
nings, 22 How. 421; 12 Abb. 33.)
Questions Revieweb. 411

 

Questions reviewed.

 

The order of the calendar is as follows:

1. Motions and appeals from orders.

2. Appeals from judgments of the Common Pleas and referees
in that court.

3. Appeals from the City Court.

4. Appeals from the District Courts.

The calendar is published in full in the Daily Register on the
first day of the term, and the day calendar is published therein on
each subsequent day. Causes not appearing in the day calendar as
so published will not be called or placed thereon.

Any motion to correct the calendar or to strike the cause from
the calendar should be made on the first day of theterm. (Rule 4,
Com. Pl.) When the cause is reached on the calendar and is called,
the counsel proceed to argument. At the commencement of the
argument the appellant must furnish five printed copies of the papers
to the clerk of the court, and the respective parties must each deliver
to the clerk five printed copies of the points, in compliatice with
Rule 41 of the general rules of practice, and the parties must also
deliver to the clerk five copies of the printed papers and points in
compliance with Special Rule 5 of the Common Pleas.

Not more than one counsel wiil be heard on each side, and then
not more than one hour each, except where the court shall other-
wise order. On appeals from orders, not more than one counsel on
each side will be heard, and not more than half an hour each, unless
the court shall otherwise order. (Gen. Rule 46.)

If the appellant fails to appear when the cause is called on the
calendar, the respondent is entitled to an affirmance of the judgment
or order appealed from. (See Tryon v. Jennings, 22 How. 421;
12 Abb. 33.) If no one appears for the respondent, the appellant
should proceed with his argument as in other cases.

SECTION II.
Questions REVIEWED AnD PrincreLes Governing THE Decision.

The rules that govern the Court of Appeals in passing upon
appeals from the Supreme and Superior City Courts apply to the
Court of Common Pleas and govern the latter in passing upon
appeals from the General Term of the City Court. (Walsh v.
Schulz, 67 How. 186; McEteere v. Little, 8 Daly, 167; Bowe v.
419 New Triats anp APPEALS.

 

The judgment and its enforcement.

 

Comley, 16 Week. Dig. 343.) This precludes the Common Pleas
from reviewing questions resting in the discretion of the court
below, such an order opening a judgment by default (Walsh v.
Schultz, 67 How. 186); or denying a motion to postpone the trial of
the cause in City Court (Brown v. Moran, 65 How. 349) ; or deny-
ing a motion fora new trial on newly-discovered evidence (Lesser
v. Wunder, 9 Daly, 70); and the like. (See also Mitchell v. Menkle,
1 Hilt. 142.) If an appeal is taken from a mere diseretionary order,
it will be dismissed.

Save in a few cases specially provided for, the court of Common
Pleas in reviewing the determination of the General Term of the
City Court, occupies the position of an appellate tribunal, charged
with thesole duty of reviewing questions of law. (Walsh v. Schultz,
67 How. 186.) It can deal only with questions of law raised by
exceptions, and not with errors of a jury. (/owe v. Comley, 2 Civ.
Pro. R. 424.) If the appeal is from an order granting a new trial,
the appellate court cannot examine the testimony taken upon the
trial further than to see if there was any competent evidence to sus-
tain the judgment. (Farley v. Lyddy, 8 Daly, 514; McLteere v.
Little, 7 Abb. N. C. 374; 8 Daly, 167.) If the City Court has
decided that a verdict was not against the weight of evidence, this
decision cannot be reviewed by the Common Pleas. (Bell v. Bar-
tholomew, 11 Reporter, 510; 12 Week. Dig. 33.)

Upon an appeal from an order granting a new trial on a case or
exceptions, if the appellate court determines that no error was com-
mitted in granting the new trial, it must render judgment absolute
upon the right of the appellant; and therenpon an assessment of
damages, or any other proceeding requisite to render the judgment
effectual, may be had in the City Court.

SECTION III.
Tue JUDGMENT AND ITS ENFORCEMENT.

The General Term of the Common Pleas may reverse or affirm
wholly or partly, or may modify the judgment or order appealed
from, and each interlocutory judgment or intermediate order which
it is authorized to review, as specified in the notice of appeal, and as
to any or all of the parties, and it may, if necessary or proper, grant
a new trial or hearing. A judgment affirming wholly or partly a
Tue JupGMEeNT AND Irs ENFORCEMENT. 413

 

The judgment and its enforcement.

judgment from which an appeal has been taken, must not expressly ©
and in terms award to the respondent a sum of money, or other relief,
which was awarded to him by the judgment so affirmed. (Code of
Civil Pro. § 1317.)

The judgment or order of the appellate court must be remitted
tu the court below to be enforced according to law. (Id. § 3194.)
CHAPTER VII.

APPEAL TO THE COUNTY COURT.

ARTICLE If.

APPELLATE JURISDICTION.

SECTION I.
JUDGMENTS RENDERED BY A JUSTICE OF THE PEAcE.

Tux only mode of reviewing a judgment rendered by a justice
of the peace in a civil action, is by an appeal to the County Court
of the county where the judgment was rendered. (Code of Civil
Pro. §§ 3044, 3045, 3213.) A justice’s judgment cannot be set aside
by the County Court on motion (Douglass v. Reilly, 6 Week. Dig.
148), nor can it be perpetually stayed by an order of the County
Court. (Collier v. Van Hoesen, 6 Week. Dig. 49.) The remedy,
if any, of the party aggrieved is by appeal.

A judgment void for want of jurisdiction may be reviewed
upon appeal (Striker v. Mott, 6 Wend. 465; Fitch v. Devlin, 15
Barb. 47; Starr v. Trustees of Rochester, 6 Wend. 564); and the
County Court may review a judgment rendered by a justice against
a defendant, who has made default at the trial. (Code of Civil
Pro. $§ 3046, 3064, 3068.)

The Code provides that where a judgment is rendered by a justice
of the peace of the city of Buffalo, the appeal must be to the
Superior Court of that city (Id. § 3045), and mnst be heard at a
General Term thereof. (Id. § 3062.) This exception to the
general provision of the Statute is more apparent than real, as
Justice’s Courts in that city have practically ceased to exist, and their
place has been supplied by a new court of local civil jurisdiction
known as the Municipal Court of Buffalo. (See Laws of 1880,
chap. 344.)
JURISDICTION. 415

 

City Court of Auburn—City Court of Albany.

 

SECTION II.
JUDGMENTS AND OrpERs of cERTAIN Crry Courts.

In many cases the statutes creating courts of local jurisdiction in
cities provide that an appeal from the judgments of such courts shall
be taken to the county court of the county, in which the city is
situated, and that the provisions of law relating to appeals from
judgments rendered by a justice of the peace shall be applicable to
the appeal so taken.

 

City Court of Auburn.—The statute creating the “ City Court
of the City of Auburn” provides that “in civil actions, appeals
from any judgment rendered by the city judge, recorder or justice
of the peace may be taken to the county court of the county of
Cayuga, within the time, and in the same manner provided by law
for appeals from judgments rendered by justices of the peace in
towns, and all provisions of law relating to appeals from such judg-
ments shall apply thereto.” (Laws of 1879, chap. 53, § 66.)

The Municipal Court of the City of Rochester.—The
ainended charter of the city of Rochester continues and establishes a
local court known as the “ Municipal Court of the City of Rochester,”
and provides that “ Appeal may be had from any judgment obtained
in said court to the County Court of Monroe county, in the same
cases, in the same manner, and with like effect, as appeals are now
had by Jaw from judgments obtained in Justices’ Courts.” (Laws of
1880, chap. 14, §246.) The present Code was in force when this
act was passed. (See Code of Civil Pro. § 3355.)

 

City Court of Albany.—The Code provides that an appeal from
the judgment rendered in the Justice’s Court of the City of Albany,
or the Justice’s Court of the City of Troy, may be taken in a case
where an appeal may be taken to a County Court from a judgment
rendered by a justice of the peace, as prescribed by title eight of
chapter nineteenth of that act, and in no other case ; and that such
an appeal must be taken to the County Court of the county wherein
the court is located. (Code of Civil Pro. §3213.) The title referred
416 New Triats anp APpma.s.

 

City Court of Yonkers.

 

to in this section, embraces every form of appeal from a judgment
rendered by a justice of the peace. In 1884, the name of the Jus-
tice’s Court of the City of Albany was changed to the City Court of
Albany (Laws of 1884, chap. 122, § 1), but the provision of the
Code, above cited, was continued in force. (Id. § 7.)

City Court of Yonkers.—The act in relation to the City Court
of Yonkers provides in substance that an appeal from a judgment
rendered in that court in an action where a recovery of less than one
hundred dollars was demanded in the complaint, shall be taken to
the County Court of Westchester county ; and that an appeal from
an order made in such action in that court, or by the city judge of
Yonkers, including an order made upon a summary application after
judgment in such action, must be taken to the County Court of
Westchester county, and may be so taken in such actions :

1. Where the order grants, refuses, continues, or modifies a pro-
visional remedy.

2. Where it grants, or refuses a new trial; except that where
specific questions of fact, arising upon the issues, in an action triable
by the court, have been tried by a jury, pursuant to an order for
that purpose, as prescribed in section 971 of the Code, an appeal
cannot be taken from an order, granting or refusing a new trial,
upon the merits.

38. Where it involves some part of the merits.

4. Where it affects a substantial right.

5. Where, in effect, it determines the action, and prevents a
judgment, from which an appeal might be taken.

6. Where it determines a statutory provision of the State to be
unconstitutional; and the determination appears from the reasons
given for the decision thereupon, or is necessarily implied in the
decision. (See Laws of 1878, chap. 186, §56; Laws of 1881, chap.
437, $12.)

It will be seen that by the terms of the statute above cited, the
jurisdiction of the County Court of Westchester county over an
appeal from a judgment rendered or an order made in an action
pending in the City Court of Yonkers, is ade to depend primarily
upon the demand in the complaint of a recovery of less than one
hundred dollars; and secondly, in case of an appeal from an order
made in such action, upon the further question whether the order
falls within one of the classes above enumerated. If a recovery
OrpERs MADE In SproraL PRockEDINGSs. A417

 

City Court of Utica—Proceedings against animals straying.

 

of one hundred dollars or more was demanded in the action, an
appeal froma judgment or order therein must be taken to the
Supreme Court. Appeals from final orders made by the city judge
in summary proceedings must be taken to the County Court of
Westchester county. (Id.): :

City Court of Utica.—The act creating the City Court of Utica
provides, that the proceedings, practice and pleadings, including
appeals, shall be governed in all civil matters by the provisions of
the Code of Civil Procedure relating to Justices’ Courts. (Laws-of
1882, chap. 103, § 6.) This gives the County Court of Oneida
county, jurisdiction of appeals from judgments rendered by said
City Court.

SECTION III.

OrpERs MADE IN SpeciAL PRocerpinas.

 

Summary proceedings.—A summary proceeding for the recov-
ery of the possession of real property, may be commenced before a
justice of the peace of the town wherein the real property, or a por-
tion thereof, is situated. (Code of Civil Pro. § 2234.) An appeal
from a final order made in a proceeding so commenced, may be
taken to the County Court of the county in which the order was
made, within the same time, and in the same manner, as where an
appeal is taken froin a judgment rendered by a justice of the peace,
and with like effect, except so far as relates to staying the issuing or
execution of the warrant to dispossess. (Id. § 2260.) But the
appellant is not entitled to a new trial in the County Court on such
appeal. (Brown v. Cassady, 84 Hun, 55.)

Proceedings against animals straying.—Where a justice of
‘the peace has made an order determining a demand for the return
of the possession of an animal seized as an estray, under the remedy
provided by the Code of Civil Procedure, an appeal from such order
may be taken to the County Court by the person making the
demand, or by either party to the special proceeding, at any time
before the final order in the special proceeding is made; and each
person or party so entitled to appeal must be made a respondent
upon an appeal taken by one of the others. The appeal must be
418 New Triats anp APPEALS.

 

Parties to the appeal,

taken in like manner as an appeal from a judgment of the justice in
an action to recover a chattel; and the proceedings thereupon are
the same, except that the appeal will not be effectual for any pur-
pose, unless the appellant procures from the county judge an order
directing a stay of proceedings upon the petition, and a stay of the
execution of the order appealed from, and files it with the justice
within the time allowed for the appeal. (Code of Civil Pro. §§ 3102,
3103.)

An appeal from a final order made upon the petition in such
proceeding, may be taken by the petitioner or by the person answer-
ing within ten days after the making of the final order, in the same
manner as an appeal from a judgment of the justice in an action to
recover a sum of money equal to the value of the animal or animals,
and the proceedings thereupon are the same, except that an appeal by
the person answering is not effectual for any purpose, unless the
appellant files with the notice of appeal, an order of the county judge,
or if he is absent from the county, of a justice of the Supreme
Court, reciting that the appeal has been perfected, and that security
has been given thereupon, as prescribed in section 3105 of the Code
of Civil Procedure, and directing a stay of proceedings upon the
final order appealed from, and that the possession of the animal or
animals seized be given to the appellant. (1d. §§ 3104, 3105.)

ARTICLE II.

‘TAKING AND PERFECTING THE APPEAL AND STAYING
EXECUTION.

SECTION I.
Parties to THE APPEAL.

Any party aggrieved by a judgment of a justice of the peace may
appeal therefrom (Code of Civil Pro. § 3045), whether it is in his
favor (Bissell v. Marshall, 6 Johns. 100; Slaman v. Buckley, 29
Barb. 289), or is against him solely, or against him and another
defendant (Aatteson v. Jones, 9 How. 152); and without regard to
whether the other party has also taken an appeal or not. (Jones v.
Owen, 5 Hun, 339; Glasner v. Wheaton, 2 E, D. Smith, 852; /ob-
bins v. Codman, 4 E. D, Smith, 315.)
True ApreaL must BE TAKEN. 419

 

Time appeal must be taken.

 

An appeal from an order determining a demand for the return
of the possession of animals seized as estrays under the provisions of
the Code of Civil Procedure may be taken by the person making
the demand, or by either party to the special proceeding; and each
party or person so entitled to appeal must be made a respondent
upon an appeal taken by one of the others. (Code of Civil Pro. §
3102.) An appeal from a final order made upon the petition in such
proceeding may be taken either by the petitioner or by the person
answering, (Id. § 3104.)

SECTION II.
TIME WITHIN WHICH THE APPEAL MUST BE TAKEN.

An appeal to the County Court from a judgment rendered by a
justice of the peace must be taken within twenty days after the entry
of the judgment in the justice’s docket; except that when the
defendant appeals from a judgment rendered in an action wherein
he did not appear, and the summons was not personally served upon
him, the appeal may be taken within twenty days after the personal
service upon him on the part of the plaintiff of written notice of the
entry of the judgment, but not after the expiration of five years from
the entry of judgment. (Code of Civil Pro. § 3046.) The time
within which the justice must enter the judgment in his docket-book
has been fixed by statute. (Id. § 3015.) But the statute does not
prohibit a party from appealing from a judgment until it is entered
in the docket-book ; and an appeal taken from a judgment actually
rendered, though not docketed, will not be premature. (See Gris-
wold v. Van Deusen, 2 E. D. Smith, 178.)

What is a sufficient notice of the entry of a judgment to set run-
ning the time limited for taking an appeal has been noticed else-
where. (See ante, p. 56. See also Pearson v. Lovejoy, 35 How.
193 ; 53 Barb. 407.)

An appeal from a final order made in summary proceedings to
recover the possession of real property must be taken within the
time limited for an appeal from a judgment rendered by a justice of
the peace. (Code of Civil Pro. § 2260.) An appeal from an order
determining a demand for the return of the possession of an animal
seized as an estray, maybe taken at any time before a final order is
made upon the petition. (Id. § 3102.) An appeal from the final
420 New Triats anp AppEALs.

 

Notice of appeal.

 

order made upon the petition in such proceeding must be taken
within ten days after such final order is made. (Id. § 3104.)

The objection that an appeal was not taken within the time
limited by the statute must be raised by a motion to dismiss the
appeal, and is not available on the hearing (Disbrow v. Henshaw, 8
Cow. 349) ; at least where the defect does not appear from the return.
(fills v. Shult, 2 E. D. Smith, 139.) If the respondent appears
generally in the County Court and notices the appeal for argument
he will waive the objection that the appeal was not taken in time.
(Pearson v. Lovejoy, 35 How. 193; 53 Barb. 407.)

SECTION III.
Novick or APPEAL.

An appeal is taken by serving upon the justice by whom the
judgment was rendered, and upon the respondent, a written notice
of appeal, subscribed either by the appellant or by his attorney in
the appellate court. (Code of Civil Pro. § 3046.) This alone does
not perfect the appeal in ajl cases. Unless the justice is dead, the
appellant must, at the time of serving the notice upon the justice,
pay the costs of the action included in the judgment, and the fee
of the justice for making the return (Id. § 3047); and ifa new
trial is demanded in the appellate court, the appellant must, at the
time of serving the notice upon the justice, give an undertaking to
stay the execution of the judgment. (Id. § 3069.) So in case of an
appeal from an order made in a special proceeding, security may be
necessary to perfect the appeal, as will be noticed hereafter.

The present Code is silent as to the form of the notice of appeal,
and the old provision of the Code of Procedure requiring a state-
ment in the notice of the ground upon which the appeal is founded
has not been retained. The notice should be entitled in the court
below, and should be subscribed by the appellant or his attorney in
the appellate court, though if it is subscribed by a third person for
the appellant at his request, and in his name, it is sufficient (Hale
v. Sawyer, 47 Barb. 116) ; and if it is not subscribed at all, but is
merely indorsed upon the back with the name and address of the
appellant’s attorney, the notice will not be a nullity, the defect
being one which may be cured by amendment. (Gutbrecht v. Pros-
pect Park, etc., Fe. J. Co., 28 Hun, 497.)
Service or tur Norticr or APpEAL. 491

 

Service of the notice of appeal.

 

If a new trial in the appellate court is desired, it must be
demanded in the notice of appeal. (Code of Civil Pro. § 3068.) If
such demand is not made, the appellant will not be entitled to a new
trial in the appellate court, although the case is one in which such
new trial is a matter of right if properly demanded ; and the review
in the Connty Court will be confined to errors of law appearing upon
the face of the return. The omission is not one which may be cured
by amendment of the notice after the time for taking the appeal has
expired. (Call v. Slack, 36 Hun, 646.)

SECTION Iv.

SERVICE OF THE Nortce or APPEAL.

The notice of appeal must be served upon the justice who ren-
dered the judgment and upon the respondent. (Code of Civil Pro.
§ 3046. See People v. Eldridge, 7 How. 108.) Service of the
notice of appeal upon the justice must be made by delivering it to
him personally, or to his clerk, appointed pursuant to law ; butif the
justice is dead, or if neither he nor his clerk can after reasonable dili-
gence be found within the county, service of the notice upon the
justice may be made by delivering it to the appellate court. (Id. §
3047.)

Service of the notice of appeal upon the respondent may be made
by delivering it in any-part of the State to the respondent personally,
or in one of the following methods :

1. If the respondent is a resident of the county, by leaving it at
his residence with a person of suitable age and discretion. If he is
not a resident of the county, and the person who appeared upon the
trial as his attorney is a resident thereof, it may be served upon the
attorney, either personally, or by leaving it at his residence with a
person of suitable age and discretion.

2. If service within the county cannot be made, with due dili-
gence, upon the respondent personally, or in the method prescribed
in the foregoing subdivision, the notice of appeal may be served upon
him by delivering it to the clerk of the appellate court. (Id. § 3048.)

If the respondents are partners, service on one of the partners
will be good service on both. (dfiller v. Perrine, 1 Hun, 620.)
429 - New Trrats anp APPEALS.

 

Payment of fee for the return.

 

SECTION V.

Payment oF THE Costs In THE JUDGMENT, AND THE FEE FOR THE
Rerorn.

Unless the justice who rendered the judgment is dead, the appel-
lant must, at the time of serving the notice of appeal upon him, pay
to the person to whom it is delivered the costs of the action included
in the judgment, and the sum of two dollars as the fee of the justice
for making the return. (Code of Civil Pro. § 3047.) If the notice
of appeal is served personally upon the justice, the payment will be
made to him. If the notice is served upon the justice by delivering
it to his clerk, or to the clerk of the appellate court, the payment
must be made to the person to whom the notice is delivered.

The payment of the costs included in the judgment and the fee
of the justice for making the return, is as necessary to render the
appeal effectual as the service of the notice of appeal upon the jus-
tice and the respondent; and it has been held that payment of such
costs and fees within the time limited is jurisdictional, and that
without it the appeal must be dismissed. (See Thomas v. Thomas,
18 Hun, 481; Eldridge v. Underhill, 17 Hun, 241; Ex parte La
Farge, 6 Cow. 61; Ex parte Stephens, 6 Cow. 69; People v. Sara-
toga Common. Pleas, 1 Wend. 282; Southard v. Philips, 7 Hun,
18.) The doctrine that payment of costs and fees is a prerequisite
of a valid appeal is well settled ; but the further doctrine laid down
in some of the cases, that the appellate court has no power to allow
such payment to be made after the time to appeal has expired, was
announced before section 3049'of the present Code was enacted, and
must be deemed modified by that section.

A justice, by making a return without payment of his fee there-
for, may undoubtedly waive such payment to him. But the costs
included in the judgment belong to the respondent ; and no act of
the justice can waive the right of the party to their payment within
the time limited for taking an appeal. (Zhomas v. Thomas, 18
Hun, 481.) If the justice does not waive the payment of his fee,
and the appellant does uot pay or offer to pay it, the appellate court
has no power to compel a return, and the appeal 1 must be dismissed.
(Sce Van Heusen v. Kirkpatrick, 5 Mow, 422.) ‘So if the appellant
Srourity To Perrect AN APPEAL. 423

 

Form and contents of the undertaking.

 

does not pay or tender to the justice the costs included in the judg-
ment, and a return is made notwithstanding the omission, the appeal
must be dismissed, unless the appellant satisfactorily excuses his
neglect, and the appellate court, in the exercise of its discretion,
allows the payment to be made upon such terms as justice requires.
(See Code of Civil Pro. § 3049. See ante, p. 73.)

SECTION VI.

Srcurrry to Perrect an APPEAL FROM A JUDGMENT, or To Sray
Execution.

Where an appeal is taken from a judgment rendered by a justice
of the peace, and a new trial in the appellate court is not demanded
in the notice of appeal, the appellant is not required to give security
to perfect the appeal, and may give or omit to give security to stay
the execution of the judgment, as may suit his inclination or conven-
ience. But if he demands a new trial in the appellate court, he has
no option, and to render such appeal effectual, he must, at the time of
the service of the notice of appeal upon the justice, give the under-
taking required by section 3050 of the Code, to stay the exceution of
the judgment. (See Code of Civil Pro. § 3069; Struve v. Droge, 62
Tow. 258; Kuntz v. Licht, 8 Hun, 14.) The cases in which a new
trial in the appellate court may be demanded in the notice of appeal,
will be noticed in the next section but one.

Form and contents of the undertaking.—Upon an appeal
from a judgment rendered by a justice of the peace, if the appellant
desires a stay of execution, he must give a written undertaking, exe-
cuted by one or more sureties, approved by the justice who rendered
the judgment, or by a judge of the appellate court, to the effect that
if the appeal is dismissed, or if judgment is rendered against the
appellant in the appellate court, and an execution issued thereon is
returned wholly or partly unsatisfied, the sureties will pay the
amount of the judgment, or the portion thereof remaining unsatis-
fied, not exceeding a sum specified in the undertaking, which must
be at least one hundred dollars, and not less than twice the amount
of the judgment; or if the judgment in the justice’s court is for the
recovery of a chattel, that the sureties will pay the sum fixed by that
judgment as the value of the chattel, together with the damages if
424 ‘* New Triats anp APPEALS.

 

‘Approval of the undertaking,

 

any awarded for the taking, withholding or detentio. thereof. A
copy of the undertaking, with a notice of the delivery thereof, must
be served with the notice of appeal, and in like manner. (Code of
Civil Pro. § 3050.) The mode of serving the notice of appeal has
been pointed out. (Ande, p. 421.)

Approval of the undertaking.—The Code expressly requires
an approval of the undertaking by the justice who rendered the
judgment, or by a justice of the appellate court, but also makes sec-
tion 1335 of that act applicable to such‘an undertaking. (Code of
Civil Pro. § 3050.) The section thus made applicable, provides that
it is not necessary that the undertaking should be approved. (Id.
§ 1335.) So far, the sections are in conflict. But section 3134 pro-
vides, that “where a provision of this act, not contained in this
chapter, is made applicable to proceedings before a justice of the
peace, the application is subject to the qualification, that it does not
include anything which is repugnant to any special provision of law
regulating the jurisdiction or powers of a justice of the peace, or
the proceedings before him.” Under this explanatory section, the
part of section 1335 which provides, that it is not necessary that the
undertaking should be approved, is inapplicable to the undertaking
given on appeal from a judgment rendered by a justice of the peace,
notwithstanding the general language used in the last clause of sec-
tion 3050, and the special provision contained in that section requir-
ing an approval of the undertaking, is to be regarded as unim-
paired and obligatory.

The application to the justice or to the county judge for an
approval of the undertaking, is always ex parte, and is too often a
inere matter of form. At the time it is presented for approval it
must be complete in form, and must be accompanied with the affi-
davit of each surety subjoined thereto, to the effect that he is a resi-
dent of and a householder or a freeholder within the State, and is
worth twice the sum specified in the undertaking, over all the debts
which he owes or has incurred, and exclusive of property exempt
by law froin levy and sale under execution. (See Code of Civil Pro.
$812.) Ordinarily, an undertaking, otherwise in regular form,
which is accompanied by the proper affidavit of justification, is
approved as of course, and the approval is indorsed upon the under-

taking.
Orver in A SpEcIAL Procrrpina. 495

 

Summary proceedings.

 

Service and filing of the undertaking.—The original under-
taking, with the approval thereon, should be delivered to the justice,
or to his clerk appointed pursuant to law, and should be filed with
him. (Code of Civil Pro. §§ 816, 3134.) A copy of the undertak-
ing, with a notice of the delivery thereof, should be served upon the
respondent with the notice of appeal, and in like manner. (Id.
§ 3050.)

The delivery of the undertaking to the justice or his clerk
appointed pursuant to law, and service of a copy thereof, and of
notice of the delivery thereof, stay the issuing of an execution upon
the judgment. If an execution has been issued, the service of a
copy of the undertaking, certified by the justice or the clerk, or
accompanied with an affidavit showing that it is a copy, and that the
original has been duly filed, upon the officer holding the execution,
stays further proceedings thereunder, (Id. § 8051.)

Where the justice is dead, or cannot with due diligence be found
within the county, and he has no clerk appointed pursuant to law,
or the clerk cannot with due diligence be found within the county,
the undertaking may be filed with the clerk of the appellate court.
In that case, notice of the filing must be given to the respondent as
prescribed in section 3048 of the Code for service of a notice of
appeal upon him. The filing of the undertaking has the same effect
as the delivery thereof to the justice; and a copy thereof, certified
by the county clerk, served upon the officer holding an execution,
has the same effect as if it was certified as prescribed in section 8051,
above cited. (Id. § 3052.)

SECTION VII.
Szcurtry on APPEAL FROM AN OrpDER IN A SPECIAL PROCEEDING.

Summary proceedings.—No security is required to perfect an
appeal from a final order made by a justice of the peace in a sum-
mary proceeding to recover the possession of lands, as such appeal is
to be taken in the same manner as if it were from a judgment of
the justice (Code of Civil Pro. § 2260), in a case where a new trial
could not be demanded in the appellate court (see Brown v. Cas-
sady, 34 Hun, 55); and, as has been stated, no security is required to
perfect an appeal from such judgments. (Ante, p. 423.)

But if the appeal is taken from a final order, awarding delivery
426 New Triats anp APPEALS.

 

Staying special proceedings against estrays,

of possession to the petitioner, which establishes that a lessee or ten-
ant holds over after a default in the payment uf rent, and the appel-
lant desires to stay the issuing and execution of a warrant to dispos-
sess him, he may, except in the city and county of New York,
obtain such a stay under an order of the county judge. Such an
order can be made only upon the appellant’s giving the security
required to perfect the appeal and stay execution of the order
appealed from, and also an undertaking to the petitioner in a
sum, and with sureties, approved by the county judge, to the effect,
that if upon the appeal, a final determination is rendered against the
appellant he will pay all rent accruing or to accrue upon the prem-
ises, or if there is no lease thereof, the value of the use and oceupa-
tion of the premises subsequent to the institution of the special pro-
ceeding. (Code of Civil Pro. § 2262.)

The issuing or execution of the warrant cannot be stayed by such
an appeal, or by the giving of an undertaking thereupon, otherwise
than as above provided. (Id. § 2261.)

The provisions as to staying proceedings on appeal in summary
proceedings apply only where a tenant holds over after default in the
payment of rent. (Shaw v. McCarty, 2 McCarty, 235.) In a case,
of holding over after the expiration of the tenant’s term, no stay of
the issue or execution of the warrant can be had. (Schenck v. Prame,
63 How. 165.)

The provision that the appellant shall give the security required
to perfect the appeal before the county judge can make an order
directing a stay, was perhaps not intended to apply to appeals from
final orders made by justices of the peace, but to appeals taken in a
case where security to perfect the appeal is required by statute.

Staying special proceedings against estrays.—An appeal
from a final order upon a petition in a special proceeding relating to
an animal straying upon the highway, taken by the person answer-
ing the petition, is not effectual for any purpose unless the appellant
files, with the notice of appeal, an order of the county judge, or, if
he is absent from the county, of a justice of the Supreme Court,
reciting that the appeal has been perfected, and that security has
been given thereupon as prescribed below, and directing a stay of
proceedings upon the final order appealed from, and that the posses-
sion of the animal or animals seized be delivered to the appellant.
The order can be made only where an undertaking is given by the
Orper in A SpectaL PRo kevine. 427

 

‘Staying special proceedings against estrays.

 

appellant, as required for the perfecting an appeal from a judgment
and staying the execution thereof; and also an undertaking in the
same or another instrument, to the effect that if the final order
appealed from is affirmed, or if the appeal is dismissed, the appellant
will pay all sums which the justice awards against him upon the
hearing after the determination of the appeal, not exceeding a snm
specitied therein, which must be at least twice the amount of all the
sums which might be deducted from the proceeds of the sale as pre-
scribed in section 8092 of the Code. The sum must be fixed, and
the undertaking must be approved by the judge who grants the
order. Upon filing the order with the justice the appellant is forth-
with entitled to the possession of the animal or animals seized.
(Code of Civil Pro. § 3105.) The proceedings to obtain a stay upon
an appeal from such an order, except by the person answering as
prescribed as above, are the same as upon an appeal from a judg-
ment of a justice in an action to recover a sum of money equal to
the value of the animal or animals. (Id. § 3104.)

An appeal from an order determining a demand for the return of
the possession of an animal seized as a stray is not effectual for any
purpose, unless the appellant procures from the county judge an
order directing a stay of the proceedings upon the petition, and a
stay of the execution of the order appealed from, and files it with
the justice within the time allowed for the appeal. The order may
be granted or refused in the discretion of the county judge, or
granted upon such terms as to security or otherwise as he thinks
proper; and it may be vacated or modified, either absolutely or
unless further security is given, in his discretion. (Id. § 3103.)

Where the appeal is from an order determining a claim to a sur-
plus of the proceeds of the sale of the animals seized, an undertaking
is not necessary for any purpose. The county judge may, in his dis-
cretion, make an order extending the time within which payment of
the surplus must be made, and staying payment accordingly. Unless
such an order is made, and a copy thereof is served upon the justice,
payment must be made as prescribed in section 3094 of the Code,
notwithstanding the appeal; and upon proof of the payment the
appeal must be dismissed. (Id. § 3095.)
428 New Trrats anp APPEALS.

 

When the appellant may demand a new trial in the County Court.

 

SECTION VIII.

When tur APPELLANT MAY DEMAND A New Triax In tue County
Covrr.

Where an issue of fact or an issue of law was joined before the
justice, and the sum for which judgment was demanded by either
party in his pleading exceeds fifty dollars; or where, in an action
to recover a chattel, the value of the property, as fixed, together
with the damages recovered, if any, exceeds fifty dollars ; the appel-
lant may, in his notice of appeal, demand a new trial in the appel-
late court ; and thereupon he is entitled thereto, whether the defend-
ant was or was not present at the trial. (Code of Civil Pro. § 3068.)

Whether a defendant is entitled to a new trial in the County
Court where his answer alleges that the plaintiff is indebted to
him in a sum exceeding fifty dollars, but contains no formal
demand for judgment fora sum exceeding fifty dollars, has been con-
sidered in a comparatively recent case, but not passed upon. (See
Matteson v. Hall, 64 How. 515.) The demand of a judgment for a
sum exceeding fifty dollars in the pleading of one of the parties
seems to have been intended as the test of the right to demand and
obtain a new trial in the appellate court. (See Brown v. Cassady,
34 Hun, 55; Ovenshire v. Adee, 27 How. 368; Merrill v. Patti-
son, 44 llow. 289; Hayes v. Kedzie, 11 Hun, 577; Thompson v.
Pine, 5 Hun, 647; Hobbs v. Wetherwax, 38 How. 389.) But it is
not in every case that the defendant will he entitled to demand and
obtain a new trial in the County Court by virtue of a demand of
judgment in his favor for a sum exceeding fifty dollars. An
improper pleading cannot be made the basis ny a demand for a new
trial. (Denniston v. Trimmer, 27 Hun, 393 ; Harvey v. Van Dyke,
66 How. 396; Houghton v. Kenyon, 38 How: 107.)

In an aca of replevin the value of the property may be fixed
by the pleadings or by the judgment of the court below; and in
either case, if the value exceeds fifty dollars, the appellant is entitled
toa new trial. (Merrill v. Pattison, 44 How. 289; Leynolds v.
Swick, 35 Hun, 278.)

A new trial cannot be had in the appellate court on an appeal
Exception To SCRETIES AND JUSTIFICATION. 429

 

Plaintiff's sureties and justification.

 

from a final order made in a summary proceeding. (Brown v. Cas-
sady, 34 Hun, 55.)

SECTION IX.
AMENDMENT oF PRocEEDINUS TO TAKE AN APPEAL.

The Code provides that where the appellant seasonably and in
good faith serves the notice of appeal upon either the justice or the
respondent, but omits, through mistake, inadvertence or excusable
neglect, to serve it upon the other, or to do any other act necessary
to perfect the appeal, the appellate court, upon proof by affidavit of
the facts, may, in its discretion, permit the omission to be supplied,
or an amendment to be made upon such terms as justice requires.
(Code of Civil Pro. § 3049.)

It has been held that this section was intended to prevent an
injury to appellants arising from mere technical variances or omis-
sions ; and that any act on the part of the appellant which consti-
tutes a step in the proceeding to appeal, and which evinces his
intention in good faith to perfect and prosecute his appeal, is a suffi-
cient ground for amendment. (Gutbrecht v. Prospect Park, ete.,
R. R. Co. 28 Hun, 497. See Sherman v. Wells, 14 How. 522;
Burrows v. Norton, 2 Hun, 550; 48 How. 182.)

The scope of this and similar provisions of the Code,,and the
mode of applying for leave to amend, have been considered in
another chapter. (See ante, p. 116.)

ARTICLE ITI.

PROCEEDINGS BETWEEN NOTICE OF APPEAL AND ARGUMENT. :

SECTION L
Exception to Puarstirr’s SvRETIES AND JUSTIFICATION.

Within ten days after service of a copy of the appellant’s under-
taking with notice of the filing thereof, the respondent may serve
upon the attorney for the appellant a written notice that he excepts
to the sufficiency of the sureties. Within ten days thereafter, the
sureties, or other sureties in a new undertaking to the same effect,
430 New Trrar3 AND APPBALS,

 

Appeal for a new trial.

 

must justify before the justice who rendered the judgment appealed
from or the county judge. At least five days’ notice of the justifica-
‘tion must be given (Code of Civil Pro. § 1335), or double that time
if the notice isserved by mail. (Dresser v. Brooks, 5 How. 75.) At the
time and place fixed by the notice, the appellant should appear before
the judge or justice with his sureties for the purpose of having them
examined on oath touching their sufficiency. The proceedings on
justification have been sufficiently noticed. (See ante,p.100.) The
justice who rendered the judgment appealed from has all the powers
of a county judge or justice of the Supreme Court in respect to the
conduct of the proceedings upon justification. (Code of Civil Pro.
88 3050, 3134.)

If the judge or justice finds the sureties sufficient, he must indorse
his allowance of them upon the undertaking, or a copy thereof ; and
a notice of the allowance must be served upon the attorney for the
respondent. The effect of a failure so to justify and to procure an
allowance is the same as if the undertaking had not been given.
(Id. § 3185.)

Where the approval of an insolvent surety is obtained by per-
jury, and the appellant knew of his insolvency at the time of the
execution of the undertaking, the court will dismiss the appeal on
motion of the respondent. (ison v. Murray, 27 Hun, 536.)

SECTION II.
Orrers to Compromise on APPEAL For A NEw TRIAL.

Where a new trial in the appellate court is demanded in the
notice of appeal, and the appeal is from a judgment for a sum of
money only, either party may, within fifteen days after service of
the notice of appeal, serve upon the adverse party or upon his attor-
ney, a written offer to allow judgment to be rendered in the appel-
late court, in favor of either party, for a specified sum. If the offer
is not accepted, it cannot be proved upon the trial. If the party,
within ten days after the service of the offer upon him, serves upon
the party making the same, or upon his attorney, written notice that
he accepts the offer, he must file it, with an affidavit of service of
the notice of acceptance, with the clerk of the appellate court, who
thereupon must enter judgment accordiagly. Where an offer is
made as above provided, the party refusing to accept the same shall
AppEAL FoR A New TRIAL. 431

 

Appeal for a new trial.

 

be liable for the costs of the appeal, unless the recovery shall be
more favorable to him than the sum offered. If neither party make
an offer, as provided herein, the party in whose favor the verdict,
report, or decision in the appellate court is given, shall be entitled
to recover his costs upon the appeal. (Code of Civil Pro. § 3070.)

Before the amendment of this section in 1885, it authorized an
offer of judgment by the respondent only, and required that the
offer should be made before the return was filed. Under the section
as amended, either party may make the offer within fifteen days
after service of the notice of appeal, whether the return has been
filed or not.

The Code also provides, that either party may at any time after
the action is deemed at issue in the appellate court, and before the
trial, serve upon the adverse party a written offer to allow judgment
to be taken against him for a sum or property, or to the effect therein
specified, with or without costs. If there are two or more defend-
ants, and the action can be severed, a like offer may be made by one
or more defendants against whom a separate judgment may be taken,
and if it is accepted, the action becomes severed, and may proceed
against the other defendants as if it had originally been commenced
against them only. If the party receiving the offer, within ten days
thereafter, serves upon the adverse party notice that he accepts it, he
may file it, with proof of acceptance, and thereupon the clerk must
enter judgment accordingly. If the offer is not thus accepted, it
cannot be proved upon the trial, and if the party to whom it was
made fails to obtain a more favorable judgment, he cannot recover
costs from the time of the offer, but must pay costs from that time.
(Code of Civ. Pro. § 3072.)

Under this section an offer may be made by either party with-
out regard to the nature of the action in the court below. In this
respect the remedy is more general in its application than that pro-
vided by section 3070 before cited. But the offer made by the party
under section 3072 must be to the effect that judgment be taken
against him ; while the offer under section 3070 may be to the effect
that judgment be rendered for him, or that it be rendered against
him.

The action is deemed at issne in the appellate court after the
expiration of ten days from the time of filing the justice’s return.
(Code of Civil Pro. § 3071.) The offer, under section 3072, may
be made at any time thereafter if before trial. (Id. § 3072.) But
439 New Triats anp APPrALs.

 

Stipulation by respondent for a reversal.

 

as the party to whom the offer is made has ten days in which to
serve his acceptance, the offer will be practically a nullity if it isnot
served at least ten days before the cause is reached in its regular
order on the calendar. (See Herman v. Lyons, 10 Hun, 111; 2
Abb. N. C. 99; Pomeroy v. Hulin, 7 How. 161; Walker v. John-
son, 8 How. 240; Hawley v. Davis, 5 Hun, 642; Astor v. Palache,
49 How. 231.)

SECTION III.
Strrvtation By ResponpDENT FOR A REVERSAL.

If the case is one where the appellant is not entitled to or has
not demanded a new trial in the appellate court, as provided in sec-
tion 3068 of the Code (see ante, p. 428), the respondent may, within
twenty days of the service upon him of the notice of appeal, serve
upon the appellant or his attorney a written stipulation that the
judgment appealed from may be reversed with five dollars costs and
disbursements of the appeal, and thereafter no further steps shall be
taken in such appeal except to enter judgment in pursuance of such
stipulation for the enforcement thereof. (Code of Civil Pro.
§ 3062.)

The effect of the service of this stipulation is clearly stated in the
section cited. It terminates the appeal and stays all further steps
therein except to enter judgment in pursuance of the stipulation.
The clerk is not authorized to enter a judgment of reversal upon
the stipulation and proof of its service on the appellant. It would
seem that the appellate court must direct the entry of the judgment
as in other cases (Id. § 3063), and, as an incidental part of such pro-
cedure, may, in a proper case, include in the judgment the proper
direction for the restitution of property or of rights lost by means
of the judgment below. (Id. § 3058.) It is not to be presumed
that the legislature intended to limit the appellant to the bare right
to enter a judgment of reversal with five dollars costs and disburse-
ments without the ordinary remedies which follow a reversal, such
as an order of restitution and execution.
Rerurn upon APPEAL. 433

 

Contents of the return—Compelling the return, or a further return,

SECTION IV.
Rerourn vpon APPEAL.

After ten, and within thirty days from the service of the
notice of appeal and the payment of the costs and fee as pre-
scribed in section 3047 of the Code (See ante, p. 422), the jus-
tice must make a return to the appellate court, annex thereto
the notice of appeal and the undertaking, if any has been deliv-
ered to him or his clerk, and file the same with the clerk of the
appellate court. (Code of Civil Pro. § 3053.) Where the justice
has gone out of office, he must nevertheless make a return in the
same manner, and his return has the same effect as if he remained
in office. (Id. § 3054.) But the justice cannot be compelled to
make a return unless his fee therefur has been paid. (Van Heusen
v. Kirkpatrick, 5 How. 422.)

Contents of the return.—The return must contain all the pro-
ceedings, including the evidence and the judgment, unless the appel-
lant has in his notice of appeal demanded a new trial in a case where
he is entitled thereto as prescribed in section 3068 of the Code. (See
ante, p. 428.) In the latter case the justice must return the summons,
together with each warrant of attachment, order of arrest, or requi-
sition to replevy, or execution granted by him in the action, with
proof of the service thereof; the pleadings, or copies thereof; the
proceedings upon the trial; and the judgment, with a brief statement
of the amount and nature of the claims litigated by the parties. But
he need not return the evidence, or any party thereof, unless he is
required so to do by the special order of the appellate court. (Code
of Civil Pro. § 3053.)

Compelling the return, or a further return.—If the jus-
tice fails to file a return within the time limited, the appellant may
apply to the appellate court, on an affidavit showing the default of
the justice, for an order directing him to file the return forthwith, or
within a time specified. So if a defective return is filed, the appel-
lant should apply to the appellate court, upon an affidavit setting forth
the particulars in which the return is omissive or defective, for an
434. New Triats AnD APPEALS.

 

Substitute for the return.

 

order directing a further or amended return. If the return is defec-
tive, the appellate court may direct the justice to make a further or
amended return as often as is necessary. The appellate vourt may
compel the justice by attachment to make and file a return or a
further or amended return. The court is always open for these pur-
poses.

Where the justice has removed to another county of the State,
the appellate court may compel him to make the return as if he was
still within the county where the judgment was rendered. (Code of
Civil Pro. § 3055.)

The order for a further or amended return should direct the jus-
tice to make a further return within a time specified, and to state
therein whether or not the proceedings were had or evidence was
given before him as to which his return is claimed to be omissive or
defective. The several matters as to which the further demand is
required should be distinctly and separately stated in the order in
substantially the same manner as interrogatories are framed to attach
toacommission. In obedience to this order, the justice should make
a return upon each of the matters specified according to the fact. If
he neglects or refuses to make the return, the appellant should pre-
pare proof of the service of the order upon the justice personally and
of his neglect or refusal to obey it, and on these papers should apply
to the appellate court for an attachment.

Where the County Court has no jurisdiction of the appeal by
reason of relationship, etc., a notice of motion in the Supreme Court
for an order to compel the justice to amend his return may be given
in twenty days after the date of the certificate of the county judge,
and not after that time. (Rule 45.)

There is no settled and uniform practice as to the mode of com-
pelling a return or a further or amended return in the various coun-
ties of this State. Special local rules have been adopted by certain
County Courts governing the practice in the counties where such
courts are held, which it would be impracticable to give in this vol-
ume. Such rules have been adopted in the counties of Albany, Jef-
ferson, Lewis, Madison, Onondaga, Orleans, Saratoga, and probably
in some others. These rules are subject to change at any time, and
are incapable of any general classification.

Substitute for the return.—If the justice dies, becomes a
lunatic, absconds, removes from the State, or otherwise becomes
Rerern cpun Appran. 435

 

Aiding or contradicting the return.

 

unable to make the return, the appellate court may receive affida-
vits, or examine witnesses, as to the evidence and other proceedings
taken, and the judgment rendered, before the justice; and may
determine the appeal as if a return had been duly made by the jus-
tice. (Code of Civil Pro. § 3056.)

Aiding or contradicting the return.—Where the return of
the justice is full and complete, it is irregular to entertain affidavits
controverting it, or to require the justice to make a further return
as to any matter therein stated which a party claims to be false.
(Barber v. Stettheimer, 138 Hun, 198.) As to points upon which the
return is full and explicit it isto be taken as true, both upona
motion for a further or amended return, or upon the hearing of the
appeal. (Id.; Rawson v. Grow, 4 E. D. Smith, 18; Spence v. Beck,
1 Hilt. 276; Kilpatrick v. Carr, 3 Abb. 117; Mitchell v. Menkle,
1 Hilt. 276; Fitzsimmons v. Baxter, 3 Daily, 81; Garrison v.
Pearce, 3 E. D. Smith, 255; Lynsky v. Pendegrast, 2 E. D. Smith,
43. But see Capewell v. Ormsby, 2 E. D. Smith, 180.) And mat-
ters not appearing in the return cannot be brought to the notice of
the appellate court, except by a motion for a further or amended
return. (See Hyland v. Sherman, 2 E. D. Smith, 234; Capewell v.
Ormsby, 2 E. D. Smith, 180; Zrust v. Delaplaine, 3 E. D. Smith,
219; Lynsky v. Pendegrast, 2 E. D. Smith, 43; Rawson v. Grow,
4 E. D. Smith, 18.) The only cases in which affidavits can be used
to overthrow the judgment appealed from, is where the defendant
failed to appear on the trial, and introduces affidavits to excusc his
default and show that manifest injustice has been done him, or
where the appellant alleges error in fact, not within the knowledge
of the justice, such as infancy, and the like, or where, on account of
some disability’ of the justice, he is unable to make any return.
(Collier v. Van Hosen, 6 Week. Dig. 49; Code of Civil Pro.
§§ 3056, 3057, 8064.) In any other case an affidavit cannot be used
to add to or to controvert the return, or as a substitute for a return.
436: New Triars anp Apprats.

 

Respondent’s remedy where a new trial is improperly demanded.

 

SECTION V.

Resronpenr’s Remepy wHEerRE A New Triat 1s ImpropERLy
DeMAnvDeED.

Where the appellant in his notice of appeal has demanded a new
trial in the appellate court in a case not authorized by the statute,
the respondent is not entitled to an order dismissing the appeal.
The appeal is not a nullity, and if the appellant is not entitled toa
new trial in the County Court, he is entitled to a hearing and con-
sideration by that court, of the questions of law presented by the
appeal. (Matteson v. Tall, 64 How. 515.) But the respondent is
not without a remedy. He may wait until the case is reached in
its regular order on the calendar, and then move to strike out the
improper pleading upon which the demand for a new trial was based,
and that the case be transferred to the law calendar and be argued
on the return (Denniston v. Trimmer, 27 Tun, 393); or he may
make this motion in advance of the trial, upon the filing of the
return (Harvey v. Van Dyke, 66 How. 396; [Houghton v. Kenyon,
38 How. 107), and if it appears that the case is not one in which a
new trial is authorized, the court will grant the motion. The better
practice is to make the notion before tle cause is brought to a hear-
ing, as, in case the motion is granted, this will save the expense of
preparing for a trial in the County Court, and will remove all grounds
for a motion on the part of the appellant to put the cause over to
erable him to prepare for argument upon the questions of law. If
the respondent’s motion is granted, and there’ are any questions of
law depending upon evidence given in the court below, not included
in the return filed by the justice, the party desiring to present such
evidence to the County Court on the hearing of the appeal, should
move in that court for an order directing the justice to return the
evidence, or such part thereof asthe moving party may desire. Such
an order will be granted in a proper case. (See Code of Civil Pro.
§ 3053.)
Motion to AMEND tit PLreapines. 437

 

Motion to amend the pleadings.

 

SECTION VI.
Motion to Ameyp tur PLEADINGS.

The Code provides that the court must upon application allow a
pleading to be amended at any time before the trial, or during the
trial, or upon appeal, if substantial justice will be promoted thereby.
(Code of Civil Pro. § 2444.) It also provides that where a new trial
in the appellate conrt is demanded in the notice of appeal, and ten
days from the time of filing the return has expired, the action is to
be deemed at issue in the appellate court, and all the proceedings
therein are the same as if the action had been commenced in the
appellate court, except as otherwise specially prescribed in chapter
19 of that act. (Id. § 8071.) There is no special provision in that
chapter limiting the general powers of the County Couri to amend
a pleading, unless it be the implied condition that substantial justice
must be promoted by the amendment. With that qualification,
where an appeal las been taken for a new trial, and the cause is at
issue in the appellate court, an amendment of the pleadings may be
allowed by that court in any case where such an amendment would
be allowed if the action had originally been commenced thercin.
The general provisions of the Code as to the right to amend before
or after judgment, have been given. (See ante, p. 165.) But it has
been held that on an appeal for a new trial, tle County Court cannot
allow an answer consisting of a general denial to be amended by
inserting therein new and affirmative defenses, such as payment, set-
off, or counterclaim ; and that no amendments should be allowed
which would entirely change the issues in the court below, but only
such as would enable the parties to fully and fairly try such issues.
(Reno v. Millspaugh, 14 Wun, 229.)

By the rules of the Albany County Court it is provided that no
party shall be allowed to amend his pleadings by adding anew cause
of action or defense in a case where upon appeal from a justice’s
judgment a new trial is to be had, except on a motion upon a notice
of eight days specifying the amendments proposed, and except also
upon payment of ten dollars costs of motion, and of the costs of the
appeal up to the time when euch motion shall be granted, which
costs shall in no event be recovered back by the party so ainending,
438 New Trrats anp Apprats.

 

Where a new trial cannot be had in the appellate court.

 

provided that supplemental pleadings may be made on such terms as
the court shall deem just, in the event of new facts arising or becom-
ing known.

SECTION VII.

Friuine Nore or Issvxn, anp szrvina 4 Notice or Triat or Argu-
MENT.

Where a new trial is to be had in the appellate court,
the cause is placed upon the calendar and brought to trial in the
same manner as it would be if the action had been originally com-
menced therein. (Code of Civil Pro. § 3071.)

At any time after the joinder of issue, and at least fourteen days
before the commencement of the term, either party may serve a
notice of trial. (Id. § 977.) In case of an appeal for a new trial, the
issue is deemed joined at the expiration of ten days from the time
of filing the justice’s return. (Id. § 3071.) Service of a notice of
trial before the cause is at issue is unauthorized. If the notice is
served by mail it must be served at least sixteen days before the
commencement of the term. (Id. § 798.)

The party serving the notice must file with the clerk a note of
issuc, stating the title of the action, the names of the attorneys, the
time when the last pleading was served, the nature of the issue,
whether of fact or of law, and, if an issue of fact, whether it is tria-
ble by a jury or by the court without a jury. The note of issue must
be filed at least twelve days before the commencement of the term.
The clerk must thereupon enter the canse upon the calendar accord-
ing to the date of issue. (1d.§ 977. See Trial Practice, pp. 126-
133.) The rules of the Saratoga County Court requires a note of
issue as of the date of the expiration of ten days from filing the jus-
tice’s return, as that is the time when the action is deemed at issue in
the County Court.

Where a new trial cannot be had in the appellate court,
and the respondent has not served a stipulation that lhe judgment
appealed from may be reversed, the appeal may be brought to a hear-
ing in the appellate court at any term thereof at which such an
appeal can be heard, held after the return is filed, upon a notice by
either party of not less than eight days. It must be placed upon the
-ealendar, and must continue thereupon without further notice, until
Presenting Errors 1n Facr. 4389

 

Presenting errors in fact.

 

it is finally disposed of. (Code of Civil Pro. § 3062.) Although
the cause will continue upon the calendar until it is disposed of, a
notice of argument for one term will not bring on the cause for a
hearing at any subsequent term. A notice of argument must be given
at least eight days before the term at which the party seeks to be
heard, whether a notice for a prior term has been served or not
(Matthews v. Arnold, 14 Hun, 376. But see Townsend v. Keenan,
2 Hilt. 544.)

If after being regularly placed upon the calendar neither party
brings the cause to a hearing before the end of the term thereafter
at which it might be noticed for hearing and. heard, the court must
dismiss the appeal unless it directs the same to be continued for
eause shown. (Code of Civil Pro. § 3062.) The terms at which an
appeal of this character may be heard, are those specified in sections
355 and 356 of the Code of Civil Procedure.

The Code does not in express terms require a note of issue to put
the cause on the calendar in this class of appeals (See Matthews v.
Arnold, 14 Hun, 376); but it is the usual practice to file a note of
issue with the clerk at least eight days before the commencement of
the term. In Albany, Onondaga, Orleans, Saratoga, and probably in
other counties, the filing of a note of issue is made the subject of a
special local rule. The note of issue may be in the usual form, the
date of the issue being stated as of the time of taking the appeal.

SECTION VIII.
Presenting Errors in Fact to toe APPELLATE Court.

Ordinarily, the right of an appellant to relief from the judgment
rendered against him, is to be determined from an inspection of the
return, if the case is not one where a new trial may be had in the
appellate court. But if the right to relief depends upon an error
of fact in the proceedings, not affecting the merits of the action, and’
not within the knowledge of the justice, the return will necessarily
be inadequate to present the question to the appellate court for
review. It is therefore provided, that the court may determine the
matter upon affidavits, or in its diserction, upon the examination of
witnesses, or in both methods. (Code of Civil Pro. .§ 3057.)

As an appeal is taken by the service of a notice which is silent as
to the grounds upon which a reversal of the judgment is sought, and
440 New Triats anp APPEALS.

 

Presenting errors in fact.

 

the respondent may be totally ignorant of the error relied upon to
overthrow the judgment, the courts properly require the appellant
to serve upon the respondent, at least eight days before the com-
mencement of the term, affidavits setting forth the facts claimed to
constitute the error in fact. (Sce Hurd v. Beeman, 8 How. 254 ;
Cook v. Swift, 18 How. 454; 10 Abb. 212; Adsit v. Wilson, 7
How. 64; Lynch v. McBeth, 7 How. 43; Sperry v. Reynolds, 5
Lans. 407.) This enables the respondent to prepare counter affidavits
to be read upon the hearing, or to subpcena witnesses to be examined
on his behalf in respect to the new issue presented.

In the County of Albany, the appellant is required to serve his
affidavits upon the respondent, at least ten days before the com-
mencement of the term, and the respondent is required to serve his
affidavits upon the appellant, at least five days before the first day
of the term; ana on the hearing of the appeal, the appellant is
allowed to read other unserved affidavits in reply to new matter con-
tained in the affidavits of the respondent, and the latter, by leave of
the court, may be allowed to read affidavits in reply to the unserved
affidavits of the appellant.

In the Lewis County Court, the appellant’s affidavits, with a
notice of their object, must be served upon the respondent fifteen
days before the hearing, and the respondent is allowed to read
unserved affidavits in reply. In Onondaga and Saratoga counties,
the appellant’s affidavits may be served eight days before the hear-
ing, while in Orleans county, the appellant must serve his affida-
vits, at least by the time he notices the appeal for a hearing, or, if

‘the appeal is noticed by the respondent only, within four days after
service of such notice. In the counties above mentioned, the prac-
tiee in this respect is governed by special local rules.

The term “ error in fact,” has no reference to an erroneous find-
ing of the court or jury upon the cvidence, but applies to those
errors in fact not appearing from the record or evidence, etc.,
such as the infancy, coverture, etc., of some of the parties who have
not properly appeared (Hasson v. Mills, 8 How. 377; Adsit v.
Wilson, 7 How. 64; Bigelow v. Sunders, 22 Barb. 147); and to cases
where parties, witnesses and jurors have misconducted themselves to
the prejudice of the party against whom the judgment was recov-
ered. (Zanner v. Marsh, 36 How. 140; 53 Barb. 438.) So if the
constable has falsely returned the summons as personally served upon
the defendant, and the justice proceeds with the case in the absence
Excusine Derattt. 441

 

Service of affidavits.

 

of ths defendant, and renders judgment against him, the want of
personal service may be assigned as error in fact, and, if it is estab-
lished upon the hearing, the judgment may be reversed. (/tch v.
Devlin, 15 Barb. 47; Waring v. McKinley, 62 Barb. 612. See
Wavel v. Wiles, 24 N. Y. 635; Carroll v. Goslin, 2 E. D. Smith,
376.)

SECTION IX.

Service or Arripavits Excustne Drravtt.

If the appeal is taken by the defendant who, though properly
served with the summons, failed to appear before the justice, either
upon the return of the summons, or at the time to which the trial
of the action was adjourned, he should prepare affidavits excusing
his default, and showing that manifest injustice has been done.
(See Code of Civil Pro. § 3064.) It has always been considered the
correct practice for the appellant to serve copies of such affidavits
upon the respondent or his attorney at least eight days before the
commencement of the term for which the cause is noticed, although
the statute does not in terms require that any service shall be made.

In some counties this is required by the rules of the Connty
Court. These affidavits may be met upon the hearing by counter
affidavits presented on behalf of the respondent. If it appears from
the affidavits, or otherwise, that manifest injustice has been done,
and that the appellant had a satisfactory excuse for his default
below, the appellate court may, in its discretion, set aside the judg-
ment appealed from, or stay proceedings thereunder, and by order
direct a new trial before the same justice or before another justice of
the same county, designated in the order, at such a time and place,
specified in the order, and upon such terms, as it deems proper.
(Code of Civil Pro. § 8064.)

As a general rule the court will not relieve against a default,
unless it is excused, and a good defense is clearly set forth and
sworn to; and if contradicted by the affidavit of the respondent
the plaintiff’s affidavit must be corroborated. (Jewell v. Heinzel, 6
Daly, 411. See Gottsberger v. Harned, 2 E. D. Smith, 128 ; Forster
v. Capewell, 1 Hilt. 47; Silkman v. Baiger, 4 E. D. Smith, 236 ;
Armstrong v. Craig, 18 Barb. 387.) A bare affidavit of merits is
not snfticient to show that injustice has been done. The facts must
449 New Trrats anp APPEALS.

 

Points and papers for the court.

 

be set forth from which the appellate court may reach that conclu-
sion. (Armstrong v. Craig, 18 Barb. 387.)

If, as a matter of fact, the defendant was never served with the
‘summons in the action, or if the service was so clearly defective as to
fall short of a legal service, the defendant may appeal from the jndg-
ment rendered in the action and obtain relief therefrom, without
showing affirmatively a valid defense, or that manifest injustice has
been done upon the merits of the action. In such cascit is sufficient
to show clearly that no summons was in fact served upon him.
(Waring v. McKinley, 62 Barb. 612.)

No general rule can be given as to what will -be deemed a satis-
factory excuse for a default. Each case must depend upon its own
circumstances; and what would be an insufficient excuse in one
case might with slightly varying cireumstances be deemed a sufli-
cient excuse in another. The appellant should present the facts in
the best light possible, and rely upon the exercise of a sound discre-
tion by the appellate court as to granting or withholding the relief
demanded.

SECTION X.
Ports anp Papers For THE Court.

Appeals in the County Court upon questions of law are heard
upon the original papers, or upon certified copies thereof, and it is
never necessary to furnish copies, written or printed, for the use of the
court. (Code of Civil Pro. § 3063.)

But each party should prepare a brief containing the points and
authorities upon which he intends to rely, in order that he may prop-
erly present his case ; and in some counties counsel are required to
furnish to the court and to the opposing counsel a copy of such
points and authorities at the commencement of theargument. This
rule has been adopted by the County Court of the counties of
Albany, Jefferson and Lewis, and is probably in force in other

counties.
New Tran in THE APPELLATE Court. 443

 

New trial in the appellate court.

 

ARTICLE IV.

HEARING AND DETERMINATION OF THE APPEAL.

SECTION I.
New Triau in tHE APPELLATE Court.

Where the appellant has demanded a new trial in the appellate
court, in a case where a new trial is a matter of right, and bas not
“made or accepted any offer of judgment by which the appeal is ter-
minated, the action is brought on for trial at a regular term of the
County Court, and there tried and determined as if the action had
originally been commenced therein. (Code of Civil Pro. § 3071.)
-The proceedings in court have all the characteristics of an ordinary
trial in a court of record and none of the features of an argument of
an appeal, with this exception, that the appellant may raise all ques-
tions in the appellate court which were properly raised in the court
below, save such as were raised to proceedings which took place on
the trial of the action, as fully as if the appeal had been taken on
questions of law only. (Stevens v. Benton, 39 How. 13; 2 Lans. 156 ;
Burton v. Wheeler & Wilson Manuf. Co.,5 Week. Dig. 384;
Maxon v. Reed, 8 Hun, 618.)

Thus the appellant may require the County Conrt to pass upon
questions raised in the Court below in relation to the regularity of
process, its service and return, in relation to the jurisdiction of the
justice, and whether the proper parties have been brought in, and
questions of that nature, and to determine them before proceeding
to the trial of the cause. (Id.) If the errors of the court below are
‘such as to call for a reversal of the judgment, a new trial in the
County Court is unnecessary.

Whether the sum total of accounts proved before the justice
exceeded his jurisdiction, depends upon the evidence given on the
trial in the court below; and as the evidence is not returned on an
appeal for a new trial, the question cannot be passed upon by the
appellate court. The error, if any exists, is one occurring on the
trial, and therefore is not within the rule laid down by the authori-
ties above cited. (See Crannell v. Comstock, 12 Hun, 293.)
ait New Triats anp Apprats.

 

New trial in the appellate court.

 

If a new trial has been demanded in a case where a new trial is
not a matter of right, the respondent may move, when the cause is
reached for trial, that it be transferred to the law calendar, and that
it be argued and determined upon the return. If it appears to the
court that the new trial has been improperly demanded, the motion
will be granted. (See ante, p. 436.) If the demand fora new trial is
based solely upon a counter-claim interposed in a case not authorized
by the Code, the appellate court may, upon the motion of the respon-
dent, strike ont the unauthorized pleading and direct that the cause
be argued upon the return. (Denniston v. Trimmer, 27 Hun, 393.)
But if the demand for a new trial is based upon a pleading setting
up a claim fictitious in amount, the court has no power to strike ont
‘pleading and deprive the appellant of a new trial. (Zhompson v.
Pine, 5 Hun, 647; Fuller v. Brierley, 36 How. 47. But see Hough-
ton v. Kenyon, 38 How. 107.) If it does not appear from the return
that any issue was joined in the. court below, there is no issue to try
in the County Court, and no new trial ean be had. (McCann v.
Sheeke, 5 Week. Dig. 420.) :

The County Court may order a reference of the issues by consent
of the parties, or without their consent, if the trial will require the
examination of a long account and wil] not require the decision of
difficult questions of law. (See Code of Civil Pro. 8$ 1011, 1013;
Hyland v. Loomis, 48 Barb. 126.)

Jf no motion is made disturbing the ordinary course of proced-
ure, and no questions are raised which terminate the appeal, the
parties, at the eall of the cause, proceed to trial. If the issue is one
of fact, a jury is impaneled, unless a jury trial is waived, the case is
opened by the party holding the affirmative, evidence is introduced,
and, unless a nonsuit is ordered, a verdict is rendered, and judgment
‘entered thereon as in aetions originally commenced in the County
Court. A motion for a new trial may be made on the minutes, and
may be grantcd in a proper case. (Beach v. Skillman, 12 Hun,
297; Kenner v. Morrison, 12 Hun, 204; Hinman v. Stillwell, 34
Hun, 178.) But the court cannot nonsuit the plaintiff and order
exceptions to be heard in the first instance at the General Term of
the Supreme Court, and in the meantime stay all proceedings.
(Johnson v. New York, etc., R. BR. Co., 30 Hun, 166.)

If the issues are tricd by a referee or by the court without a jury,
counsel should prepare and submit findings at the close of the case,
and the court or referee should render a decision or make a report
APPEAL UPON QuEsTIons or Law. 445

 

Proceedings on the hearing.

 

within the time limited, and on this decision or report the successful
party should enter judgment. A judgment entered upon the report
of a referee in an action brought into the County Court by appeal
is for all purposes a judgment of the County Court. (Cook v. Dar-
row, 22 Hun, 306.)

SECTION II.

Hearing on AN APPEAL UPON Questions or Law.

In the counties of Albany and Jefferson an appeal upon questions
of law can beé brought to a hearing only at a term of the County
Court at which no jury is in attendance. Except where such pro-
hibition is contained in some local rule, an appeal upon questions of
law may be heard either at a jury or at a law term of the court.

The order in which the business of the County Court will be
transacted, is in some counties regulated by rule, and in others is
determined as occasion demands. The control. of the calendar rests
wholly with the county judge, and is a matter of discretion. Where
no time is fixed for the argument of this class of appeals, counsel
should be ready to argue and submit the cause whenever it may be
called.

At the opening of the argument, each party should furnish to
the court the points and authorities upon which he intends to rely,
and should deliver another copy to the opposing counsel. The
appellant has the right to begin the argument, and should complete
it so far as to clearly and fully present the points upon which he
relies for a reversal of the judgment, or such other relief as may be
appropriate upon the facts and the law. The respondent has the
right to answer, and may not only attack the position taken by the
appellant, but may also present such new points in support of the
judgment as can be sustained by the facts returned. After the
respondent has completed his argument, the appellant is entitled to
be heard in reply. This closes the argument, and the court there-
upon either decides the case at once, or takes the papers and reserves
its decision.

Instead of an oral argument the parties may submit the case upon
written briefs, or one of the parties may argue the case orally, and
the other, by permission of the court, may submit his case upon a
written brief. But where this is permitted the party arguing the
446 New Triats anp APPEALS. |

 

Hearing upon questions of law.

 

case should always have an opportunity, before argument, to inspect
the brief of his adversary, in order that he may be prepared to meet
the points therein presented.

In the absence of any rule to the contrary, a party who has
noticed the appeal for argument may bring on the argument on his
notice, and, if the opposite party neglects to appear when the cause
is reached, may file proof of service of a notice of argument, and
have a judgment in his favor affirming or reversing the judgment in
the court below. Buta party who has not served a notice of argu-
ment is in no position to move the cause and take his opponent’s
default. (Matthews v. Arnold, 14 Hun, 376.)

If the justice who tried the cause below has for any reason
become unable to make a return, the appellate court first determines,
from the affidavits presented, or from the testimony of witnesses
called by the parties, what evidence was given, and what proceedings
were had in the court below, and what judgment was rendered
thereupon, and then proceeds to determine the appeal as if a return
had been duly made. (See Code of Civil Pro. § 3056.)

If an error in fact is alleged by the appellant, the court will proceed
to determine this matter upon the affidavits read by the parties, or, in
its discretion, upon the examination of witnesses, or in both methods,
(Id. § 3057.) If the appellant also claims that the judgment should
be reversed upon the merits, the County Court must also determine
this question upon an inspection of the return, after hearing the
argument of counsel as in other cases. (Cook v. Swift, 18 How.
454; 10 Abb. 212.)

If the appellant made default below, the court will hear the
affidavits presented by the appellant in excuse of his default, and in
proof that injustice has been done him, and also the affidavits of the
respondent in reply, and after hearing the arguments of counsel will
make such disposition of the case as justice requires. (See Code of
Civil Pro. § 3064.)

If both parties have appealed from the judgment rendered below,
both appeals must be heard together, and judgment and costs must
be given to the appellant showing himself in the right upon his
appeal. (Jones v. Owen, 5 Hun, 339; Glassner v. Wheaton, 2 E.
D. Smith, 352.)
Qursrions ReviEWweED. 447

 

Objections not taken below.

 

SECTION III.

Questions REviewEp on aN APPEAL TAKEN UPON QUESTIONS oF
Law.

Objections not taken below, and which, if there taken, might
have been obviated, cannot as a rule be successfully urged for the first
time on the argument of an appeal in the County Court. (Jencks
v. Smith, 1 N. Y. 90; Duffy.v. Thompson, 4 E. D. Smith, 178;
Hunt v. Hoboken Land Co., 1 Hilt. 161; Ruev. Perry, 41 How.
385 ; 63 Barb. 40; Smith v. (Hill, 22 Barb. 656; Cheney v. Beals,
47 Barb. 523 ; Pollock v. Hoag, 4 E. D. Smith, 473; Pearson v.
Fiske, 7 Abb. 419; Desmond v. Lice, 1 Hilt. 530.)

Thus, an objection that there isa variance between the plead-
ing and proofs (Luckey v. Hrantzkee, 1 E. D. Smith, 47; Avery v.
Leach, 9 Hun, 106. See Doughty v. Crozier, 9 Abb. 411); that
there is a misjoinder of causes of action ( Willard v. Bridge, 4 Barb.
361) ; that a question put toa witness was leading (Pollock v. Hoag,
4 KE. D. Smith, 473; Pearson v. Fiske,7 Abb. 419 ; 2 Hilt. 146); that
parol evidence was given of an instrument in writing (@elhaar v.
Zéoss, 1 Hilt. 117) ; that there isa misjoinder of parties defendant.
(Tibbits v. Percy, 24 Barb. 39); or that there is a non-joinder of
defendants (Avogadro v. Bull, 4K. D. Sinith, 384); or that there
is no formal proof of the issuing of letters to a plaintiff suing as
administrator (Donohue v. Henry, 4 E. D. Smith, 162); or that a
plaintiff suing as assignee has not proved an assignment (Austin v.
Burns, 16 Barb. 6438) ; or that plaintiffs suing as partners have failed
tu prove a partnership (Wdztlock v.. Bueno, 1 Hilt. 72), cannot
be raised for the first time on appeal.

But the objection that the court below had no jurisdiction may
be first taken on the argument of the appeal. ( Wéllins v. Wheeler,
17 How. 93; 8 Abb. 116; 28 Barb. 669 ; Beatéce v. Larkin, 2 E. D.
Smith, 244; Litch v. Devlin, 15 Barb. 47; Tiffany v. Gilbert, 4
Barb. 320.)

If parties go to trial upon a complaint without objection as to its
form or sufliciency, and the plaintiff proves a good cause of action, a
judgment in his favor will not be disturbed by the appellate court on
account of any defects in his pleading. (See Hall v. McKechnie, 22
443 New Triats anp APPEALS.

 

Provisional remedies—Questions of fact.

Barb. 244; Wef’ v. Clute, 12 Barb. 466; Copley v. Rose,2N. Y.
115; Mayor v. Green, 1 Hilt. 393.) But if the facts alleged do not
constitute a cause of action, and the proof merely establishes those
facts, the defendant will waive no right to take the proper objection
on appeal by taking issne below instead of demurring. (Ziff¢ v.
Tifft, 4 Denio, 175 ; Stephenson v. Hall, 14 Barb. 222, 229.) And
if the attention of the plaintiff is called to the fact that his com-
plaint does not state a cause of action, and he declines to avail him-
self of leave to amend, an appellate court will reverse a judgment
in his favor instead of conforming the pleading to the proof. (/lowe
Sewing Mach. Co. v. Haupt, 7 Daly, 198.)

 

Provisional remedies.—The judgment of a justice of the peace
may be reversed upon appeal for any error in the proceedings befare
him affecting the substantial rights of the appellant. If an attach-
ment has been issued upon an insufficient affidavit, an error of law
affecting a substantial right of the defendant is presented for which
the judgment must be reversed. (Fritze v. Pultz, 2 Civ. Pro. R.
142.) Upon the same principle the County Court may review the
issuing of an order of arrest to accompany the summons, or a
requisition to replevy the property of the defendant, and, if the facts
stated in the plaintiff’s affidavits do not authorize the remedy granted,
the judgment recovered by the plaintiff may be reversed.

Questions of fact determined by the justice or by a jury from
testimony submitted on both sides will not be reviewed in the
County Court. (Burnham v. Butler, 31 N. Y. 480; Smith v. Hill,
29 Barb. 656; Woyes v. Hewitt, 18 Wend. 141; Stryker v. Bergen,
15 Wend. 490; Justison v. Crawford, 25 How. 465; Kasson v.
Mills, 8 How. 877; Adsit v. Wilson, 7 How. 64; McDonald v.
Edgerton, 5 Barb. 560.) The County Court has undoubted authority
to look into the evidence to see if it supports the judgment, and to
reverse if it is wholly unsupported by evidence, whether the defend-
ant was present at the trial or not; and it not only may, but should
reverse the judgment, if there is no conflict of evidence, and the
judgment is contrary to clear, undisputed, and unimpeached testi-
mony. (Bort v. Smith, 5 Barb, 283; Woley v. Slater, 22 Barb.
506; Moore v. Noble, 53 Barb. 425 5 36 How. 385; Hvereit v.
Parks, 62 Barb. 9; Alburtis v. McCready, 2 E. D. Sinith, 39;
Hunt v. Westervelt, 4 E. D. Smith, 225 ; Howard v. Brown, 2 i.
Questions REvIEWED. 449

 

Facts assumed to exist—Amendment of pleadings.

D. Smith, 247; Fox v. Decker, 3 E. D. Smith, 150; Buckley v.
Leonard, 4 Denio, 500; Robertson v. Ketchum, 11 Barb. 652; Fish
v. Skut, 21 Barb. 333; Marselis v. Seaman, 21 Barb. 319; Watts
vy. Cleaveland, 3 E. D. Smith, 558; McCarthy v. Ely, 4 KE. D.
Smith, 375; Goldsmith v. Obermier, 3 E. D. Smith, 121; Jones v.
Pridham, 3 E. D. Smith, 155; Hly v. O Leary, 2 E. D. Smith, 355 ;
Storp v. Harbutt, 4 E. D. Smith, 464; Baker v. Bonesteel, 2 Hilt.
397; Newton v. Pope, 1 Cow. 109; Jacks v. Darrin, 3 E. D. Smith,
559; Dresser v. Van Pelt, 1 Hilt. 316; Westbrook v. Douglass, 21
Barb. 602.) But it has no authority to reverse the judgment because
it is against the weight of evidence. (Wiley v. Slater, 22 Barb. 506 ;
Bennett v. Scutt, 18 Barb. 347; Adsit v. Wilson, 7 How. 64; Bige-
low v. Sanders, 22 Barb. 147; Baum v. Tarpenny, 3 Hill, 75 ;
Decker v. Myers, 31 How. 372; McDonald v. Edgerton, 5 Barb.
560; Rogers v. Ackerman, 22 Barb. 1384; Parker v. Eaton, 25
Barb. 122. See Alford v. Stevens, 63 Barb. 29.)

 

Facts assumed to exist.—A fact assumed to exist upon the trial
below, will be assumed to exist on appeal. (Smith v. ill, 22 Barb.
656; Shaw v. Davis, 55 Barb. 389; Austin v. Burns, 16 Barb.
643; Paige v. Fazackerly, 36 Barb. 392; Holbrook v. Wright, 24
Wend. 169; Lee v. Schmidt, 1 Hilt. 537; 6 Abb. 183; Jencks v.
Smith, 1 N. Y. 90.)

And where no objection is raised on the trial before the justice
that there is not sufficient evidence to sustain the plaintifi’s case, and
it is assumed on the trial that the proof is complete, it will beso held
on appeal. (Smith v. Hill, 22 Barb. 656 ; Cheney v. Beats, 47 Barb.
523.)

Matters resting in the discretion of the court below
will not be reviewed on appeal, except in a clear case of abuse.
(Bush v. Weeks, 24 Hun, 545; Weed v. Lee, 50 Barb. 354; Sherar
v. Willis, 5 Lans. 329; Lrroy v. Nathan, 4 E. D. Smnith, 68 ; DZct-
chell v. Menkle, 1 Hilt. 142; Harpell v. Curtis, 1 E. D. Smith, 78.)

Amendment of pleadings.—A denial of a motion to amend a
pleading in a case where substantial justice would be promoted by
the amendment is an error for which the appellate court may reverse
the judgment below. The granting or denial of the motion in such

case is not a mere matter of discretion within the rule prohibiting a
29
450 New Triats anp APPEALS.

 

Principles governing the decision.

review of discretionary orders. (Wood v. Shultis, 4 Hun, 309;
Walsh v. Cornett, 17 Hun, 27.) But the court will not review an
amendment granted on motion of the appellant. (Orser v. Grossman,
4 E. D. Smith, 443 ; 11 How. 520.)

SECTION IV.
PeincipLes GoveRNInG THE Ducision of THE APPEAL.

The Code provides that the appellate court must render judgment
according to the justice of the case without regard to technical
errors or defects which do not affect the merits, and that it may
affirm or reverse the judgment of the justice ia whole or in part,
and as to any or all of the parties, and for errors of law or of fact.
(Code of Civil Pro. § 3063.)

It has been the uniform practice of the courts in reviewing the
proceedings had before justices of the peace, to regard them with
marked indulgence and liberality in the furtherance of the ends of
justice, and if possible to sustain them by every reasonable and war-
rantable intendment. (Schoonmaker v. Spencer, 54 N. Y. 366.)

Under the former system of reviewing judgments of a justice by
certiorari, presumptions were often invoked in support of the judg-
ment, and it was held that where it-appeared that the justice had
jurisdiction of the parties and the subject matter, a court sitting in
review of the judgment would intend that the proceedings were reg-
ular until the contrary appeared (Baum v. Zarpenny, 3 Hill, 75;
Stafford v. Williams, 4 Denio, 182; Oakley v. Van Horn, 21 Wend.
805 ; Warring v. Loomis, 4 Barb. 484) ; ; and that to justify a rever-
sal it must appear affirmatively that the justice erred. (/uller v.
Wilcox, 19 Wend. 351; Clements v. Benjamine, 12 Johns. 290.)

Thus it was held that unless the return stated to the contrary, it
would be presumed that the justice waited an hour from the time
tixed for the appearance of the parties, before proceeding with the
case (Stafford v. Williams, 4 Denio, 182); and that, in the absence
of a certificate that all the evidence was returned, it would be pre-
sumed that other and sufficient evidence was given to support the
judgment (Prosser v. Secor, 5 Barb. 607; Low v. Payne, 4 N.Y.
247); and that even where no evidence was returned the court would
presume that the judgment was founded on legal evidence. ( Wilson
vy. Fenner, 3 Johns. 439.) The decisions under the statute regulating
Privciptes GovERNING THE DEcISION. 451

 

Admission or rejection of evidence.

 

a review by certiorari are not to be implicitly followed at the present
day. That statute did not require all the testimony to beset out in the
return. The party seeking the review made an affidavit setting forth
the substance of the testimony and proceedings before the justice
and the grounds upon which an allegation of error was founded, and
the return was required truly and fully to answer all the facts set
forth in the affidavit. This might not call for a return of all the
evidence or all the proceedings below; acd the courts sitting in
review properly declined to reverse the judgment on the ground of
the omission of matter upon which the return might properly be
silent, and presumed that the necessary evidence was given or the
proper proceedings were taken. Under the Code, however, all the
evidence and proceedings are to be returned ; and a return setting
forth the names of witnesses and setting out testimony in detail, will
be construed on appeal as stating the whole of the evidence unless
the contrary distinctly appears. (Orcutt v. Cahil, 24 N. Y. 573;
Hance v. Cayuga, etc., R. R. Co., 26 N. Y. 428.) Upon the same
theory it should be assumed that a return purporting to set forth the
proceedings before the justice, states all the proceedings unless the
contrary distinctly appears.

If the judgment appealed from is in favor of the plaintiff, and
there is no evidence to support the judgment, the appellate court
will reverse, whether the defendant appeared on the trial or not.
(See ante, p. 448.) Ifa cause of action has been proven, but not the
cause of action set forth in the pleadings, and no objection to the
variance was taken below, or if no injustice has been done, the judg-
ment will be affirmed. (See Luckey v. Frantzkee, 1 E. D. Smith,
47; Briggs v. Evans, 1 E. D. Smith, 192; Doughty v. Crozier, 9
Abb, 411; ante, p. 447.)

Although an error may have been committed below in the
admission of evidence, the court will not on that account reverse
the judgment if it is satisfied that on the whole the judgment
is right. (Crook v. Harper, 8 Daly, 53; Wells v. Cone, 55 Barb.
585.) Thus, where incompetent evidence of a fact has been
admitted under objection, but the fact has been so conclusively
proved by other competent evidence that not to find it would be
error, a judgment in accordance with the proofs will not be reversed.
(Bort v. Smith, 5 Barb. 283; Spencer v. Saratoga & Washington
dt. P. Co.,12 Barb. 382; Buck v. Waterbury, 12 Barb. 116.) In
reviewing proceedings of justices’ courts great liberality is to be
459 New Triats anp Arprats.

 

Principles governing the decision,

 

exercised, and a judgment is not to be reversed for a trivial error
which does not affect the merits. (Martin v. Houghton, 31 How. 82;
45 Barb. 258.) But unless it-clearly appears that the party objecting
has not been prejudiced by the admission of illegal evidence, the court
must reverse the judgment. (Main v. Eagle, 1 E. D. Smith, 619.)
If the illegal evidence tends directly to establish the plain tiff’s case,
its sduission | is not a mere technical error but affects the merits, and
the appellate court cannot disregard it although the issue might have
been determined the same way upon the othertestimony. (Zahn v.
Van Doren, 1 E. D. Smith, 411; Decker v. Myers, 31 How. 372 ;
and see Belden v. Nicolay, 4 E. D. Smith, 14.)

The exclusion of proper, competent and material evidence is a
ground for reversal (2aymond v. Richardson, 4 EK. D. Smith, 471),
even though the court may be of the opinion that. its exclusion did
not affect the verdict, if the court can see that the evidence, had it
been received, might have influenced the minds of the jury in favor
of the appellant. (McAlister v. Sewton, 4 E. D. Smith, 41.)

Where it is plain to be seen that the damages awarded are grossly
excessive, the court may reverse the judgment below (Althause v.
Rice, 4 E. D. Smith, 347. But see Cropsey v. Murphy, 1 Hilt. 126),
or, with the assent of the plaintiff, may allow the judgment to stand
Sor such sum a3 appears just, and reverse it for the excess. (Za
Motte v. Archer, 4 KE. D. Smith, 46.) Where the judgment below
exceeds the demand of the complaint, it should be reversed unless
the plaintiff consents to remit the excess, and in case of such con-
sent, the judgment should be so modified as to conform to the plead-
ings, and, as modified, should be permitted to stand. Weed v. Lee,
50 Barb. 354; Brownell v. Winnie, 29 N. Y. 400.)

The County Court may properly refuse to reverse a judgment
for the defendant, where the plaintiff is entitled to recover nominal
damages only, and the object of the action is merely to vex the
defendant and to subject him to costs. (Stephens v. Wider, 32 N.
Y. 351; Zerry v. Dudley, 11 Reporter, 306. See also Cady v.
Fairchild, 18 Johns. 129.) But where a principle, or a right, or its
extent, is involved, the court may reverse an erroneous judgment for
the defendant although he is entitled to nominal damages only, and
the suit is vexatious. (Herrick v. Stover, 5 Wend. 580, 586; Hyatt
v. Wood, 3 Johns. 239; Diwon v. Clow, 24 Wend. 188; Searles v.
Cronk, 88 How. 820.) And where an erroneous judgment has been
rendered in favor of the plaintiff in a vexatious and groundless
co

Entry or JUDGMENT. 45

 

Entry of judgment.

 

action, the fact that the recovery was for nominal damages only is
no reason why the judgment should be affirmed. (Countryman v.
Lighthill, 24 Hun, 405; Porter v. Cobb, 22 Hun, 278.)

If the appellate court determines that the appeal was not based
upon sufficient grounds, it can only affirm the judgment, although it
is satisfied that the judgment should have been for a greater sum.
(Glassner v. Wheaton, 2 E. D. Smith, 352.) And it has been held,
that where a plaintiff has appealed from a judgment in his favor,
which, by an error of the justice, had been entered for too small a
sum, the appellate court has no power to correct the mistake, and can
only reverse the judgment. (Hardy v. Seelye, 3 Abb. 103; 1 Hilt.
90. See also, Bunker v. Latson, 1 E. D. Smith, 410 ; Edwards v.
Drew, 2 KE. D. Smith, 55.)

It is a well settled rule, that where the judgment rendered by
the justice is for ditferent claims, or is for distinct items or articles
of personal property, separable in their nature, and capable of being
separated on the record, both as to identity and value, the County
Court may reverse in part and affirm as to the residue. (Staats v.
Hudson 2. R. Co., 39 Barb. 298; Decker v. Hassell, 26 How. 528 ;
Fields v. Moul, 15 Abb. 6; Weed v. Lee, 50 Barb. 354; Brownell
v. Winnie, 29 N. Y. 400; Shaw v. Davis, 55 Barb. 389.) But the
County Court cannot reverse in part where the damages are entire.
(Aasson v. Mills, 8 How. 377.)

If upon the appeal a sum of money is awarded to one party, and
costs are awarded to the adverse party, the appellate court must set
off the one against the other, and render judgment for the balance.
(Code of Civil Pro. § 3059.)

SECTION V.
Entry oF JUDGMENT.

Where a new trial is not had in the appellate court, it is the
usual practice for the county judge to draw a brief order determin-
ing the appeal, and directing the entry of judgment in accordance
therewith. The attorney for the successful party thereupon enters
the appropriate judgment.

In case of an affirmance, the judgment will be simply for an
affirmance of the judgment of the court below, and for the costs of
the appeal. (See Onderdonk v. Emmons, 2 Hilt. 504.) In case of
454 New Trrats ann ApprALs.

 

Restitution upon reversal.

 

a reversal, the judgment will be fora reversal and for the costs of
the appeal, and, in a proper case, will direct restitution. Ifa new
trial has been had in the appellate court, the attorney for the suc-
cessful party will proceed to enter judgment in the same manner
that he would enter a judgment in an action originally commenced
in the County Court.

The clerk immediately after entering judgment upon the deter-
mination of an appeal, is required to attach together and file such of
the following papers as were used upon the appeal, which constitute
the judgment-roll :

1. The return of the justice, or a certified copy thereof; the
notice of appeal ; and the undertaking, if any has been given.

2. The verdict, report or decision, and each offer made by the
parties under any provision of the Code authorizing an offer to
compromise ‘where a new trial is demanded in the appellate court.

3. A certified copy of the judgment, together with each notice
of exceptions, or case, which is then on file.

4. Every other paper then on file, and a certified copy of every
order which in any way involves the merits, or necessarily affects
the judgment. (Code of Civil Pro. § 3061.)

SECTION VI.
Restirution upon ReversaL.

Where the judgment of the justice is reversed or modified, the
appellate court may make or compel restitution of the property, or
of a right lost by means of the erroneous judgment, but not so as to
affect the title of a purchaser, in good faith and for value, of prop-
erty sold by virtue of a warrant of attachment in the action, or an
execution issued upon the judgment. In that case, the appellate
court may compel the value or the purchase price to be restored, or
deposited to abide the event of the action, as justice requires. Six
days’ notice of an application for an order of restitution must be
given ; and, if the application is granted before judgment, the proper
direction may be included therein. (Code of Civil Pro. § 3058.
See ante, p. 191.)
CHAPTER VIII.

APPEAL TO THE COMMON PLEAS FROM A JUDGMENT
OF A DISTRICT COURT OF THE CITY OF
NEW YORK.

ARTICLE I.

JURISDICTION AND GENERAL PRACTICE.

SECTION I.
Nature anp Scorz of THE APPEAL.

Aw appeal from a judgment rendered in a District Court of the
city of New York, may be taken to the Court of Common Pleas for
the city and county of New York ina case where an appeal, other
than for a new trial in the appellate court, might be taken toa
County Court from a judgment rendered by a justice of the peace.
(Code of Civil Pro. § 3213.) No new trial in the Court of Common
Pleas can be had on an appeal from a judgment of a district court
(Gardner v. Smith, 2 Civ. Pro. R. 420); and the scope and nature
of the appeal is substantially the same as that provided by the Code
for the review of a judgment rendered by a justice of the peace,
where a new trial is not demanded in the appellate court.

An appeal may be taken from a judgment of a District Court,
although the defendant did not appear. (Hurry v. Coffin, 2 Civ.
Pro. R. 319; Puliz v. Diossy, 53 How. 270.) On an appeal from
the judgment of the District Court, all the proceedings before the
justice are brought up, and may be reviewed, including an order
granting or refusing to vacate an attachment issued in the action.
(Lang v. Marks, 3 Civ. Pro. R. 287; 65 How. 127. See Fritze v.
Puliz, 2 Civ. Prose R. 142.)

A summary proceeding to recover the possession of lands, may
456 New Trias anp APPEALS.

 

Mode of taking and perfecting the appeal.

 

be instituted before a justice of a District Court of the district in
which the lands are situated (Code of Civil Pro. § 2284), and an
appeal from a final order made in a proceeding so instituted, may be
taken to the Court of Common Pleas within the same time, and in
the same manner, as if the order appealed from was a judgment
rendered in the District Court. (Id. § 2260.)

SECTION IL

Move or Taxninc AND PERFECTING THE APPEAL.

An appeal from a judgment of a District Court is taken in the
manner prescribed by the Code.for an appeal from the judgment
rendered by a justice of the peace where a new trial in the appellate
court is not demanded. (Code of Civil Pro. § 8213.) A notice of
appeal must be served upon the justice and upon the respondent in
the manner prescribed by sections 3047 and 3048 of the Code (see
(ante, p. 421), and within the time limited by section 3046 of that act.
(See ante, p.419.) This time commences to run from the date of the
actual entry of judgment if the appellant appeared below or the sum-
mons was personally served upon him. (See Fuchs v. Pohlman, 2 Daly,
210.) If the notice of appeal is seasonably served upon the justice,
but through mistake, inadvertence or excusable neglect is not served
upon the respondent within the time limited, the Common Pleas
may permit the omission to be supplied upon a proper application.
(See Code of Civil Pro. § 3049; Zinsser v. Seiler, 7 Daly, 464.) At
the time of serving the notice of appeal upon the justice, the appel-
lant must pay the costs included in the judgment and the fee for
making the return as required by section 3047 of the Code. No
undertaking or deposit is required to perfect the appeal. (Strwve v.
Droge, 62 How. 258.) But if the appellant desires a stay of execu-
tion he must give the undertaking required by section 3050 of the
Code, deliver it to the justice or his clerk (Code of Civil Pro. §
3051), or file it with the clerk of the Court of Common Pleas if
delivery to the justice or his clerk is impracticable (Id. § 3052), and
serve a copy of the undertaking, and a notice of its delivery or filing
upon the respondent with the notice of appeal. (Id. § 3050.)

If the execution has been issued, a copy of the undertaking, with
the certificate or affidavit prescribed by section 3051 or 3052 of the
Return on APPEAL. 457

 

Return on appeal,

 

Code should be served upon the officer holding the execution. (See
ante, p. 425.)

SECTION III.
Return on AppEAt.

After ten days and within thirty days from the service of the
notice of appeal and the payment of the costs included in the judg-
ment and the fee for making a return, the justice must make a return
to the appellate court, annex thereto the notice of appeal and the
undertaking, if any has been delivered to him or his clerk, and file
the same with the clerk of the appellate court. The return must
contain all the proceedings, including the evidence and the judgment.
(Code of Civil Pro. § 83053; Gardner v. Smith, 2 Civ. Pro. R. 420;
Mclihenny v. Wasson, 1 Daly, 285.) Ifa transcript of the steno-
grapher’s minutes of the testimony given on the trial becomes a nec-
essary part of the justice’s return, the stenographer’s fees for making
a transcript, computed at the rate of ten cents for every one hundred
words, must be paid in the first instance by the appellant, and may
afterward be taxed by him as a disbursement on the appeal. (Laws
of 1882, vol. 2, chap. 410, § 1439. See Smith v. Ostrander, 4 Law
Bull. 88.)

If the appellant does not procure the return to be made within
the time prescribed by the Code, the respondent may serve a notice
in writing requiring it to be done within ten days thereafter, and
that in default thereof he will apply to the Special Term of the
Common Pleas for an order dismissing the appeal. Upon proof of
the service of such notice, and of a non-compliance therewith, such
an order will be granted, unless the court grant further time for the
tiling of the return. (Rule 6,Com. Pl.) Ifthe court below does
not make the return to the Common Pleas as prescribed by the Code,
the appellant may apply by motion to a judge at chambers to com-
pel such return by attachment. (Rule 7, Com. PI.)

The provisions of the Code as to determining the appeal upon
affidavits or the testimony of witnesses where the justice is for any
reason unable to make the return, applies to appeals from District
Courts. (See Code of Civil Pro. § 3056.) Rule 9 of the Court
of Common Pleas provides as follows :

“Where the return of the justice of the District Court, from
458 New Triars ann Aperats.

 

Return on appeal,

whose judgment the appeal is taken to this court, has been lost and
the said justice is dead.

Ordered, That the appeal be marked off for the term, and in
conformity with the 863d section of the Oode, that the attorney for
the appellant prepare a case containing a statement under oath of the
evidence taken, and of the proceedings had upon the trial before the
justice, from such information as he can obtain, and that he serve a
copy of the said case, so made as aforesaid, upon the attorney for the
respondent, with a notice of motion of at least four days, to be made
at Special Term of this court, that said case so prepared as aforesaid
be filed in the office of the clerk of this court in the place of the
return of the said deceased justice ; or if lost as aforesaid, said case to
be made and said notice of motion to be served within ten days from
the entry of the order, and on the return of said motion the respon-
dent may appear at the Special Term and present an affidavit contro-
verting any of the facts in said statement.

The case and affidavits shall thereupon be filed in the office of the
clerk of this court, when the appeal shall be placed on the calendar
of the date of filing the same, and, upon the hearing of the appeal,
either of the parties may examine witnesses before the appellate
court, in respect to any matter in said statement that may have been
contradicted, and, after hearing said witnesses, the appellate court
will find the question of fact in controversy, and its findings shall be
incorporated with and become a part of the case or statement upon
which the appeal is to be heard. All matter contained in the state-
ment and verified by the moving party which shall not be specifically
controverted by the affidavit of the other party shall be deemed set-
tled, and as of the same effect as if the same had been returned by
the justice in his lifetime.”

The rules of the Common Pleas also require that the pages of
evidence forming part of the return shall be correctly numbered at
the bottom of each page, and the appeal will be dismissed if this
is not done.
Nonicz or ARGUMEST AXD Note or Issce. 459

 

WeAice of argument and note of issue.

SECTION IV.
Srrpciation vor A PeversaL.

Within twenty days of the service on him of the notice of appeal,
the respondent may serve upon the appellant or his attorney a writ-
ten stipulation that the jndgment appealed from may be reversed
with five dollars costs and the disbursements of the appeal, and
thereafter no further steps can be taken in such appeal except to
enter judgment in pursuance of such stipulation for the enforcement
thereof. (Code of Civil Pro. $ 2062.) This provision uf the Code
applies to appeals from District Courts, as the manner of taking the
appeal is the same as that prescribed for appeals upon the law from
judgments of justices of the peace (Id. § 3213), and the manner of
taking the appeal includes the manner of disposing of it when there
is no other provision as to how the appeal shall be determined.
(Clark v. Carroll, 61 How. 47.)

SECTION VY.
Noricz oy Apecumentr asp Nore or Issve.

In case a stipulation for a reversal is not served as stated in the
preceding section, the appeal may be brought to a hearing in the
appellate court at any term thereof at which such an appeal can be
heard, held after the return is filed, upon a notice by either party of
not less than eight days. It must be placed upon the calendar and
must continue thereupon without further notice until it is finally
disposed of. If, after being regularly placed upon the calendar,
neither party brings it to a hearing before the end of the second
term thereafter at which it might be noticed fora hearing and heard,
the court must dismiss the appeal unless it directs the same to be
continued for cause shown. (Code of Civil Pro. § 3062.)

No case will be put on the calendar unless the return has been
filed at least eight days before the first day oftheterm. The causes
will be put upon the calendar in the order in which the returns have
been filed. (See Rule 2, Com. PI.)
460 New Triats anp APPEALS.

 

The argument.

 

In order to put the cause on the calendar a note of issue must
be filed for each term at least eight days before the first day of the
term. This must contain the title in full, the nature of the appeal,
the date of issue, with the attorney’s name, and must state from
what district the appeal is taken, and, if the return has been filed,
must give the date of filing thereof.

It is possible that where the cause is once placed on the calendar
no new note of issue is required to place it upon any subsequent
calendar. (See Matthews v. Arnold, 14 Hun, 376.) A notice of
argument should be served at least eight days before the commence-
ment of the term, and if the cause is not- disposed of at that term it
will be safe practice to serve a new notice of argument for any sub-
sequent term, even if it is not strictly necessary. (Compare Zown-
send v. Keenan, 2 Hilt. 544, and Matthews v. Arnold, 14 Hun,
376.)

SECTION VI.
Points.

Although not required by any statute or rule of court, it is advis-
able for each party to prepare points as in other cases, with refer-
ences to the authorities upon which he relies. (See De Agreda v.
Faulberg, 3 E. D. Smith, 179, 180; Suydam v. Munson, 2 E. D.
Smith, 198.) It is not necessary that these should be printed as in
other cases. (See Rule 5, Com. Pl.)

SECTION VII.
Tue ARGUMENT.

The calendar will be called through on the first Monday of the
term, and appeals other than from the City Court or a District Court,
may then be set down for argument for any day in the first and
second weeks of theterm. But an appeal from a District Court must
be ready for argument when reached in its order upon the calendar,
and will not be set down for any particular day. (Rule 3, Com. Pl.)
Engagement of counsel elsewhere will not be a sufficient reason for
postponing the hearing. (Zryon v. Jennings, 22 How. 421; 12
Abb. 33.)

Unless the court otherwise directs, the parties will be confined on
JupG@MENT oN APPEAL. 461

 

Judgment on appeal.

 

the argument to a brief statement of the facts and points involved,
and authorities relied on. If the appellant seeks a restitution of
moneys collected by execution issued on the judgment appealed
from, he should apply therefor on the argument, or if he omits to do
so should apply for a re-argument on that point. (Cushing v. Van-
derbilt, 7 Daly, 512. See Code of Civil Pro. § 3058.)

SECTION VI.
JUDGMENT ON APPEAL.

Upon an appeal taken to the Court of Common Pleas from a
judgment of a District Court of the city of New York, the appellate
court may reverse, affirm or modify the judgment appealed from,
and when the judgment is reversed, may order a new trial in the
District Court. (Code of Civil Pro. § 3213.) Where the judgment
is modified, or where a new trial is ordered, costs are in the discre-
tion of the appellate court. (Id.)
CHAPTER IX.

APPEALS FROM THE CITY COURT OF YONKERS.

ARTICLE I.

SPECIAL STATUTORY PROVISIONS.

SECTION I.
- To wHat Courr THE APPEAL Must BE TAKEN.

Apprats from the judgments and orders rendered, entered or
granted in the City Court of Yonkers, or by the city judge of Yon-
kers, may be taken as follows:

1. From judgments in actions wherea recovery of less than one
hundred dollars was demanded in the complaint, and from orders
made in such actions in the City Court of Yonkers, or by the city
judge of Yonkers, of the effect described in the subdivisions of sec-
tion thirteen hundred and forty-seven of the Code of Civil Proced-
ure, the appeal shall be to the County Court of Westchester county.
From judgments in actions where a recovery of one hundred dollars
or more was demanded in the complaint, and from orders made in
such actions in the City Court of Yonkers, or by the city judge of
Yonkers, of the effect described in the subdivisions of section thir-
teen hundred and forty-seven of the Code of Civil Procedure, and
from an order affecting a substantial right made in a special proceed-
ing by the said City Court or said city judge, appeals may be taken
to the General Term of the Supreme Court in the judicial depart-
ment in which the city of Yonkers is situated. From final orders
by the city judge in summary proceedings, the appeal shall be to the
County Court of Westchester county. (Chap. 186, § 56, Laws of
1878, as amended by chap. 437, § 12, Laws of 1881.)
APPEALABLE ORDERS. 463

 

Appealable orders.

 

SECTION II.
APPEALABLE ORDERS.

An order made in an action pending in the City Court of Yon-
kers, whether made by the court or by the city judge, is appealable
to one of the courts specified in the preceding section in either of
the following cases:

1. Where the order grants, refuses, continues or modifies a pro-
visional remedy.

2. Where it grants or refuses a new trial; except that where
specific questions of fact arising upon the issues in an action triable
by the court have been tried by a jury pursuant to an order for that
purpose, as prescribed in section 971 of the Code of Civil Procedure,
an appeal cannot be taken from an order granting or refusing a new
trial upon the merits.

3. Where it involves some part of the merits.

4, Where it affects a substantial right.

5. Where in effect it determines the action and prevents a judg-
ment from which an appeal might be taken.

6. Where it determines a statutory provision of the State to be
unconstitutional, and the determination appears from the reasons
given for the decision thereupon, or is necessarily implied in the
decision. (See Code of Civil Pro. § 1347.)

An order made upon a summary application after judgment is
deemed to have been made in the action within the meaning of the
section cited. (Id.)

Whether the appeal is to be taken to the County Court of West-
chester county or to the General Term of the Supreme Court
depends upon the amount of the recovery demanded in the com-
plaint. (Ante, p. 462.)

The statute authorizes an appeal from an order made by the City
Court or by the city judge in a special proceeding if the order affects
a substantial right; and from final orders made by the city judge in
a summary proceeding. (See ante, p. 462.) The construction by
the courts of the term “substantial right” has been noticed else-
where. (See ante, p. 215.)
464 New Triars anp Apprats.

 

Mode of taking and perfecting the appeal.

 

SECTION III.
Mone or Taxing anp Perrecrina THE APPEAL.

The statute regulating appeals from this court further provides as
follows :

“ All appeals provided for in this section must be taken by serving
upon the attorney for the adverse party, and on the clerk of the
City Court of Yonkers, by filing in his office, a written notice to
the effect that the appellant appeals from the judgment, or order,
or from a specified part thereof; no security or undertaking shall
be required to perfect an appeal from an order.

To perfect an appeal in other cases except as specified in sections
thirteen hundred and thirteen and thirteen hundred and fourteen of
the Code of Civil Procedure, 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 which may be awarded
against him. Such undertaking shall be of no effect unless acknowl-
edged and accompanied by the affidavit of the sureties that they are
worth at least the sum of two hundred and fifty dollars, and a copy
thereof served on the respondent and the original filed with the
clerk ; and the respondent may, within ten days, except to the sufii-
ciency of the sureties, and, unless they or other sureties justify ona
notice of not less than five days before the city judge as prescribed
in sections five hundred and eighty and five hundred and eighty-one
of the Code of Civil Procedure.” (Laws of 1878, chap. 186, § 56.)

The cases in which no security is necessary to perfect an appeal
from a judgmeat of the City Court are where the appeal is taken by
the people of the State, or by a State officer, or board of State officers
(Code of Civil Pro. § 1318), or by a domestic municipal corporation.
(Id. § 1814.) For the procedure upon the justification of sureties
under sections 580 and 581 of the Code, see ante, p. 100.
Stayinc Procrepines on THE APPEAL. 465

 

Transmitting papers to the appellate court, .

 

SECTION IV.
TIME WITHIN WHICH THE APPEAL MUST BE TAKEN.

All appeals taken under the act in relation to the City Court of '
Yonkers, if to the County Court of Westchester county, must be
taken within thirty days after notice in writing of the entry of the
order or judgment appealed from. All appeals to the Supreme
Court must be taken within sixty days after notice in writing of the
entry of the judgment or order appealed from. All appeals to the
Court of Appeals must be taken within the time specified in section
1325 of the Code of Civil Procedure. (Laws of 1878, chap. 186,
§ 56.)

For the general discussion of the limitation of the time to appeal,
see ante, p. 53.

SECTION V.
Transmission oF Papers 10 TEE APPELLATE Court.

The statute further provides, that “upon an appeal authorized
by this section being taken and perfected, the clerk of the City
Court of Yonkers shall, at the expense of the appellant, forthwith
certify and file with the clerk of the appellate court, a copy of
the notice of appeal, judgment-roll and case, if any, made and sct-
tled (which case must be made and settled as cases on appeal are
made and settled in the Supreme Court); or if the appeal be from
an order, a copy of the notice of appeal, order appealed from, and
of the papers upon which the order was granted.” (Laws of 1878,
chap. 186, § 56.) For the practice on making and settling a case on
appeal, see ante, p. 139.

SECTION VI.
Srayina Procrepines on THe APPEAL.

The section regulating appeals from the City Court of Yonkers
further provides, that “proceedings upon the judgment appealed
from shall no case be stayed, except by giving the undertaking
466 New Trrats anp APPEALS.

Subsequent appeals.

required by this act, and also such further security as is required by
law to stay the proceedings on appeal to the Supreme Court from an
inferior court. Proceedings upon an order appealed from shall only
be stayed by order of the City Court of Yonkers, or the city judge,
on such terms as shall be just, or as otherwise provided in the Code
of Civil Procedure.” (Laws of 1878, chap. 186, § 56, as amended
by Laws of 1881, chap. 437, §13.) For the security required by the
act cited, see ante, p. 464. For the security required to stay pro-

ceedings on appeal to the Supreme Court from an inferior court, see
ante, p. 361.

SECTION VII.
Hearing AND JUDGMENT.

The appeal must be heard upon the return filed in the appellate
court by the clerk of the City Court of Yonkers ; and the judgment
or order appealed from may be affirmed, moditied or reversed by the
appellate court as shall be just and proper, and where necessary and
proper a new trial may be granted.

The order or judgment of the appellate court must be certified
and remitted to the City Court of Yonkers to be enforced, and judg-
ment thereon, with costs, if any, must be entered in the City Court
of Yonkers only. (Laws of 1878, chap. 186, § 56.)

The practice on the hearing will be governed by the rules of
practice of the court to which the appeal is taken.

SECTION VIII.
Supsequent APPEALS.

It further provided by statute that “from the order of judgment
of the General Term of the Supreme Court, on appeals taken under
this act, an appeal may be taken to the Court of Appeals, if allowed
by the Supreme Court, by an order made at the General Term which
rendered the determination, or at the next General Term after judg-
ment is entered thereupon. From the order or judgment of the
County Court of Westchester county, on any appeal to it, taken
under this act, an appeal may be taken to the General Term of the

Supreme Court, in the same cases and in the same manner as pro-
vided by chapter thirteen, title three of the Code of Civil Procedure,
Costs on APPEAL. 467

 

Costs on appeal.

 

for appeals to the Supreme Court from an inferior court, except
that the judgment rendered or order made by the Supreme Court
must be certified and remitted to the clerk of the City Court of
Yonkers, in whose office the judgment-roll or appellate papers
must be filed, and said judgment or order of the Supreme Court
must be entered.” (Laws of 1878, chap. 186, § 56.) Chapter
twelve of the Code of Civil Procedure was doubtless *intended
to be referred to in the last sentence instead of chapter thirteen of
that act.

The provisions of the statute heretofore given as to the time of
taking an appeal under this act (see ante, p. 465), and as to staying
proceedings upon the judgment or order appealed from (see ante,
p. 465), apply to and govern the time of taking or staying proce:d-
ings on such subseqnent appeals. As to obtaining leave to appeal to
the Court of Appeals, see ante, p. 241. As to appeals to the
Supreme Court from the inferior court (see ante, p. 361).

SECTION IX.
Costs on APPEAL.

The statute also provides that “the appellant on reversal, and the
respondent upon affirmance, or the dismissal of an appeal to the
County Court of Westchester county of a judgment of the City
Court of Yonkers or the city judge, shall be entitled to twenty-five
dollars costs; and the prevailing party on an appeal from an order
shall be entitled to ten dollars costs. On appeal to the General
Term of the Supreme Court, or to the Court of Appeals, the prevail-
ing party shall be entitled to the same costs as provided by law on
other appeals to such courts. The prevailing party shall in all cases
be entitled to his taxable disbursements.” (Laws of 1878, chap. 186,
§ 50.)

“ The clerk of said court shall, on two days’ notice, adjust and tax
the costs and disbursements of the prevailing party, and the amount
shall be included in the judgment, but the same shall be subject to
retaxation on motion to the City Court.” (Id. § 51.)
CHAPTER X.

COSTS ON APPEAL.

ARTICLE I.

WHO ENTITLED TO COSTS.

SECTION I.
Costs or Course to THE Prevartie Parry.

Tux Code provides that “upon an appeal from the final judg-
ment in an action, the recovery of costs is regulated as follows:

1. In an action specified in section 3228 of this act, the respon-
dent is entitled to costs upon the aflirmance, and the appellant upon
the reversal, of the judgment appealed from ; except that, where a
new trial is directed, costs may be awarded to either party, absolutely
or to abide the event, in the discretion of the court.

2. In every other action, and also where the final judgment
appealed from is affirmed in part, and reversed in part, costs may be
awarded in like manner, in the discretion of the court.” (Code of
Civil Pro. § 3238.) Where there is an entire affirmance or reversal
of the judgment appealed from, and a new trial is not directed, the
prevailing party is entitled to costs if the action falls within one of
the following classes :

1. An action triable by a jury, to recover real property, or an
interest in real property, or in which a claim of title to real prop-
erty arises upon the pleadings, or is certified to have come in ques-
tion upon the trial.

2. An action to recover a chattel.

8. An action where the people of the State are a party, except
for one or more fines or penalties not exceeding two hundred
dollars.
Costs To Prevaitinc Parry. 469

 

Costs to prevailing party.

 

4. An action to recover damages for an assault, battery, false
imprisonment, libel, slander, criminal conversation, seduction, or
malicious prosecution.

5. An action against next of kin, Iegatees, etc., to recover for a
debt of a decedent, under section 1837, or section 1843, of the Code
of Civil Procedure.

6. An action brought by a child born after the making of a will,
or by the subscribing witness to a will, to recover his share of the
property, under section 1868 of the Code of Civil Procedure.

%. An action brought by an executor or administrator, under sec-
tion 1902 of the Code of Civil Procedure, to recover damages for a
wrongful act, neglect, or default, causing the death of his testator or
intestate.

8. An action brought by the people of the State, under section
1969 of the Code of Civil Procedure, to recover for public funds
illegally obtained, converted, ete.

9. An action embracing a matter of account in which the total
accounts of the parties exceed four hundred dollars.

10. An action, other than one of those specified in the foregoing
subdivisions, in which the complaint demands judgment for a sum
of money only. (Code of Civil Pro. § 3228; Id. 2863, subds. 1, 3,
4 and 5.)

In all these cases costs follow an aftirmance or a reversal asa
matter of statutory right independent of any order of the court allow-
ing or disallowing them. (See Sprague v. Richards, 30 Hun, 246;
Gray v. Hannah, 3 Abb. N. S. 183; Combs v. Combs, 25 Hun,
279; Levere Copper Co. v. Dimmock, 29 Hun, 299 ; .4 res v. West-
ern R. BR. Co., 49 N. Y. 660; Supervisors of Tompkins Co. v.
Bristol, 58 How. 3.)

Where an appeal is taken from an order granting a new trial, or
where the appeal is taken from an order refusing a new trial without
also appealing from the judgment rendered upon the trial, and the
decision upon the appeal refuses a new trial, the respondent is
entitled, of course, to the costs of the appeal. (Code of Civil Pro.
§ 3239.)

The foregoing provisions of the Code apply generally to actions
in the Supreme Court, a Superior City Court, the City Court of
New York, or a County Court, wherever they may have originated.
(Code of Civil Pro. § 3847 ; Porter. v. Cobb, 25 Hun, 184; Combs v.
Combs, Id. 279.) And it has been held that where an appeal has
=
470 New Triats anp Apprats.

 

Costs to prevailing’ party.

been taken to ‘the County Court from a judgment rendered by a
justice of the peace in an action in which the complaint demanded
judgment for a sum of money only, and, on appeal to the Supreme
Court from the judgment of the County Court, the latter judgment
is affirmed, the respondent is entitled to costs of course, and that
this right is net affected by subdivision 13 of section 3347 of the
Code. (Combs v. Combs, 25 Hun, 279.)

Section 3245 of the Code of Civil Procedure, providing that costs
cannot be awarded to the plaintiff in an action against a municipal
corporation, in which the complaint demands judgment for a sum
of money only, unless the claim has before the commencement of
the action been presented for payment to the chief fiscal officer of
the corporation, does not apply to the costs of an appeal. (Ulca
Water - Works Oo. v. City of Utica, 31 Hun, 426.)

On an appeal from a judgment or order of the City Court of Yon-
kers the prevailing party is entitled to costs. (Laws of 1878, chap.
186, § 50.)

Upon an appeal from a judgment of a justice of the peace, where
a new trial is not had in the County Court, the respondent is
entitled to costs upon an affirmance, and the appellant upon a
reversal of the judgment appealed from. (Code of Civil Pro. § 3066 ;
Logue v. Gillick, 1 BE. D. Smith, 398 ; Hahn v. Van Doren, Id. 411;
Main v. Eagle, 1d. 619; Chapin v. Churchill, 12 How: 367; Sny-
der v. Goodrich, 2 E. D. Smith, 84; Wood v. Brown, 6 Daly, 428.)
Upon an appeal to the County Court from a judgment ofa justice of
the peace, where a new trial is had in the appellate court, the right of
the prevailing party to recover the costs of the appeal may depend
upon whether he has refused to accept any offer of judgment made by
the adverse party, and if he has, whether the recovery upon the new
trial was more favorable to him than the sum offered. The statute
specifies the mode of making the offer and the effect of non-accept-
ance. (See ante, p.430.) If the appeal is from a judgment for a sum
of money only, the offer may be made by either party within fifteen
days after service of the notice of appeal ; and if made as provided
by the statute, and not accepted, the party refusing to accept the
same is liable for the costs of the appeal, unless the recovery is more
favorable to him than the sum offered. (Code of Civil Pro. § 3070.)
So either party, at any time after the action is deemed at issue in the
appellate court, and before trial, may serve an offer to allow judg-
ment to be taken against him, and if the offer is not accepted, and
Costs to Prevaiuina Parry. 471

 

Costs to prevailing party.

 

the party to whom it was made fails to obtain a more favorable
judgment, he cannot recover costs from the time of the offer, but
must pay costs from that time. (Code of Civil Pro. § 3072.) If no
offer is made by either party as above provided, the party in whose
favor the verdict, report or decision in the appellate court is given,
is entitled to recover his costs upon the appeal. (Id. § 3070.) Any
offer to modify the judgment below, made to the justice after the
judgment was entered and before an appeal therefrom has been
taken, cannot affect the right to recover costs of the appeal. (Adlen
v. Swan, 32 Hun, 363.)

It will be noticed that the amendment of section 3070 of the
Code in 1885 has effected a radical change in the former rule regn-
lating the right to recover costs after a new trial in the County Court
on appeal from a judgment of a justice of the peace, and has ren-
dered obsolete many recent decisions under the statute prior to the
amendment. Under this section, as it existed before the amendment,
if no offer was made, and the verdict, report, or decision upon the
appeal was more favorable to the appellant by the sum of ten dollars
than the verdict or decision in the court below, the appellant was
entitled to recover the costs npon the appeal ; otherwise the respon-
dent recovered costs. (See Allen v. Swan, 32 Hun, 363; Carling
v. Ladd, 27 Hun, 112; Snyder v. Hughes, 27 Tun, 873; Groua v.
MeCrum, 7 Wun, 8; Bigsby v. Warden, 62 N. Y. 27; 46 How.
239.) Under the section as amended, if no offer is made by either
party, the party in whose favor the verdict, report, or decision in the
appellate court is given is entitled to recover his costs uppn the
appeal without regard to the amount of the recovery below. Under
this section before the amendment, if the respondent made an offer
of judgment which the appellant declined to accept, and the verdict,
report, or decision upon the appeal was more favorable to the appel-
lant by the sum of ten dollars than the amount of the offer, the
appellant was entitled to recover costs upon the appeal ; otherwise
the respondent recovered costs. Under the section as amended, either
party may offer judgment, and the party refusing to accept the same
is liable for the costs of the appeal unless the recovery is more favora-
ble to him than the sum offered. The amount in which the recovery is
more favorable to the party refusing to accept the offer is unimport-
ant. But section 3070 of the Code does not attempt to prescribe
which party shall be entitled to costs where an offer of judgment is
made by one party and not accepted by the other, and the recovery
£72 New Trrats anp APpEALs.

Costs to prevailing party.

 

is more favorable to the party refusing to accept the offer than the
sum offered. In such case, it would seem that the right to costs is to
be determined by the general statutes regulating costs in actions
tried in courts of record. (See Snyder v. Hughes, 27 Hun, 373;
Quick v. Wiwon, 27 Wun, 592.)

In determining which party is entitled to costs where an offer of
judgment has been made and not accepted, the recovery in the
appellate court is to be compared with the offer; and a comparison
between the recovery in the appellate court and the judgment ren-
dered below, is no longer necessary or authorized.

As the manner of taking an appeal includes the manner of dis-
posing of it, when there is no other provision as to how the appeal
shall be determined, and as tothe costs thereon (see Clark v. Car-
roll, 61 How. 47), the foregoing provisions of the Code as to the
recovery of costs on an appeal from a judgment rendered by a
Justice of the peace apply to the recovery of costs upon an appeal
from a judgment rendered by the City Court of Albany, by a Jus-
tice’s Court of the city of Troy (Code of Civil Pro. § 3213);
by the Municipal Court of Buffalo (Laws of 1880, chap. 344, § 6) ;
by the Municipal Court of the city of Rochester (Laws of 1880, chap.
14, § 246); by the City Court of Utica (Laws of 1882, chap. 103,
§ 6); or by the City Court of the city of Auburn (Laws of 1879,
chap. 53, § 66.)

The costs on an appeal to the Common Pleas from a judgment of
a District Court of the city of New York are governed by the pro-
visions of the Code regulating costs on similar appeals from a judg-
ment rendered by a justice of the peace (see Clark v. Carroll, 61
How. 47); except that where the judgment appealed from is modi-
tied, or a new trial in the court below is ordered, the costs are in the
discretion of the appellate court. (Code of Civil Pro. § 3213.)

Where a final order made in summary proceedings before a jus-
tice of the peace is reversed on appeal to the County Court, the
appellant is entitled to costs as of course. (Llarrison v. Swart, 34
Hun, 259.)

Where a defendant has appealed from a judgment rendered in
favor of the plaintiff, and pending the appeal a third person is
allowed to come in as a party plaintiff and respondent to protect such
interest as he may have in the judgment, such person, on affirmance
of the judgment, is entitled to the costs to which he has been sub-
Wuen Nerrurr Party Entitiep to Costs. 473

 

When neither party entitled to costs,

 

jected in protecting his interests. (Sprague v. Richards, 30 Hun,
246.)

Where cross-appeals are taken from a judgment in acommon law
action for the recovery of money only, and the judgment is affirmed
by the appellate court upon the hearing of both appeals, the respond-
ents in each appeal are entitled, as of course, to the costs of their
respective appeals, As in such case both appeals must be heard
together, and a single judgment of affirmance entered, the judgment
should in due form award costs to the parties entitled to them by
law, and against those who are bound by law to pay them. This
may be accomplished by separate clauses in the judgment giving the
several parties the costs to which the affirmance entitles them. But
a defendant who has not appealed cannot be charged with the costs
of an unsuccessful appeal by his co-defendants. (Board of Super-
visors v. Bristol, 58 How. 3.)

SECTION II.
Wuaen Nerraer Party Entittep to Costs.

When an appeal is taken from an order refusing a new trial, and
an appeal is also taken from the judgment rendered upon the trial,
neither party is entitled to the costs of the appeal from the order.
(Code of Civil Pro. § 3239, subd. 2; see Bullard v. Pearsall, 46
How. 383, 530; West v. Lynch, 1 City Ct. Rep. 174.)

Upon an appeal from a judgment of a justice of the peace,
where a new trial is not had in the appellate court, if the appeal is
dismissed because neither party brings it to a hearing, costs shall not
be awarded to either party. (Code of Civil Pro. § 3066, subd. 1.)

The right to costs is purely statutory, and, in the absence of some
statute authorizing it, costs cannot be awarded to either party.
Therefore, on appeal from an order of the Special Term adjudging
a party guilty of a criminal contempt, the General Term has no
power, on reversal, to award costs against the relator. (People v.
Gilmore, 88 N. Y. 626.)

Where the order of the Special Term confirming the report of
commissioners appointed to appraise lands taken for railroad pur-
poses is reversed by the General Term on an appeal taken by the
railroad company, costs cannot be awarded against the land-owners.
(Maiter of New York, West Shore, etc., R. R. Co., 94 N. Y. 287.)
AT4 New Trrats anp ApPrats.

 

When costs in the discretion of the court.

 

There is no warrant in the statute for awarding such costs, and if
there were, it would be a violation of the constitutional right of the
land-owner. (Id.)

SECTION III.
Wuen Costs are In THE DiscrETION oF THE CouRT.

Upon an appeal from a final judgment in an action specified in
section 3228 of the Code (see ante, p. 468), if the judgment is
reversed and a new trial is directed, costs may be awarded to either
party, absolutely or to abide the event, in the discretion of the court.
In every other action, and also where the final judgment appealed
from is affirmed in part and reversed in part, costs may be awarded
in like manner in the discretion of the court. (Code of Civil Pro.
§ 3238. See Howell v. Van Siclen, 8 Unn, 524; 54 Low. 264; 4
Abb. N. C.1; Ayres v. Western 22. BR. Co., 49 N. Y. 660; Sturgis
v. Spofford, 55 N. Y. 103; Murtha v. Curley, 92 N. Y. 359; 65
How. 86; 3 Civ. Pro. R. 266.)

Where the action in which the appeal is taken is of such a nature
that costs would follow, as of course, to the successful party upon an
absolute aflirmance or reversal (see ante, p. 468), the discretion given
by the section above cited as to the award of costs where the judgment
is affirmed in part and reversed in part is limited to the costs in the
appellate court which thus modifies the judgment. (Sturgis v.
Spofford, 58 N. Y. 103.) But where the action in which the appeal
is taken is of such a nature that all costs therein are in the discretion
of the court, this limitation does not apply, and the appellate court
may exercise its discretion not only as to costs in that court, but also
as to the costs in every inferior court whose determination it reverses
and renders of no effect by its judgment. (Matter of Hood, 30 Hun,
472; Murtha v. Curley, 65 How. 86; 3 Civ. Pro. R. 266.)

Upon an appeal from an interlocutory judgment or an order in
an action, costs are in the discretion of the court, and may be
awarded absolutely or to abide the event, except as follows :

1. Where the appeal is taken from an order granting or refusing
a new trial, and the decision upon the appeal refuses a new trial, the
respondent is entitled, of course, to the costs of the appeal.

2. When the appeal is taken from an order refusing a new trial,
and an appeal is also taken fro:n the judgment rendered upon the
Wuen Oosrs 1x tuz Discretion or tur Court. ATSB

 

When costs in the discretion of the court.

 

trial, neither party is entitled to the costs of the appeal from the
order. (Code of Civil Pro. § 3239.)

Costs in a special proceeding instituted in a court of record, or
upon an appeal in,a special proceeding taken to a court of record,
where the costs thereof are not specially regulated in the Code, may
be awarded to any party in the discretion of the court, at the rates
allowed for similar services in an action brought in the same court,
or on an appeal from a judgment taken to the same court, and in
like manner. (Id. § 3240.) Costs on appeal from a summary pro-
ceeding instituted before a justice of the peace are specially regu-
lated by sections 2260 and 3066 of the Code, and are therefore not
discretionary. (Harrison v. Swart, 34 Hun, 259.)

Costs of an appeal from a decree of a surrogate are discretionary.
(Lawrence v. Lindsay, 70 N. Y. 566.)

Upon an appeal from the decree or order of a surrogate, the
appellate court may award to the successful party the costs of the
appeal, or it may direct that they abide the event of a new trial, or
of the subsequent proceedings in the Surrogate’s Court. (Code of
Civil Pro. § 2589.) Costs of an appeal from an order made upon a
motion for a new trial, after a trial by jury of a controverted ques-
tion of fact, may be awarded by the appellate court as if the appeal
was from an order or decree of the Surrogate’s Court. (Id. § 2549.)

Upon an appeal to the County Court from a judgment rendered
by a justice of the peace, if the judgment is reversed for an error in
fact, not affecting the merits; or if a new trial is directed before the
same or another justice, the costs of the appeal are in the discretion
of the appellate court. So if the judgment is affirmed only in part,
the costs, or such a part thereof as to the appellate court seems just,
not exceeding ten dollars, besides disbursements, may be awarded to
either party. (Id. § 3066.)

In the absence of any other provision- regulating costs on appeal,
the section last cited applies to costs on appeal from the City Court
of Albany, from a Justice’s Court of the city of Troy, from the
Municipal Court of Buffalo, from the Municipal Court of the city of
Rochester, from the City Court of Utica, and from the City Court
of the city of Auburn. (See ante, p. 472.) The rule as to costs
on appeal to the Common Pleas from the District Courts of New
York is substantially the same. (See Code of Civil Pro. § 3213;
Clark v. Carroll, 61 How. 47.)
476 New Trrars anp APPEALS.

 

Mode of exercising the discretionary power.

 

 

Must be awarded.—To entitle a party to costs when they are
in the discretion of the court, they must be awarded. The discretion
of the court must be affirmatively exercised. If the decision of the
court is silent as to costs, neither party is entitled to them. (Pen-
nell v. Wilson, 5 Rob. 674; 2 Abb. [N. 8.] 466 ; Matter of Protes-
tant Episcopal Public School, 86 N. Y. 396. See Halstead v. Hal-.
stead, 2 N. Y. Supr. Ct. [T. & C.] 673.) Silence is a denial, and
the addition of the words “ without costs,” adds nothing to the legal
effect of an omission to award them. (Commissioners of Pilots v.
Spofford, 3 Hun, 52.)

Mode of exercising the discretionary power.—In determin-
ing which party shall be awarded the costs of an appeal, where costs
are discretionary, or whether either party shall be allowed to recover
costs, the courts are guided by the circumstances surrounding the
case under consideration rather than by any general rule. Where a
judgment is reversed and a new trial granted, the appellate court may
award costs to abide the event without other limitation, or to a party
designated. The ground upon which the judgment is reversed is
often a controlling circumstance in directing the exercise of dis-
cretion. If the appellant has succeeded on a technical error, not
affecting the merits, the court will generally so award the costs of
the appeal that the appellant cannot recover them without ultimately
succeeding in the action. Where a new trial is ordered there is gen-
erally no injustice in awarding costs of the appeal to the party who
shall finally recover. (See Hirst Nat. Bank v. Fourth Nat. Bank,
84 N. Y. 469.) This is effected by awarding costs generally to abide
the event. (Id.)

Where a judgment is so modified on the appeal that neither party
entirely succeeds, costs are not usually awarded to either party.
(Matter of Clark, 36 Hun, 301, 303; Remington Paper Co. v.
O Dougherty, 36 Hun, 79, 90; Moore v. Appleby, 36 Hun, 368,
372; Pickett v. Barron, 29 Barb. 505, 509; Duffy v. Duncan, 32
Barb. 587, 600; Williams v. Fitzhugh, 87 N. Y. 444, 456; 44
Barb. 321, 827 ; Lawson v. Pinckney, 8 Jones & Sp. 187; Matter
of Scholle, 14 Hun, 14; Kenney v. Apgar, 93 N. Y. 539, 552;
Cook v. Lowry, 95 N. Y. 108, 115.) But where the modification
consists in the correction of some trivial error the court sometimes
aflirms the judgment, as modified, with costs. (Fisher v. Bishop, 36
Uun, 112, 115.) And where the judyment is modified so as to correct
Uxttmatr Rieur to Costs. 477

 

Where costs follow, as of course.

 

an error in the calculation of interest to which the attention of the
court below was not called, costs may properly be awarded to the
respondent. (Clark v. Geery, 8 Jones & Sp. 227.) And where a
judgment is affirmed as to one defendant and reversed as to the
other, it is a proper exercise of discretion to give costs upon the
reversal, in the absence of special circumstances. (Montgomery Co.
Bank v. Albany City Bank, 7 N. Y. 459, 465.)

An order is usually affirmed or reversed with costs. (See Pur-
chase v. Bellows, 16 Abb. 105.) But where the question is new and
the practice unsettled, costs are not usually awarded. (esse v.
Briggs, 13 Jones & Sp. 417; see Matter of New York, West Shore
& B. Rk. Lf. Co., 33 Hun, 293, 295; People v. Norton, 33 Hun,
277, 278; People v. Fire Commissioners, 5 Abb. N. C. 144, 146;
Matter of Singeriand, 36 Wun, 575.)

While the costs of an appeal from a decree of asurrogate may be
made payable out of the estate or fund, they may also be imposed
upon the party whose conduct has occasioned them. The appellate
court will charge an unsuccessful appellant with the costs of an
appeal wholly devoid of merit, even though the appellant is an exec-
utor or trustee. (See Hreeman v. Coit, 96 N. Y. 63, 70; Matter of
McCarter, 94 N. Y. 558; Matter of Martin, 98 N. Y. 193.)

Where a plaintiff has wholly failed on an appeal taken by him
from an entire judgment in favor of the defendants, which also deter-
mines the rights of the defendants as between themselves, and one
of the defendants has succeeded on a cross-appeal taken from the part
of the judgment determining his liability to his co-defendants, the
appellate court may order the plaintiff to pay costs directly to the
defendant succeeding on the cross-appeal, and deny costs to the other
parties, instead of directing the plaintiff to pay costs to the defend-
ants who did not appeal, and directing the latter to pay costs to the
defendant who succeeded as against them on his cross-appeal. (Jer-

chants’ and Traders’ Bank v. Mayor, etc., of NV. Y.,97 N.Y. 355.)

SECTION IV.
Uxrmare Riear to Costs AFTER sucoEssIVE APPEALS.

Where costs follow, as of course.—In actions at law, that is,
those specified in section 3228 of the Code of Civil Procedure (ante,
p- 468), costs follow the affirmance or absolute reversal of the judg-
478 New Triats anp APPEALS.

 

Where costs follow, as of course,

ment appealed from, as of course, and therefore, when the judg-
ment in such. action is finally affirmed or reversed, the costs fol-
low of course, notwithstanding any intermediate appeals that have
been taken, or the disposition of costs made thereon. Thus where
the plaintiff recovers on the trial a money judgment which entitles
him to costs, and the General Term reverses it and grants a new
trial, “with costs to the appellant to abide the event of such
new trial,” and the Court of Appeals reverses the order of the
General Term and affirms the judgment of the Special Term
“with costs,” the plaintiff is entitled to the costs of the appeals
to the General Term and to the Court of Appeals, of course, under
section 3238 of the Code. (Murtha v. Curley, 92 N. Y. 359;
65 How. 86; Revere Copper Co. v. Dimmock, 29 Hun, 299; San-
ders v. Townsend, 11 Abb. N. C. 217.) The same result would fol-
low if the decision of the Court of Appeals were silent as to costs,
as the right depends upon the statute and not upon the order of the
court. (See ante, p. 469.) But if the judgment of the court below
is affirmed in part and reversed in part by the Court of Appeals, the
costs of the appeal in the latter court are discretionary, and may be
either awarded or withheld, as to that court seems just, while the
costs in the court below will follow, as of course, to the party enti-
tled to the same under the provisions of the statute, unaffected by
the exercise of the discretion of the court above. (Sturgis v. Spof-
ford, 5& N. Y. 103.)

Thus where on an appeal to the General Term from a judgment
in favor of the plaintiff, the judgment is affirmed, but, on appeal to
the Court of Appeals, is reversed in part and affirmed in part with-
out costs to either party in that court, and the amount for which the
judgment is affirmed is less than an offer made by the defendant, the
latter is entitled to costs subsequent to the offer, including the costs
on the appeal to the General Term, but excluding the costs on
appeal to the Court of Appeals. (Id.; see Bathgate v. Haskin, 68
N. Y. 261.)

So where a judgment for the plaintiff rendered by a County
Court, upon a re-trial had therein on appeal from a justice’s judg-
ment, is affirmed in part and reversed in part by the Supreme Court,
“with costs of the appeal to the appellant,” the latter is entitled to
tax the costs of the appeal to the General Term by virtue of this
order, but is not entitled to tax the costs of the Justice’s Court or of
the County Court.
Uxrimate Ricgur to Costs. 479

 

In other cases,

 

The discretion of the Supreme Court in such case is limited to
the award of costs of the appeal to that court ; and the reversal of a
part of the judgment of the County Court does not affect the right
of the plaintiff to the costs and disbursements of the appeal to that
court. (Lenox v. Hidred, 65 Barb. 526.)

In other cases.—Where the Court of Appeals renders a judg-
ment “with costs” in a case where costs are discretionary, it gener-
ally means costs of that court to the successful party as against the
unsuccessful party. (Sisters of Charity v. Kelly, 68 N. Y. 628.)

Thus, if in proceedings to vacate an assessment, the petitioner
succeeds at the Special Term and obtains an order vacating the
assessment “with costs,” and the General Term reverses the order
with costs to the defendant in the proceeding, and the Court of
Appeals reverses the order of the General Term and affirms that of
the Special Term “with costs,” the latter award gives only tlie
costs of the appeal to the Court of Appeals. (fatter of the Protes-
tant Episcopal Publie School, 86 N. Y. 396.) So if the Special
Term adjudges a party guilty of contempt, the General Term affirms
the order, and the Court of Appeals reverses the order of the General
Term, and orders that the motion to punish for contempt be denied
with costs, the party succeeding in the Court of Appeals is only
entitled to the costs of that court. (People v. Randall, 8 Daly,
81.) So, if in an action in which costs are in the discretion of the
court, a judgment is rendered in the Supreme Court which is silent
as to costs, and on appeal to the Court of Appeals such judgment is
affirmed, with costs, the only costs recoverable are the costs in the
Court of Appeals. (Newcomb v. Hale, 64 How. 400; 12 Abb. N.
C. 338.) If, however, the judgment affirmed gave costs, the suc-
cessful party would obtain costs in the lower court by virtue of that
judgment. (Id.)

“ While it may be assumed that where an appellate court awards
costs, the effect is to include costs of such court only, yet if it
assumes to deal with the whole subject and wipes out and reverses
the judgment or decree appealed from, with costs, that includes all
the costs of all the inferior courts.” (latter of Hood, 30 Hun, 472;
Murtha v. Curley, 65 How. 86; 3 Civ. Pro. R. 266.)

Thus, if a defendant appeals to the General Term from a judg-
ment rendered against him in an equitable action, and on such appeal
the judgment is reversed and a new trial granted, with costs to the
480 New Trias anp APPEAL.

 

Ultimate right to costs,

 

appellant to abide the event of such new trial, and on an appeal by
the plaintiff to the Court of Appeals from the order of the General
Term, such order is reversed and the judgment of the Special Term
affirmed “ with costs,” this means all the taxable costs subsequent
to the judgment affirmed consequent upon the appeals both to the
General Term and to the Court of Appeals. (Id.) So where the
General Term has reversed a judgment for the defendant in an
equitable action and has ordered a new trial, with costs to the appel-
lant to abide the event, and the Court of Appeals has affirmed the
order of the General Term, and directed judgment absolute against
the defendant on his stipulation, “ without costs to either party,” this
disposes of all costs which previously were dependent upon the
result of the action, and the successful party cannot properly insert
costs in the judgment entered upon the remittitur. (Patten v.
Stitt, 50 N. Y. 591; reversing 2 Jones & Sp. 346.) So, where a
judgment in an equitable action has been rendered for the plaintiff,
without costs, the defendant has appealed, and the judgment has been
reversed by the General Term and a new trial ordered with costs to
the appellant, and on appeal to the Court of Appeals the order of
the General Term is affirmed and judgment absolute rendered in
favor of the defendant, with costs, the defendant is entitled to costs
from the commencement of the action, notwithstanding that the
costs were discretionary and were not allowed to the plaintiff by the
trial court. (Von Keller v. Schulting, 45 How. 189; Rust v. au-
selt, 14 Jones & Sp. 88; 8 Abb. N. C. 148. See Jermain v. Lake
Shore, etc., . 2. Co., 31 Hun, 558, 562.) So where the Court of
Appeals reverses the order of the General ‘Term in proceedings to
acquire lands for railroad purposes, and dismisses the proceeding
with costs, it must be intended that the costs of the proceeding in
the Supreme Court are embraced in the award. (Matter of New
York & West Shore R. FR. Co., 28 Hun, 505. See also Matter of
Hood, 30 Hun, 472, 473.) So, where on appeal from the decision
of a Surrogate the decision is affirmed by the Supreme Court, but on
appeal to the Court of Appeals both decisions are reversed without
costs, the appellant is not entitled to costs in either court. (d/ac-
gregor v. Buell, 17 Abb. 31.)

Where an order is made by the Court of Appeals upon an appeal
from a judgment, reversing the judgment, with costs to abide the
event, and without other limitation, the respondent, if finally success-
ful in the action, is entitled to tax the costs of the appeal. (First
Untrmare Rieat vo Costs. 481

 

Costs to abide the event.

Nat. Bank v. Fourth Nat. Bank, 84 N. Y. 469.) As a general
rule, where an appellate court reverses a judgment and orders a new
trial with costs to abide the event, and without other limitation, the
party finally prevailing is entitled to the costs of the appeal. (San-
ders v. Townshend, 63 How. 343; 11 Abb. N. C. 217; dott v. Con-
sumer’s Ice Co.,-8 Daly, 244.) If, however, the judgment is
reversed “ with costs to the appellant to abide the event,” and the
respondent again sneceeds upon the new trial, the latter is not enti-
tled to tax the costs of the appeal (Howell v. Van Siclen, 4 Abb. N.
C.1; 8 Hun, 524), but is entitled to tax the costs of both trials.
(Id.) And, generally, whenever the costs of a former trial are
directed to abide the event of the suit, the finally successful party is
entitled to the costs of both trials. (Carvey v. Rider, 2 Cow. 617 ;
Mott v. Consumer's Ice Co., 8 Daly 244.) Thus where a judgment
in favor of the plaintiff for so small an amount as to give the defend-
ant costs, is reversed by the General Term and a new trial granted
to the plaintiff, costs to abide the event, and on the second trial the
plaintiff recovers an amount sufficient to entitle him to costs, he may
tax all the costs of the action, including the costs of the first trial, of
the appeal, and of the new trial. (Carpenter v. Munhattan Life
Assurance Co., 25 Hun, 194.) So, where a-judgment in favor of
the plaintiff with costs, has been reversed by the General Term, and
a new trial granted with costs to abide the event, the prevailing
party is entitled to costs, whether the action is terminated by a judg-
ment or by discontinuance. (Van Wyck v. Baker, 11 Hun, 309.)
So where judgment has been ordered for the defendant in an action
of ejectment, the judgment has been affirmed at the General Term,
but has been reversed by the Court of Appeals and a new trial
granted, costs to abide the event, and on the new trial the plaintiff
recovers judgment, with costs, he is entitled to tax all costs in the
progress of the action, except costs of special motions not given to
him by ‘the terms of the orders made thereon. (Donovan v. Vande-
mark, 22 Hun, 307.) And where on appeal from a judgment in
favor of the plaintiff, there is an affirmance by the General Term,
but a reversal by the Court of Appeals, and a second judgment in
favor of the plaintiff upon the new trial, he is entitled to his costs
for all proceedings in the case, except such as, being discretionary,
have not been given to him. (Flinn v. Equitable Life Assurance
Society, 18 Hun, 212.) Where the plaintiff's complaint is dismissed
on the trial, with costs, the judgment entered thereon is affirmed

 
482 New Triats anp APPEALS.

 

Costs to abide the event,

 

with costs at the General Term, but is reversed by the Court of
Appeals and a new trial ordered, with costs to abide the event, and
on the new trial the plaintiff recovers judgment for so simall an
amount as to entitle the defendant to costs, the latter is entitled to
tax the costs before the first trial, the eosts of the first trial, the costs
of both appeals, and the costs of the new trial. (Isaacs v. Mew
York Plaster Works, 4 Abb. N. C. 4; 11 Jones & Sp. 397.)

Where the General Term has reversed a judgment and ordered a
new trial with costs to. the defendant to abide the event, and before
the new trial the defendant obtains leave to amend his answer “ upon
payment of costs of the action to the present time, not includ-
ing allowance,” this does not deprive the defendant of his contin-
gent right to costs under the decision of the appeal, nor does it
deprive him of the accrued costs of the action to the date of the order
in case he is suecessful therein. (Havemeyer v. Havemeyer, 16 Jones
& Sp. 104. But see Provost v. Farrell, 13 Hun, 303.)

It cannot be claimed that the cases cited in this seetion are har-
monious, or that they lay down any general rule of universal appli-
cation. Each court will construe its own order in accordance
with what was intended in the particular case before it, rather
than in pursuance of any settled rule of construction; and with
that construction a higher court will not interfere. (See Union
Trust Co. v. Whiton, 17 Hun, 593; 78 N. Y. 491; first Nat.
Bank v. Fourth Nat. Bank, 84 N. Y. 469, 471.1 Upon an
appeal to the Court of Appeals from a judgment of the Supreme
Court affirming the decree of a surrogate, the appellate court, on
reversing the judgment and remitting the proceeding for rehearing
by the surrogate, made the following direction as to the costs of the.
appeal: “costs in this court to be paid out of the estate.” This was
construed to mean costs to all parties, and not to the appellant alone ;
not, because the language of the order necessarily required that con-
struction, but because such a construction of the order was best cal-
culated to do justice in that particular case. (See Lawrence v. Lind-
sey, 70 N. Y. 566.)
Separate Bitts or Costs. 483

 

Separate bills of costs.

 

SECTION V.
Srparate Britis or Costs.

In an action against two or more defendants who appeared sepa-
rately by different attorneys, setting up substantially the same
defense, where judgment is rendered dismissing the complaint, and
upon appeal by the plaintiff such judgment is affirmed upon onc
argument, only one bill of costs of the appeal should be taxed, espec-
ially where the defendants have had separate bills of costs up to the
appeal. (De Lamater v. Carman, 2 Daly, 182; see Wilbur v. Weit-
sey, 13 How. 506.) And where several parties appeal, but there is
only one set of papers, one argument and one judgment of aflirm-
ance, the respondent is entitled to but one bill of costs. (Hverson v.
Gehrman, 2 Abb. 413.)

Where there is but one action and ‘one record, but one bill of
costs will be allowed. (Veeder v. Mudgett, 95 N. Y. 295, 315; see
Pratt v. Allen, 19 How. 450; Brock v. Pierson, 46 N. Y. 690.)

Upon appeal from an order the General Term may reverse a series
of orders so connected with the same matter that if one is erroneous
all are, but in such a case costs of but one motion and of but one
appeal can be granted. (Stanton v. King, 76 N. Y. 585.) And
where, in proceedings to, acquire lands belonging to different owners,
all are described in one petition, and the case as to all is heard
together, although separate orders are entered as to cach owner, and
upon appeal separate orders of aflirmance are entered, costs for
but one case are proper. (Matter of Prospect Park & C. 1. &. R.
Co., 67 N. Y. 371.)

Upon appeal.from a decree of a surrogate removing an executor
and guardian it is proper that infant respondents appear by attorneys
other than the attorneys for the adults and tax separate bills of costs
upon affirmance. (Savage v. Gould, 60 How. 255.)

Where the costs are in the discretion or the court, the question
whether or not separate bills are taxable depends upon the order of
the appellate court. Where the defendants answer separately in an
equity action, and a judgment in their favor is affirmed in the Court
of Appeals, “ with costs to the respondents,” but one bill can be
taxed. (Van Gelder v. Van Gelder, 84 N. Y. 658. See also Dat-
484 New Trrats anp APpEALs.

 

Separate bills of costs.

ter of New York, West Shore & B. Ry. Co., 98 Hun, 505.) Where
the General Term reverses a judgment and orders a new trial “ with
costs to each of the appealing parties,” and the Court of Appeals
aflirms the order and directs judgment absolute “ with costs,” the
defendants are entitled to separate bills on the appeal to the General
Term, and to a joint bill on the appeal to the Court of Appeals.
(Von Keller v. Schulting, 45 How. 139.) Where the General Term
settles the rights of the partics as to separate bills there is no
power in the Special Term to modify the General Term orders.
(Miller v. Coates, 2 Hun, 668.)

Where the action was for false imprisonment, and costs therefore
followed an affirmance of the judgment as matter of right, and the
judgment was affirmed “ with costs and disbursements of said appeal
to the defendants, respondents, to be taxed by the clerk of this
court,” it was said that the right to separate bills of costs depended
upon the effect to be given to the language of the order entered
upon the decision of the appeal ; and as that did not award separate
costs to each of the defendants, and as there was but one appeal and
one notice of it served, it could only have been intended to include
the costs of that appeal. (L%scher v. Langbein, 31 Hun, 272.)

Where an appeal to the Court of Appeals has been taken from a
series of orders of similar import, made in different actions, and the
parties have stipulated that the return in one of the cases shall be
considered as the return in all the other cases, and that the decision
and judgment of the Court of Appeals in either of the cases on
appeal shall stand as the decision and judgment of that court on the
appeals in all the other cases, the successful party is entitled to tax
costs in each of the cases, although only one case was actually argued.
(Hauselt v. Godfrey, 3 Civ. Pro. R. 116; 16 Week. Dig. 92.)
Sums aLLowep as Costs. 485

 

Upon appeal to the Court of Appeals.

 

ARTICLE ILI.

SUMS ALLOWED AS COSTS AND DISBURSEMENTS.

SECTION I.
Uron ApprEAL To THE Court or APPEALS.

Costs awarded to either party to an action, upon an appeal to the
Court of Appeals, must be at the following rates :

Before argument, thirty dollars.

For argument, sixty dollars.

For each term, not exceeding ten, at which the canse is on the
calendar, excluding the term at which it is argued, or otherwise
finally disposed of, ten dollars.

Where a judgment is affirmed by the Court of Appeals, the
Court may, in its discretion, also award damages, by way of costs,
for the delay, not exceeding ten per centum upon the amount of the
judgment; or, where it was rendered upon an appeal, upon the
amount of the original judgment. (Code of Civil Pro. § 3251.)

Costs upon an appeal to the Court of Appeals in a special pro-
ceeding, where the costs thereof are not specially regulated by the
Code, may be awarded to any party, in the discretion of the court,
at the rates allowed for similar services on an appeal taken from a
judgment taken to that court. (Id. § 3240.) The discretion relates
only to the question whether any costs shall be awarded, not as to
the rate of costs. (See Matter of Protestant Episcopal Public
School, 86 N. Y. 396; People v. Fire Commissioners, 5 Abb. N.C.
144. See also, People v. Sturtevant, 9. How. 304; 3 Duer, 616.)

When costs are awarded on an appeal to the Court of Appeals,
the party to whom they are given is entitled to the full statutory
allowance, whether the appeal is from an order or from a judgment.
The Code makes no distinction between the two classes of appeals,
as to the amount of costs recoverable in that court. (Wazte v.
Anthony, 23 N. Y.164; Brown v. Leigh, 50 N. Y. 427; Kelly v.
Plum, 50 How. 236; Zauton v. Groh, 9 Abb. N. 8. 453; Hail v.
Himmons, 40 How. 187.) The fact that the appeal is heard as a
motion does not affect the amount of costs recoverabie. (Hall v.
486 New Triats anp APpEALs.

 

Costs on appeal to the General Term.

 

Emmons, 40 Wow. 137.) And where an appeal from a non-appeal-
able order of the General Term is dismissed with costs after a sub-
mission for decision on the merits, the successful party is entitled to
full costs. (White v. Anthony, 23 N. Y. 164; Webb v. Worton, 10
How. 117.) But ifthe appeal is dismissed on motion before being
reached in its order on the calendar, it may be that the fee for argu-
ment is not taxable. (See Kanouse v. Martin, 2 Sandf. 739.) It is
not necessary that there should be an oral argument in order that the
fee for argument may be taxed. The prevailing party is entitled to
this fee, although the case is submitted on printed points. (Jfal-
colm v. Hamitl, 65 How. 506.)

As there is practically but one term of the Court of Appeals held
during each year, only one term fee for each calendar year can be
allowed in any cause. (Palmer v. De Witt, 42 How. 466; Wahite-
man v. Leslie, 1 Law Bull. 50. But see Macy v. Welson, 49 How.
204; Carpentier v. Willett, 28 How. 376; 3 Rob. 700.)

SECTION II.
Costs on APPEAL To THE GENERAL Tzrm, Ero.

Costs awarded to either party to an action upon an appeal to the
Supreme Court from an inferior court, or upon an appeal to the
General Term of the Supreme Court, or of a Superior City Court,
or of the City Court of New York, taken from an interlocutory or
final judgment, or from an order granting or refusing a new trial,
rendered or made in the same court, or ina Circuit Court ; or upon
an appeal to the Court of Common Pleas for the city and county of
New York from the City Court of New York ; or upon an applica-
tion to a General Term for a new trial, or for judgment upon a ver-
dict, rendered subject to the opinion of the court, or where excep-
tions are ordered to be heard, in the first instance, at the General
Term, must be at the following rates :

Before argument, twenty dollars.

For argument, forty dollars.

For one General Term of the City Court of New York at which
the cause is necessarily on the calandar ; and for each General Term,
not exceeding five, of the Supreme Court, or of a Superior City
Court, at which the cause is necessarily on the calendar, excluding
Costs on APPEAL, 487

 

Costs on appeal.

 

the term at which it is argued or otherwise finally disposed of ; ten
dollars. (Code of Civil Pro. § 3251.)

Where costs are awarded on an appeal from an order granting or
refusing a new trial the statute above cited fixes the rate at which
they are to be taxed. (See Pilgrim v. Donnelly, 1 How. N. 8. 281.)

Full costs follow an appeal to the Common Pleas from the
General Term of the City Court, whether the appeal is from a
judgment or from an order, and whether the appeal is dismissed
or determined on the merits. (Goodridge v. Connor, 66 How.
143.) So, on an appeal from an order made in a special proceeding,
the costs, if any are awarded, will be the same as on an appeal froin
a judgment, unless they are specially regulated by the Code. (Code
of Civil Pro. § 3240; People v. Board of Supervisors of Ulster Oo.,
65 How. 327.) Prior to the amendment of section 3240 of the Code
in 1881, the costs usually allowed to the successful party on an
appeal from an order made in a special proceeding was a sum not
exceeding ten dollars and the necessary disbursements. (fatter of
NV. Y. Protestant Episcopal Public School, 24 Hun, 367; 86 N.Y.
896; Ranney v. Peyser,3 Law Bull. 10.) And ina recent case it
was held that the costs on an appeal from an order in a special pro-
ceeding in a Surrogate’s Court must be as in a similar case in an
action in the Supreme Court, viz., ten dollars and printing disburse-
ments. (Walsh v. Van Allen, 36 Hun, 629.) In an earlier case, it
was held that on an appeal to the Supreme Court from a decree of a
surrogate which finally determines the rights of the parties to the
special proceeding, costs may be awarded at the same rates as are
allowed upon an appeal from a judgment. (Cole v. Terpenning, 27
Hun, 111.)

Where an action originally brought in 4 justice’s court has been
certified to the Supreme Court on account of some disability of the
county judge which prevents him from sitting in the case, the costs
of the proceedings in the Supreme Court must be taxed according
to the statute regulating costs in the County Court. (AlcLaughlin v.
Smith, 3 Hun, 250. See Code of Civil Pro. § 342.)

No argument fee is allowed on a decision of the General Term
of the Supreme Court dismissing an appeal upon motion. (Dunseith
v. Stark, 3 Law Bull. 42.)
488 New Triats anp APPEALS.

 

Where a new trial is had in the appellate court.

 

SECTION III.
Costs on APPEAL TO THE Country CouRT.

Where a new trial is not had in the appellate court.—
Where a new trial in the County Court is not demanded in the
notice of appeal, and the case is argued upon the return, costs, when
awarded, must be as follows, besides disbursements :

To the appellant, upon reversal, thirty dollars.

To the respondent, upon affirmance, twenty-five dollars. (Code
of Civil Pro. § 3067.)

If the judgment is affirmed only in part, the costs, or such part
thereof, as to the appellate court seems just, not exceeding ten dol-
lars, besides disbursements, may be awarded to either party. (Id. §
3066.)

If the respondent has stipulated for a reversal of the judgment,
the appellant may tax five dollars costs and the disbursements of the
appeal. (Id. § 3062.)

Where a new trial is had in the appellate court, costs,
when awarded, must be as follows, besides disbursements :

For all proceedings before notice of trial, fifteen dollars.

For all subsequent proceedings before trial, ten dollars.

For the trial of an issue of law, fifteen dollars.

For the trial of an issue of fact, twenty 4ollars.

For the argument of a motion for a new trial on a case, fifteen
dollars. ;

For each term, not more than five, at which the appeal is regu-
larly on the calendar, excluding the term at which it is tried or
otherwise finally disposed of, ten dollars. (Code of Civil Pro. §

3073.)
IncrEaseD Costs. 489

 

Increased costs.

 

SECTION IY.
Costs on APPEAL TO THE Common Preas rrom a Districr Court.

The costs on an appeal to the Court of Common Pleas from a
judgment of a District Court of the City of New York are governed
by sections 3060 and 3067 of the Code of Civil Procedure. The
appellant is therefere entitled, on reversal, to thirty dollars and dis-
bursements, and the respondent is entitled on affirmance to twenty-
tive dollars and disbursements. (Code of Civil Pro. §§$ 3213, 3060,
3067: Clark v. Carroll, 61 How. 47; Sherwood v. Travelers’ Insur-
ance Co., 65 How. 193; 3 Civ. Pro. R. 281.)

SECTION V.
DovsiE or Ixcreasep Costs.

In either of the following cases a defendant in whose favor a
final judgment is rendered in an action wherein the complaint
demands judgment for a sum of money only, or to recover a chattel,
or a final order is made in a special proceeding instituted by a State
writ, is entitled to recover the costs prescribed in section 3251 of the
Code, and in addition thereto, one-half thereof:

1. Where the defendant is or was a public officer, appointed or
elected under the authority of the State, or a person specially
appointed according to law to perform the duties of such an officer,
and the action or special proceeding was brought by reason of an act
done by him by virtne of his office, or an alleged omission by him to
do an act which it was his official duty to perform.

2. Where the action was brought against the defendant by reason
of an act done by the command of such an officer or person, or in his
aid or assistance touching the duties of the office or appointment.

3. Where the action was brought against the defendant for taking
a distress, making a sale, or doing any other act by or under color of
authority of a statute of the State.

But this section dees not apply where an officer or other person
specified herein, unites in his answer with a person not entitled to
490 New Triats anp APppPEAts.

 

Increased costs.

such additional costs. (Code of Civil Pro. § 3258. See Trial Prac-
tice, 404.)

Section 3251 of the Code, referred to in the section above cited,
is the one regulating the rate of costs which may be taxed for the
proceedings in the trial court or on appeal.

The provisions as to double or increased costs applies to actions
and proceedings in the Supreme Court, in a Superior City Court, in
the City Court of New York, and in a County Court, without regard
to the foram in which the action or proceeding originated. (See
Porter v. Cobb, 25 Hun, 184.) And, therefore, an action commenced
in a Justice’s Court and brought into the County Court, and thenee
into the Supreme Court on appeal, where final judgment is rendered
for the defendant, is within the provisions of section 3258 giving
double or increased costs, if the character of the cause of action or
proceeding is such as is specified in that section. (Id.)

The right to increased costs in a case falling within the statute is
absolute, and as perfect as the right to single costs. (Smith v.
Cooper, 30 Hun, 395.) But a certificate of the facts entitling the
defendant to the increased costs is required by the Code as evidence
upon which the taxing officer is to act. (Id.; Code of Civil Pro.
§ 3248.) It is not necessary, however, that the appellate court should
refer to the right to increased costs in its determination of the appeal.
(Carpenter v. Willett, 3 Rob. 700; 28 How. 376.) The certificate,
which is made the only competent evidence of the right when the
facts entitling the defendant to the increased costs appear upon the
trial of the action, is to be granted by the judge presiding at the
trial, or by the referee before whom the cause was tried. (Code of
Civil Pro. § 3248.) The form of the application for such costs is
immaterial. (Smith v. Cooper, 30 Hun, 395. Fora form of the
certificate, see Hudson v. Guttenberg, 9 Abb. N. C. 415.)

Where the defendant succeeds upon the trial, and also npon all
appeals taken by the plaintiff from the judgment rendered in the
defendant’s favor, he is entitled to increased costs upon the trial and
upon each appeal, if the case is one embraced in section 3258 of the
Code. (See Bartle v. Gilman, 17 How. 1; Burkle v. Luce, 1 N.
Y. 239.) But his right to increased costs is limited to cases in which
he sueceeds as defendant or respondent, and does not extend toa
ease in which he succeeds as an appellant. (Zoster v. Cleveland, 6
How. 253; Doestader v. Sammons, 4 Hill, 546; Scott v. Farley,
3 Law Bull. 29.) Thus, where there is a recovery against a public
DispuRsEMENTS. ADL

 

Upon appeal to the County Court.

 

officer in a Justice’s Court, a reversal of the judgment by the County
Court on an appeal taken by the defendant, and an affirmance of the
judgment of the County Court by the Supreme Court on an appeal
taken by the plaintiff, the defendant is entitled to double costs on
the last appeal only. (Wheelock v. Hotchkiss, 18 How. 468.)

The increase of costs given by the statute does not extend to dis-
bursements (Code of Civil Pro. § 3259); and although the costs as
increased are commonly called double costs, they are in fact but
single costs with one-half thereof added. (Id. § 3258.)

SECTION IV.
DisBurRsEMENTS.

In general.—A party to whom costs are awarded in an action,
is entitled to include in his bill of costs his necessary disbursements
as follows: the legal fees of witnesses, and of referees and other offi-
cers; the reasonable compensation of commissioners taking deposi-
tions ; the legal fees for publication, where publication is directed,
pursuant to law ; the legal fees paid for a certified copy of a deposi-
tion, or other paper, recorded or filed in any public office, necessarily
used or obtained for use on the trial; the reasonable expenses of
printing the papers for a hearing when required by a rule of the
court; prospective charges for the expenses of entering and docket-
ing the judgment; and the sherifi’s fees for receiving and returning
one execution thereon, including the search for property ; and such
other reasonable and necessary expenses as are taxable according to
the course and practice of the court, or by express provision of law.
(Code of Civil Pro. § 3256.)

Many of the items of disbursement enumcrated in the foregoing
section of the Code could not be taxed as a part of the costs of an
appeal, except where the appeal was to a County Court from an
inferior court, and a new trial was had in the appellate court.

Upon appeal to the County Court.—Where a new trial is had
in the County Court upon an appeal from a judgment rendered in a
Justice’s Court or other inferior court, the party to whom costs are
awarded, is entitled to include in his bill of costs his necessary dis-
bursements as provided in section 3256 of the Code. (See ante, p.
488.) And upon all appeals to the County Court from the judg-

 
492 New Triazts anp Apprars.

 

Upon appeal to the Common Pleas—Printing the appeal-book.

 

ment of an inferior court, whether a new trial is had in the appellate
court, or the appeal is heard and determined upon the return, if costs
are awarded to the appellant, he may include in the disbursements
upon the appeal, the costs and fee paid to the justice upon taking
the appeal, and where the judgment rendered by the justice was
against the appellant, he may also include in those disbursements
the costs of the action before the justice which he would have been
entitled to recover, if the judgment of the justice had been in his
favor. (Code of Civil Pro. § 3060.)

Upon an appeal to the Common Pleas from a judgment ren-
dered by a District Court, where costs are awarded to the appellant,
he may include in the disbursements upon the appeal, the costs and
fee paid upon taking the appeal, and if the judgment below was
against him, he may also include in those disbursements the costs in
the action in the court below to which he would have been entitled
had the judgment been in his favor. (See Clark v. Carroll, 61
How. 47; Sherwood v. Travelers’ Ins. Co., 65 How. 193; 3 Civ.
Pro. R. 281.)

Printing the appeal-book.—The ‘cost of printing papers and
points on appeal is a proper.item of disbursement. (Hrie Railway
Co. v. Ramsey, 10 Abb. N. 8. 109.) The Code authorizes the pre-
vailing party to insert in his bill of costs, “ the reasonable expense of
printing the papers for a hearing when required by a rule of the
court.” (Code of Civil Pro. § 3256.) The amount paid by the suc-
cessful party may be taxed by him as one item of disbursement in
the absence of evidence, that the sum charged was fraudulently or
collusively exaggerated, or more than the usual charge at his place of
residence. (Salter v. Utica & Black River Re. L. Co., 86 N. Y.
401.) There seems to have been some uncertainty as to whether the
prevailing party was entitled to tax the usual expense of printing
without regard to the sum actually paid (see Consalus v. Brother-
son, 54 How. 62), or whether he must tax the actual expense only.
(See Potter v. Markham, 56 How. 89.) It seems to be settled that
the amount paid is presumptively the amount at which the item
should be taxed, subject, however, to proof in rebuttal that the
amount charged is excessive.

Under the rules of the Court of Appeals no charge for printing
cases, points and other papers furnished to the court in calendar
DisBursEMENTS. 493

 

Clerk’s fees, etc.

 

causes can be allowed as a disbursement, unless it is shown by affidavit
that no smaller letter or more compact mode of composition than
small pica, solid, was used in printing any of such papers. (Rule 6,
Ct. App.)

Rule 34 of the generai rules of practice prohibits the insertion
of unnecessary matter in the case or exceptions as settled, and pro-
vides that in case any case or bill of exceptions does not conform to
the rule, the court before which the case or bill is bronght for review
may order it back for settlement, or may direct that no costs shall be
taxed for the printing of so much of the case as it shall deem to have
been unnecessarily inserted. (See ante, p. 143.) A party’s brief or
points may be so voluminous as to render the expense of printing the
same too burdensome to be allowed asa disbursement. (Corbitt .v.
De Comeau, 13 Jones & Sp. 587.)

 

Clerk’s fees, ete.—The expense of procuring a certified copy
of the return, of its transmission to the appellate court, and of filing
it with the clerk of that court, is a necessary disbursement. The
parties cannot by stipulation dispense with the clerk’s certificate to
the return (Dow v. Darragh, 92 N. Y. 537), nor can they compel
the clerk to certify the return on the payment of his fees for a cer-
tificate only. It is the duty of the clerk to see that the return is a
proper one, and for this service he is entitled to charge his full fees,
which are not less thdn five cents for each folio. (Code of Civil Pro.
§ 3301 ; Chambers v. Appleton, 15 Jones & Sp. 524 ; and see Towns-
end v. Nebenzahl, 2 McCarty, 342,n.) He is also entitled to charge the
expense of transmitting the paper to the clerk of the appellate court,
where that service is performed by him (Code of Civil Pro. § 3291),
and to the fees paid by him for having the same filed by such clerk.
(Id.) It is the appellant’s duty to see that the return is transmitted
to and filed with the clerk of the appellate court; and if he fails
to perform this duty, the respondent may cause it to be transmitted,
and may tax the expense thereof as a disbursement when he recovers
costs. (Id. § 1315.)

If the appeal is taken to the Court of Appeals, the clerk of that
court is entitled to a fee of fifty cents for filing the notice of appeal
and all the papers transmitted therewith. (Id. § 3300.) For
engrossing a remittitur he is entitled two cents for each folio.
(Id.)

In addition to the above fees, the clerk of the court in which the
494 New Trrats anp APPEAL.

 

Notice of taxation or re-taxation.

judgment is entered is entitled to his fees for entering judgment and
for all necessary transcripts thereof.

ARTICLE III.

TAXATION OF COSTS.

SECTION I.

By wxom Costs aRE TO BE TAXED.

5 The Code provides that costs must be taxed by the clerk upon
the application of the party entitled thereto, except that the court
may direct that interlocutory costs, or costs in a special proceeding,
be taxed by a judge. Theclerk must insert in the judgment or final
order the amount of the costs as taxed. In a case where the costs
are in the discretion of the court, the report or decision, or the direc-
tion of the court for final judgment, upon a default, or after a jury
trial, must specify which party or parties are entitled to costs, but
the amount of the costs must be ascertained by taxation. (Code of
Civil Pro. § 3262.)

Under this section all costs are to be taxed by the clerk, unless
the court directs that interlocutory costs, or costs in a special pro-
ceeding, be taxed by a judge.

SECTION II.
Notice or Taxation or Re-TaxaTION.

Costs may be taxed upon notice to the attorney for each adverse
party who has appeared and is interested in reducing the amount
thereof. Notice of taxation must be served not less than five days
before the taxation, unless the attorneys serving and served with the
notice all reside, or have their offices in the city or town where the
costs are to be. taxed, in which case a notice of two days is suflicient.
A copy of the bill of costs, specifying the items, with the disburse-
ments stated in detail, must be served with the notice of taxation.
(Code of Civil Pro. § 3263.) It is the general, if not the universal
practice, to serve the affidavit as to disbursements, etc., required by
Proceepines on Taxation, 495

 

Proceedings on taxation.

 

section 3267 of the Code with the notice of taxation. (Crosley v.
Cobb, 37 Hun, 271.)

Costs may also be taxed without notice. But where they are so
taxed, notice of re-taxation thereof must immediately afterwards be
given, as prescribed in the last section, by the party at whose
instance they were taxed ; in default whereof, the court must, upon
the application of a party entitled to notice, direct a re-taxation, with
costs of the motion, to be paid by the party in default. The court
may, in its discretion, upon the application of a party interested,
direct a re-taxation of costs at any time. Any suin deducted upona
re-taxation must be eredited upon the execution or other mandate
issued to enforce the judgment. (Code of Civil Pro. § 3264.)

Double the time above specified must be given when service of
the notice of taxation or of re-taxation is by mail. (Id. § 798.)

SECTION III.

Procxepines on Taxation.

At the time fixed in the notice, the attorneys for the several par-
ties should appear before the taxing officer and proceed to tax the
costs. The party serving the notice of taxation should present to
the clerk the original bill of costs and disbursements, with the proper
affidavits in support of each item of disbursement. (See Code of
Civil Pro. § 8267; Rule 6, Ct. App.) The party opposing the tax-
ation should file with the clerk specific objections to the allow-
ance of any and all items which he deems the taxing party
not entitled to include in his bill of costs (See Wheeler v. Ruck-
man, 5 Rob. 702, 708), and, in case. the right to include such
items depends upon a question of fact, should file affidavits in sup-
port of his objections. (Cornly v. Mayor of New York, 1 Civ.
Pro. R. 306 ; Logan v. Thomas, 11 How. 160.) In other words, the
parties should put themselves in positiow to review the taxation upon
the evidence before the taxing officer. (Id.) For the requisites of
affidavits used upon the taxation of costs, see Trial Practice, p. 430.

The clerk should decide the questions of facts raised by the con-
flicting affidavits and allow or disallow the items objected to in
accordance with the. facts and the law. (See Crosley v. Cobb, 37
Hun, 271.)

If no one appears to oppose the taxation at the time and place
496 New Trias anp AppEALs,

 

Review of taxation,

specified in the notice, formal proof of the time and manner of the
service of the notice should be filed with the clerk. (See Van Wyck
v. Leeid, 10 How. 366.) Whether the taxation is opposed or not, it
is the duty of the taxing officer to examine the bill presented to him
for taxation ; to satisfy himself that all the items allowed by him are
correct and legal ; and to strike out all charges for fees, other than
prospective charges expressly allowed by law, where it does not
appear that the services for which they are charged were neces-
sarily performed. (Code of Civil Pro. § 3266. See Crosley v. Cobb,
37 Hun, 271; Belding v. Conklin, 4 How. 196; Stimson v. Hug-
gins, 9 How. 86; 16 Barb. 658; eogers v. Rogers, 2 Paige, 458;
Brown v. Windmuller, 14 Abb. N. 8.359; 4 Jones & Sp. 75.) The
clerk should refuse to tax costs unless strictly in accordance with the
Code. It.is his only guide. (Newman v. Greif, 3 Civ. Pro. R.
362.) No greater amount of costs than is allowed by law can be
taxed by the agreement of the attorneys (O’ Keefe v. Shipherd, 23
Hun, 171); and any item of disbursement which the law does not
recognize as a proper charge, should not be taxed under any agree-
ment between the attorneys and the person performing the service.
(See McKeon v. Horsfall, 88 N. Y. 429.)

A charge for the attendance of a witness cannot be allowed with-
out an affidavit stating the number of days of his actual attendance,
and if travel fees are charged, the distance for which they are
allowed. A charge for a copy of a document or paper cannot be
allowed without an affidavit stating that it was aetually and necessa-
rily used, or was necessarily obtained for use. (Code of Civil Pro.
§ 8267; Adams v. Ward, 60 How. 288.) An item of disbursement
in a bill of costs cannot be allowed in any case unless itis verified by
affidavit, and appears to have been necessarily incurred, and to be
reasonable inamount. (Code of Civil Pro. § 3267. See Trial Prac-
tice, 428.)

SECTION IV.

Review or Taxation.

A taxation or a re-taxation may be reviewed by the court upon a
motion for a new taxation. The order made upon a such motion
may allow or disallow any item, objected to before the taxing officer,
in which case it has the effect of a new taxation; or it may direct a
new taxation before the proper officer, specifying the grounds or the
Review or Taxation. 497

 

Review of taxation.

 

proof upon which the item may be allowed or disallowed by him.
(Code of Civil Pro. § 3265; Comly v. Mayor of New York, 1 Civ.
Pro. R. 306. See Trial Bracties, 432.) When the objection pre-
sents a question of law, the Special Term should allow or
disallow the item instead of ordering a new taxation before the
clerk, When the objection presents a question of fact, the Special
Term may determine it, and allow or disallow the item, or it may
direct a new taxation before the clerk, specifying the grounds or the
proof upon which the item may be allowed or disallowed. Upon a
new taxation before the clerk, both parties present their evidence,
either in the form of the original or of new affidavits, and thus retry

the question of fact. (Crosley v. Cobb, 37 Hun, 271.)
a2
CHAPTER XI.

MOTION FOR A NEW TRIAL.

ARTICLE I.

APPLICATION AT THE TRIAL TERM.

SECTION IL

Wuen a Morton ror a New Trist on tae Minutes I8 THE PROPER
Remepy.

Wuersz all the issues in an action pending in the Supreme Court
in a Superior City Court, the City Court of New York, or a County
Court, have been tried by a jury, any party dissatisfied with the
result of the trial may move at the term at which the trial was had
upon the minutes of the presiding judge, for an order setting aside
the verdict and granting a new trial. The motion may be based
upon exceptions taken upon the trial, or upon the ground that the
verdict is for excessive or insufficient damages, or is otherwise con-
trary to law. Whether the motion will be entertained or not rests
wholly in the discretion of the judge presiding at the trial. (Code
of Civil Pro. § 999.) If the motion is entertained it will be heard
and decided by the presiding judge.

But this is not the only remedy of the party. Instead of moving
upon the minutes at the Trial Term, he may wait and make his motion
at the Special Term upon a case (Id. § 1002), or, if he desires only a
review of the exceptions taken by him to the rulings of the judge
upon the trial, he may apply to the judge at the Trial Term for an
order directing that his exceptions. be heard in the first instance at
the General Term, and that the judgment be supended in the mean-
time (id. § 1000), or he may await the entry of judgment and obtain
a review of the questions of law arising on the trial upon an appeal
Morton ror a New Triat. 499

 

Motion for o new trial on the minutes,

 

from.the judgment to the General Term. (Id. § 1346, subd. 2.)
Which remedy the party ought to pursue, will depend principally
upon the character of the supposed error which he secks to review.

A motion for a new trial on the minutes is peculiarly appropriate
when the error complained of is manifest; but if a long argument is
required to make the error apparent, the motion should be made on
a ease. Except in a plain case, a motion for a new trial should be
heard at Special Term, under section 1002 of the Code, on a case
made pursuant to section 997 of that act. (Henman v. Stillwell, 34
Hun, i78.) Ina plain case of error, a motion for a new trial on the
minutes is to be preferred to a motion at Special Term, as it avoids
delay, and is attended with less labor and expense.

An appeal to the General Term from a judgment rendered upon
a jury trial, brings no question of fact before the appellate court
for review. (See ante, p. 335.) So an order directing exceptions to
be heard in the first instance at the General Term, under section
1000 of the Code, brings up only the questions of law arising upon
those exceptions. (See Price v. Keyes, 1 Hun, 177; 3 N. Y. Sup.
Ct. R. [T. & C.] 720; Llotchkiss v. Hodge, 38 Barb. 117; ross v.
Harden, 10 Jones & Sp. 427; Himmons v. Wheeler, 3 Hun, 545.)

Therefore, where a party desires a review of questions of fact
arising on a jury trial itis absolutely necessary that he should move
for a new trial, either at the Trial Term upon the minutes or at the
Special Term upon a ease, in order that if his motion is denied he
may be in a position to bring the questions of fact before the appel-
late court upon an appeal from the order of denial. To this extent,
a motion for a new trial is an indispensable preliminary to asuccess-
ful appeal. (See ante, p. 45.)

A county judge may grant a new trial, upon a motion made upon
his minutes, in an action commenced in a justice’s court and taken
by appeal to the County Court and there retried. (Hinman v. Still-
well, 34 Hun, 178.)

Where specific questions of fact, arising upon the issues in an
action triable by the court, have been tried by a jury, a motion for
a new trial may be made upon the minutes of the judge at the term
at which the trial was had (Code of Civil Pro. §§ 999, 1008); or an
application may be made at the same term for an order directing the
exceptions taken at the trial to be heard, in the first instance, at the
General Term. (Id. §§ 1000, 1003.) Whether either motion shall
be entertained rests wholly in the diseretion of the trial judge.
500 New Triats anp APPEALs.

 

Motion for a new trial,

Where the judge who presided at the trial neither entertains a
motion for a new trial, nor directs exceptions taken at the trial to be
heard at the General Term, a motion for a new trial can be made
only at the term where the motion for final judgment is made, or
the remaining issues of fact are tried, as the case requires. (Id.
§ 1003; Chapin v. Thompson, 80 N. Y. 275 ; 23 Hun, 12; 89 N.
Y. 270.) Unless a motion for a new trial of those issues is made as
above provided before final judgment in the action, no question of
fact involved in the findings of the jury can be reviewed upon an
appeal from the judgment (Chapin v. Thompson, 23 Hun, 12;
Ward v. Warren, 15 Hun, 600); nor ean the exceptions taken
upon such jury trial be considered on a motion for a new trial of the
action made after judgment. (Chapin v. Thompson, 89 N. Y. 270.)
If, however, a motion for a new trial of the issues has been made
before judgment and denied, the moving party may appeal from the
tinal judgment in the action, specifying the order denying the
motion in his notice of appeal, and on such appeal may have a
review of the questions of fact at the General Term. (Chapin v.
Thompson, 23 Hun, 12.)

Although, in an action triable by the court in which specific
questions of fact have been submitted to a jury, a motion for a new
trial may be made upon the minutes of the judge who presided at
the trial; the more usual course is to leave the motion to be made
at the term where the motion for final judgment is made, or the
remaining issues of fact are to be tried. (Jones v. Stewart, 7 Civ.
Pro. R. 164.)

A surrogate may, in his discretion, make an order directing the
trial by a jury, at a Cireuit Court to be held within the county, or
in the County Court of the county, or, in the city and county of
New York, in the Court of Common Pleas, of any controverted ques-
tion of fact arising in a special proceeding for the disposition of the
real property of a decedent as prescribed in title 5 of chapter 18 of
the Code of Civil Procedure. (Code of Civil Pro. § 2547.) A trial
by jury pursuant to an order so made, can be reviewed, in the first
instance, only upon a motion for a new trial. A motion for a new
trial may be granted by the surrogate, or the court in which the
trial took place, or if it took place at the Circuit, by the Supreme
Court, in a case where a new trial of specific questions of fact, tried
by a jury, pursuant to an order for such trial made in an action
would be granted. (Id. § 2548.) An appeal may be taken from the
Motion ror A New Triau. 5O1

 

Motion for a new trial on the minutes,

 

order made upon themotion for a new trial, as if the order had been
made in an action, and with like effect. (Id. § 2541.)

In order to authorize a party to move for a new trial upon the
minutes, a verdict must have been rendered by the jury. The
motion cannot be made where the plaintiff is non-suited or his com-
plaint dismissed. (Add v. Hotchkin, 23 Wun, 414; Van Doren v.
Horton, 19 Hun, 7; Dusenbury v. Dusenbury, 61 How. 482. But
sec Duden v. Waitzfelder, 2 Abb. N. OC. 295; Pollock v. Wanna-
macker, 65 How. 508.)

The grounds upon which a motion for a new trial may be made
upon the minutes of the presiding judge are enumerated in section
999 of the Code, and do not embrace that of surprise. A motion
based upon that ground must be made at Special Term. (Argadl v.
Jucobs, 56 How. 167; 21 Hun, 114; 87 N. Y. 110.)

SECTION II.
Practice on A Motion ror A New Trrat on THE MINUTES.

A motion for a new trial on the minutes is usually made at the
elose of the trial upon the announcement of the verdict of the jury.
When the motion is made at that time, no formal notice need be
given to the adverse party. If the other business before the court
does not permit the judge to hear the motion at that time, he may
direct that the matter stand over to a day later in the term, and the
argument may be brought on without further notice on the day so
fixed.

If the motion is not made at the close of the trial, and the adverse
party is not in court, the moving party may, if necessary, obtain
from the judge an order to show cause why the verdict should not be
set aside and a new trial granted. This order must be returnable on
some day during the term at which the case was tried, as the motion
cannot regularly be made at any subsequent term. (See Code of
Civil Pro. § 999; Thayer Manuf. Co. v. Steinau, 58 How. 315 ;
Ibbotson v. King, 10 Jones & Sp. 207; Ennis v. Broderick, 13
Jones & Sp. 92. Seealso Courteny v. Baker, 60 N. Y. 1.)

It is not necessary to make a case for the purpose of moving for
a new trial upon the minutes of the judge who presided upon a trial
by a jury. (Code of Civil Pro. § 998.) The minutes of the judge
are supposed to contain all that is essential to the proper disposition
502 New Triats anp APPEALS.

 

Verdict contrary to evidence, or against the weight of evidence.

of the motion, and the proceedings on the trial are presumed to be
fresh in the minds of both judge and counsel. Should any question
arise as to what actually occurred, the notes of the stenographer may
be referred to forthe purpose of settling the doubt. The notes of
an official stenographer, or assistant stenographer, taken at the trial,
when written out at length, may be treated, in the discretion of the
judge, as the minutes of the judge upon the trial for the purposes of
this motion. (See Code of Civil Pro. § 1007.)

In moving fora new trial on the minutes, the moving party
should specify the particular grounds upon which his motion is based.
This is necessary not only to enable the judge to intelligently decide
the motion upon the merits, but also to enable him to determine
whether the questions involved are such as can properly be heard
and determined at the Trial Term upon the minutes, or whether they
are such as should be presented to the Special Term upon a case. If
no grounds for the motion are stated, it is not error to deny it ; and
if an appeal is taken from an order of denial, the appellate court will
not cousider questions which were not presented below. (George v.
Jennings, 4 Hun, 66; De Luce v. Kelly, 5 Week. Dig. 82; Gray
v. New York Floating Elevator Co., 18 Week. Dig. 140; Cooke v.
Leonard, 17 Week. Dig. 575; Alfaro v. Davidson, 7 Jones & Sp.
463 ; 8 Id. 289; McAleer v. Corning, 17 Jones & Sp. 522; Hinman
v. Stillwell, 34 Hun, 178.)

The motion, if entertained, is argued before the judge like any
other. contested motion.

SECTION III.
Principtes GoveRNING THE Decision or tHE Morton.

As the object of allowing motions for a new trial npon the min-
utes is to afford a cheap and speedy review of rulings at the Circuit
or Trial Term, that they may be corrected if wrong, it is the duty of
the judge who entertains such motion to examine the questions pre-
sented upon the merits (Pitzgerald v. Quann, 62 How. 331), and if
he is satistied that error was committed on trial, it is his duty to grant
the motion. (Spatz v. Lyons, 55 Barb. 476.)

Verdict contrary to evidence, or against the weight of
evidence.— Where the motion is based upon the single ground that
PrixcipLes Govrerzine THE Decision or Morton. 503

 

Verdict contrary to evidence, or against the weight of evidence,

 

the verdict is contrary to evidence, the motion should be denied
unless it clearly appears that the point is well taken. (Jeowe v. Stev-
ens, 2 Jones & Sp. 436; 44 How. 10; 12 Abb. N.S. 389; 53 N. Y.
621.) It has been repeatedly held that where there is a conflict of
evidence, a failure to move for a nonsuit on trial, or to ask the court
to direct a verdict for the defendant, is an admission that there is suf-
ficient evidence to go to the jury; and that the defendant, is thereby
precluded from moving to set aside the verdict as against evidence.
(Id.; Peake v. Bell, 7 Hun, 454; Sickles v. Gillies, 45 How. 94;
Carnes v. Platt, 4 Jones & Sp. 361; 46 How. 520; 15 Abb. N.S.
387 ; St. John v. Skinner, 3 Jones & Sp. 565 ; 44 How. 198; Caspar
v. O’Brien, 47 How. 80; 15 Abb. N.S. 402. See also Stanton v.
Crispell, 9 Hun, 502, 504; Loss v. Colby, 3 Hun, 546 ; Barrett v.
Third Avenue R. I. Co., 45 N. Y. 628.)

On the other hand, it has been held that the omission of the
defendant to move for a nonsuit or to request that a verdict be
directed in his favor, or to except to the submission of any particu-
lar question to the jury, does not preclude him from moving to set
aside the verdict on the minutes of the judge presiding on the trial
upon the ground that the verdict was founded on insufficient evi-
dence. (Shearman v. Henderson, 12 Han, 170 ; Lucas v. McHnerna,
18 Hun, 14; Helly v. Frazier, 27 Hun, 314.) And it has been held
that where there is no conflict of evidence, the question whether it
is sufficient to support the verdict may be considered upon a motion
for a new trial upon the minutes, and if it is found that the evidence
is insufficient, a new trial may be granted, although no motion was
made on the trial for the dismissal of the complaint or the direction
of a verdict. (Halpin v. Third Avenue R. R. Co., & Jones & Sp.
175; Allgro v. Duncan, 24 How. 210; 39 N. Y. 313.) In the case
last cited, the omission to present the question upon the trial affected
only the terms upon which the new trial was granted. In view of
the conflict of authorities, it is impossible to state the true rule, or
even to assert that any settled rule exists.

Probably if the courts had carefully distinguished between the
discretionary power granted to the trial judge upon motions of this
nature, and the proper mode of exercising such discretion, no con-
flict of authorities would have resulted. The judge has power to
entertain and grant a motion upon his minutes to set aside a verdict
as against the preponderance of conflicting testimony and to grant a
new trial, but the power is to be cautiously exercised. (Algeo v.
504 New Triats anp APPEALS.

 

Verdict contrary to evidence, or against the weight of evidence.

 

Duncan, 39 N. Y. 313; Cheney v. New York Central, ete, R. R.
Co., 16 Hun, 415.) The question whether the power shall be exer-
cised is not controlled by any inflexible rule, but is left to the sound
discretion of the judge upon a careful consideration of the peculiar
circumstances of each case, and the determination of the inquiry
whether substantial justice has be done. (See Barrett v. Third
Avenue R. R. Co., 45 N. Y. 628.) The statute has not imposed
upon the exercise of this discretionary power the condition that a
motion for a non-suit or for the direction of a verdict shall have been
made at the trial and an exception taken to its denial. (See Shear-
man v. Henderson, 12 Hun, 170; Kelly v. Frazier, 27 Hun, 314.)
The power of the Supreme Court to grant a new trial upon the
grounds that the verdict is contrary to evidence, although no excep-
tion was taken at the trial, cannot now be doubted. (See Standard
Oil Co. v. Amazon Ins. Co., 79 N. Y. 506.) But the omission of
the party to present by proper motion at the trial the question of the
sufficiency of the evidence may be a circumstance influencing the
exercise of the discretion of the trial judge on a motion to set aside
the verdict and to grant a new trial, and the absence of an exception
will preclude a review of the question by a strictly appellate court.
(See Barrett v. Third Avenue R. R. Co., 45 N. Y. 628 ; Standard
Oil Co. v. Amazon Ins. Oo., 79 N. Y. 506 ; Dodge v. Mann, 85 N.Y.
643.) And where a motion to set aside a verdict as against the pre-
ponderance of conflicting evidence has been entertained upon the
minutes of the trial judge and denied, the court on an appeal from
the order will not attempt a critical examination of the evidence
with a view to see whether the judge correctly disposed of the
motion. (Jenks v. Van Brunt, 6 Civ. Pro. R. 158.)

As a general rule a new trial will not be granted where the testi-
mony is contradictory, and the character and credit of the witnesses
questioned, on the ground that the verdict is against the weight of
evidence. The verdict can be set aside in such case only where it is
so clearly and manifestly against the preponderance of evidence as tu
furnig: proof in itself that the jury were influenced by passion,
prejudice, corruption, gross ignorance, or mistake. (Morss v. Sher-
rill, 63 Barb. 21; Lonsee v. Hammond, 39 Barb. 893; Culver v.
Avery, 7 Wend. 884; Cothran v. Collins, 29 How. 155; Cheney v.
New York Cent. & Hl. Rk. Rh. R. Co., 16 Hun, 415; Board of
Commissioners of Excise v. Backus, 29 How. 33; Beckwith v. New
York Cent. R. R. Co., 64 Barb. 299; Heritage v. Hall, 33 Barb.
PrincipLes Governing tHE Decision or Morton. 505

 

Verdict contrary to instruction—Excessive or insufficient damages.

 

347; Fleming v. Smith, 44 Barb. 554.) It is not enough to justify
an interference with the verdict, that the judge would have reached
a conclusion adverse to that of the jury as to the force and weight of
the evidence. (Id.)

Verdict contrary to instruction.— When a jury have found a
verdict contrary to the instructions of the court it will be set aside
without regard to legal accuracy of the instructions. (Sroeetman v.
Prince, 62 Barb. 256. But see Zinson v. Welch, 51 N. Y. 244.)
But only the party injuriously affected by the disobedience of the
jury has the right to complain. (Wood v. Belden, 54 N. Y. 658.)

Excessive or insufficient damages.—The Code expressly au-
thorizes the judge presiding at the trial to entertain a motion on his
minutes to set aside the verdict and grant a new trial on the ground
that the verdict is for excessive or insufficient damages. (Code of
Civil Pro. § 999.) This power is frequently exercised in actions on
contract, but rarely in actions for personal tort. As a general rule, a
verdict of a jury will not be disturbed upon the ground that the
damages awarded are excessive or inadequate, where there is no certain
measure of damages, unless there is reason to believe that the jury
have been misled by passion or prejudice, or have been governed by
some bias or improper influence, or have disregarded the law. ( WaAzte-
man v. Leslie, 54 How. 494; Peck v. WV. Y. Cent. & II. R. R. R.
Co., 4 Hun, 236 ; Althouse v. Sharpe, 13 Week. Dig. 478; Thorn v.
Turck, 13 Week. Dig. 550; Ménick v. City of Troy, 19 Hun, 253;
83 N. Y. 514; Bierbauer v. New York Cent. & H.R. Rk. RB. Co.,
15 Hun, 559, 564; Wavle v. Wavle, 9 Hun, 125; Ki v. Youmans, —
2) Hun, 125; Quinn v. dung Island R. R. Co., 34 Hun, 331;
Strohm v. New York, Lake Erie, dc. R. R. Co., 32 Hun, 20;
Houghkirk v. Delaware & Hudson Canal Co., 28 Hun, 407.) Where
the law itself prescribes the rule of damages to which alone the
plaintiff is entitled if he recover, a disregard of the law, and an
award of asum not warranted by the rule is such evidence ef pas-
sion, prejudice, or more frequently of mistake or misapprehension,
as will render it the duty of the court to set aside the verdict. (Me-
Donald v. Walter, 40 N. Y. 551.)

The power of the judge to set aside a verdict upon the ground
that the damages awarded are inadequate, is now expressly given by
the statute, and is to be exercised upon the same principles that
506 New Triats anp APPEALS.

 

Where specific questions of fact have been submitted to a jury.

 

govern a motion to set aside the verdict upon the ground that the
damages awarded are insufficient. (McDonald v. Walter, 40 N. Y.
551; Wavle v. Wavle, 9 Hun, 125.)

A defendant cannot be heard to complain of the insufficiency of
the damages awarded to the plaintiff, unless the amount of the ver-
dict shows a disregard or misapprehension of evidence, which if
properly considered by the jury, would have precluded any recovery
by the plaintiff. (See Scheider v. Corby, 15 Hun, 493; Wolf v.
Goodhue Fire Ins. Co., 48 Barb. 400; 41 N.Y. 620; Horton v,
Bloom, 1 Jones & Sp. 115.) But the fact that the damages awarded
are less than the plaintiff is entitled to, will, as a general rule, fur-
nish a sufficient ground for a motion by the plaintiff to set aside the
verdict, and for an order granting a new trial. (McKeever v. Weyer,
11 Week. Dig. 258.)

Where the jury find for the deferidant, a new trial will not
he granted merely to give the plaintiff an opportunity to recover
nominal damages. (Nolan v. Harris, 52 How. 409; Hopkins v.
Grinnell, 28 Barb. 5388; MeConihe v. New York & Erie R. R.
Co., 20 N. Y. 495; Aberle v. Fajen, 10 Jones & Sp. 217; Reading
v. Gray, 5 Jones & Sp. 79.)

Erroneous admission or exclusion of evidence.—The cases
in which an appellate court will reverse a judgment for error in
admitting or rejecting evidence, have been considered in another
chapter. (See ante, p. 175.) An error of this nature which would
require an appellate court to reverse the judgment on appeal, would
clearly require the trial judge to set aside a verdict on a motion for
a new trial upon the minutes. (See Spatz v. Lyons, 55 Barb. 476.)
On the other hand, an error in admitting or rejecting evidence which
an appellate court would be justified in disregarding on an appeal,
would not be sufficient ground for setting aside the verdict, and
ordering a new trial on a motion made on the minntes.

It is possible that an error of this nature, not pointed ont by any
exception taken upon the trial, might be disregarded upon the
appeal by reason of the failure to except, but might be a proper
ground for granting a new trial on a motion based upon the minutes.
(See Wehle v. Haviland, 42 How. 399; 4 Daly, 550.)

Where specific questions of fact have been submitted to a
jury in an action triable by the court, in a case not specified in sec-
Privcietes Governing THE Decision or Morton. 507

 

Misjoinder of parties—Where no exceptions were taken upon the trial.

 

tion 970 of the Code, a new trial may be granted as to some of the
questions as tried and refused as to the others, and an error in the
admission or exclusion of evidence, or in any other ruling or direc-
tion of the judge upon the trial, may in the discretion of the court
which reviews it, be disregarded, if that court is of the opinion that
substantial justice does not require a new trial to be granted.
(Code of Civil Pro. § 1003.) But this section has no application to
exceptions taken upon the trial of common law actions. (dachen
v. Lamar Ins. Co., 2 Civ. Pro. R. 28.)

Misjoinder of parties.—Where the court, upon the trial of an
action for tort, has erroneously denied a motion for a non-suit as to
one defendant against whom no cause of action was proven, and on
a motion made upon the minutes becomes satisfied that no recovery
can be had against such defendant, and that a new trial could not
change the result, the proper mode of disposing of the motion is to
set aside the verdict as to that defendant, and to direct a non-suit as
tohim. (fitzgerald v. Quann, 61 How. 331.)

An erroneous denial of 2 motion to dismiss the complaint of one
of several joint plaintiffs who has shown no cause of action, is not
a ground ‘for a new trial. Upon a motion for a new trial upon the
ground of error in the denial of the motion to dismiss the complaint
the judge should correct the error by making the order asked for on
the trial, and if no other error appears, should allow the verdict in
favor of the other plaintiffs to stand, and deny the motion for a new
trial. (Sémar v. Canaday, 53 N. Y. 298.)

In a proper case, a new trial may be granted as to one of several
defendants against whom a verdict has been rendered for a tort.
(Seeley v. Chittenden, 4 How. 265.)

Where no exceptions were taken upon the trial.—It wasthe
evident intention of the framers. of the Code to give a remedy by
way of motion for a new trial on the minutes for errors falling within
two general classes: 1. Errors committed by the judge in his rulings
on the trial to which the moving party had excepted. 2. Errors
committed by the jury in arriving at their verdict to which no
exception could be taken.

Where the error fell within the first class, it was intended that
the motion should be based upon the exceptions actually taken. It
has been considered very questionable whether the provision of the
508 New Triats ano APppPEALs.

 

Terms imposed in granting the motion—Costs.

present Code authorizing a motion on the minutes to set aside a ver-
dict because it is contrary to law, was intended to embrace a motion
based upon an error in the charge to which no exception was taken,
and which, if the attention of the trial judge had been directed to it
by an exception, might have been corrected at the trial. (J2obson v.
New York Central & H. R. R. R. Co., 21 Hun, 387.) But it has
been held that where an improper rule of damages has been laid
down in the charge of the presiding judge, and a motion is made for
a new trial on the ground that the damages given are excessive and
clearly unauthorized, a new trial may be granted, even though there
be doubt as to whether an exception was taken to the charge.
(Wehle v. Haviland, 42 How. 409; 4 Daly, 550; De Lavalette v.
Wendt, 11 Hun, 432. See Costello v. Syracuse, etc., R. R. Co., 65
Barb. 92,105; Benedict v. Johnson, 2 Lans. 94; Lattimer v. Hill,
8 Hun, 171; Standard Oil Co. v. Amazon Ins. Co., 79 N. Y. 506.)

It is perhaps immaterial whether the error of the jury was occa-
sioned by the erroneous instructions of the court or by their own
misapprehension of the law. If the verdict is contrary to law, the
party aggrieved is entitled to have it set aside on a motion for a new
trial on the minutes although he has taken no exceptions... (Zate v.
McCormich, 23 Hun, 218.)

Terms imposed in granting the motion.—It may be stated
as a general rule that where the motion for a new trial is based solely
upon an error of the jury in rendering a verdict against evidence, it
will be granted only on payment of costs of the former trial:
(Murphy v. Haswell, 65 Barb. 380; Ward v. Woodburn, 27 Barb.
346; North v. Sergeant, 33 Barb. 350; 14 Abb. 223; 20 How. 519;
East River Bank v. Hoyt, 22 How. 478; Kelly v. Frazier, 27 Hun,
314; Bailey v. Park, 5 Hun, 41; Overing v. Russell, 28 How. 151;
Bank of Utica v. Ives, 17 Wend. 501; Brown v. Bradshaw, 1
Duer, 199; Jackson v. Thurston, 3 Cow. 342; Wilson v. Lester, 64
Barb. 481.) But where the moving party bases his application upon
some error in the ruling of the trial judge, the new trial may be
granted with costs to abide the event. (See Trial Practice, 510.)

Costs.—On a motion for a new trial on the minutes motion costs
may be allowed or denicd im the diseretion of the court. (Vauga-
tuck Cutlery Co. v. Rowe, 5 Abb. N.C. 142.) No trial fee can be
allowed. (Id. But see Muller v. Higgins, 44 How. 224; 13 Abb.
Excerrtions HEARD AT GENERAL TERM. 509

 

Re-hearing— Outlines of procedure.

 

N.S. 297.) As these costs are discretionary, they cannot be recov-
ered unless expressly awarded. If the motion is denied, and the
memorandum of the decision of the jndge is silent as to costs, an
order entered thereon denying the motion, with costs, is unauthor-
ized and erroneous, and must be corrected on a motion by the
defeated party to strike out the provision as to costs. On the motion
to strike out the unauthorized allowance, the judge has no jurisdic-
tien to exercise the discretion which he possessed when the motion
for a new trial was made, and cannot award costs of that motion by
approving the order as entered. (Stegrist v. Holloway, 7 Civ. Pro.
Kt. 58.)

Re-hearing.—The entry of an order granting a motion for a
new trial on the minutes does not prevent the judge from permit-
ting a re-argument upon the same papers, and, on such re-argument,
vacating the former order, and denying the motion. (Herzig v.
Metzger, 62 How. 355.)

 

SECTION IV.
Motion tHat Excertions BE HEARD AT GrneraL TERM.

Outlines of procedure.—Upon the application of a party who
has taken one or more exceptions, the judge presiding at a trial by a
jury may, in his discretion, at any time during the same term, direct
an order to be entered that the exceptions so taken, be heard in the
first instance, at the General Term, and that judgment be suspended
in the meantime. At any time before the hearing of the exceptions
the order may be revoked or modified, upon notice, in court or out
of court, by the judge who made it; or it may be set aside for irreg-
ularity by the court at any term thereof. Unless it is so revoked or
set aside, the exceptions must be heard upon a motion for a new
trial, which must be decided by the General Term. The motion is
deemed to have been made when the order was granted ; and either
party may notice it for hearing at the General Term, upon the
exceptions. (Code of Civil Pro. § 1000.) This procedure is also
authorized where one or more specific questions of fact, arising upon
the issues in an action triable by the court have been tried by a
jury. (Id. § 1003.)

The procedure to reach a decision of a motion for a new trial
510 New Trrscs.anp APPEALS.

 

Motion that exceptions be heard at General Term.

under section 1000 of the Code is somewhat peculiar. The trial
judge is given the exclusive power to determine whether a party
shall be allowed to move at the General Term for a new trial, upon
the exceptions taken by him upon the trial, or whether this privi-
lege shall be denied, and the party left to his remedy by way of
motion at the Special Term. (Beattie v. Niagara Savings Bank,
41 How. 187; 50 N. Y. 685.) If the trial judge is of the opinion
that the questions presented by the exceptions are of sufficient ditti-
enlty and importance to require a submission, in the first instance, to
the consideration of the General Term, he directs the entry of an
order that the exceptions be there heard, and that judgment be sus-
pended in the meantime. Subject to the power of the judge to
revoke or modify this order, his jurisdiction in the matter ceases
with the granting of the order, and a motion for a new trial upou
the exceptions is deemed to be pending at the General Term, and
may be brought to a hearing by either party. The General Term
then determines whether a new trial shall be granted to the moving
party. If the General Term grants the motion, the action then
goes back to the Circuit or Trial Term for the new trial. If the
motion is denied, the order of the General Term is duly entered, a
copy thereof with notice of the entry is served upon the attorney
for the adverse party, and, four days thereafter, judgment may be
entered as if the motion for a new trial had not been made. (See
Code of Civii Pro. § 1227.) On an appeal from this judgment to
the General Term, there can be no review of the order denying the
motion for a new trial; but on an appeal to the Court of Appeais
from the determination of the General Term upon the appeal from
such judgment the denial of the new trial may be reviewed. (Id.
§ 1350.)

From the decision of the trial judge denying the motion that
exceptions be heard, in the first instance, at General Term, no appeal
will lie. (Beattie v. Niagara Savings Bank, 41 How. 187.)

The application to the trial judge must be made at the term
at which the cause was tried. Ordinarily, the motion is made at the
close of the trial, and in such case no notice of the application need
be given to the adverse party. If it is not made at that time, it may
be necessary to obtain an order to show cause why the relief sought
should not be granted. The statute seems to contemplate that the
EXcEPTIONS HEARD AT GENERAL TERM. 511

 

Decision of the motion.

 

motion shall be made before the entry of judgment. (But see Code
of Civil Pro. § 1005.)

The order may be made after the denial of a prior motion for a
new trial on the minutes of the judge, or on the hearing of such mo-
tion. (Garner v. Mangam, 14 Jones & Sp. 365. But see Byrnes
v. Delaware & Hudson Canal Co., '7 Week. Dig. 549.) The motion
is usually made somewhat informally and is based solely upon the
exceptions taken upon the trial.

Decision of the motion.—An order directing exceptions to be
heard in the first instance at the General Term should not be made
unless in cases of the highest importance or of absolute necessity.
(Beattie v. Niagara Savings Bank, 41 How. 137.) Where the court
has disposed of all the plaintiff's rights by directing a nonsuit at the
trial, and the propriety of this disposition of the case depends upon
important questions, a proper case is presented for suspending judg-
ment and directing that the plaintifi’s exception be heard at the
General Term. (Jfolony v. Dows, 9 Abb. 86; Lake v. Artisan’s
Bank, 3 Abb. N. 8. 209; 3 Keyes, 276; Brown v. Aruger, 8
Haun, 625.)

Before the amendinent of section 1000 of the Code in 1882, the
statute provided for an order directing exceptions to be heard at the
General Term, “and that judgment upon the verdict be suspended
in the meantime.” Under this section, as it then stood, it was held
that the court could not order an exception to a nonsuit to be heard
in the first instance at the General Term and suspend judgment in
the meantime, as, there being no verdict, there was nothing to sus-
pend. (Seely v. New York Cent. &@ H. R. Rh. R. Co., 25 Hun,
280.) The amendment of 1882 consisted in striking out the words
“upon the verdict,” and thus destroyed the force of the reasoning
in the case cited.

A county judge has no power tu order an exception to a nonsuit
directed by him to be heard in the first instance at the General
Term of the Supreme Court, and that judgment be in the meantime
suspended. (Johnson v. New York, Ontario & W. &. Le. Co., 30
Hun, 166.) And it is donbtful if the statute was intended to apply
to exceptions taken upon the trial at the Circuit of issues of fact after
a reversal by tlre Supreme Court of a surrogate’s decree. (See
Webster v. Cole, 17 Hun, 507.)

If the trial judge grants the motion, a formal order shonld be
512 New Triats anp APPEALS.

 

Motion at General Term for new trial,

 

drawn up and entered (See Webster v. Cole, 17 Hun, 507) at some
time during the term, directing that the exceptions be heard in the
first instance at the General Term, and that judgment be suspended
in the meantime. Merely directing that the exceptions be heard at
the General Term will not suspend the entry of judgment. This
should be expressly directed in the order. (Douglass v. Haberstro, 62
How. 29. See Code of Civil Pro. § 1005.)

Notwithstanding the entry of the order granting the motion, it
may be revoked or modified at any time before the hearing of the
exceptions upon an application, made upon notice, to the trial judge
in court or out of court, or it may be set aside for irregularity by the
court at any term thereof. (Code of Civil Pro. § 1000.) An order
at the circuit directing a case and exceptions to be heard in the first
instance at the General Term, may be vacated at Special Term, and
permission given to move for a new trial upon the case and excep-
tions at Special Term. (Post v. Hathorn, 54 N. Y. 147.)

The proceedings preparatory to the motion at the General Term
and the practice on the motion will be discussed in the next article.

ARTICLE II.

MOTION AT GENERAL TERM FOR A NEW TRIAL.

SECTION I. -
Waen Soca Morton 1s AvTHoRIZzED.

Where the. judge presiding at a trial by jury has directed the
entry of an order that the exceptions taken upon the trial be heard in
the first instance at the General Term, and that judgment be sus-
pended in the meantime, a motion for a new trial upon the excep-
tions, to be heard and determined at the General Term, is deemed to
be pending from the time of the granting of the order, and unless
the order is revoked or set aside, the motion must be decided by the
General Term. (Code of Civil Pro. § 1000.) Such an order may
be made where all the issues have been tried by a jury, or where
specified questions or facts arising upon the issues in an action triable
by the court have been submitted to a jury and one or more excep-
tions have been taken on such trial. (Id. § 1008.) The foregoing
.

Motion at GENERAL Term ror New Tria. 513

 

When such motion is authorized.

 

sections of the Code are the only authority given for a motion at
General Term for a new trial where there has been a trial by jury.

The Code further provides that:

“Where the decision or report, rendered upon the trial of an
issue of fact by the court, without a jury, or by a referee, directs an
interlocutory judgment to be entered; and further proceedings must
be taken, before the court, or a judge thereof, or a referee, before a
final judgment can be entered ; a motion for.a new trial, upon one
or more exceptions, may be made at the General Term, after the entry
of the interlocutory judgment, and before the commencement of the
hearing directed therein. The time within which the party must
except, for that purpose, to a ruling of law, made, upon such a trial,
by the judge or the referee, after the close of the testimony, is ten
days after service of a copy of the decision or report, and notice of
the entry of the interlocutory judgment thereupon.” (Code of Civil
Pro. § 1001.) This section of the Code is the only authority for a
motion at General Term for a new trial where there has been a trial
without a jury.

The sections of the Code above cited form a part of title 1 of
chapter 10 of that act, and this title is declared applicable to pro-
ceedings in the Supreme Court, in a Superior City Court, in the
City Court of New York, or in a County Court. (Code of Civil
Pro. § 3847, subd. 7.) It was said in one case that a County Court
has no General Terms, and therefore has no power to order an
exception to a nonsuit to be heard in the first instance at the General
Term, and to suspend judgment in the meantime, under section
1000 of the Code. (Johnson v. New York, Ontario & Western I.
&. Co., 30 Hun, 166.) All that the case actually decided was that
an order of a county judge directing exceptions taken in his court to
be heard in the first instance at a General Term of the Supreme
Conrt was unauthorized or not within the contemplation of the
framers of the Code. But that act provides that each provision con-
ferring power upon, or authorizing a proceeding to be taken at, a
General, Special, or Trial Term,which is applicable to a County Court
is to be construed as applying to any term of the County Court held
pursuant to an appointment made as prescribed by law. (Code of
C.vil Pro, § 8342.) Under this rule of construction, a motion for a
new trial upon exceptions taken upon the trial of an action in a
County Court may be made, under sections 1000, 1001 of the Code,
514 New Triats anp APpPEALs.

 

Making a case.

 

at any regularly appointed term of the County Court. (See Kilmer
v. O' Brien, 13 Hun, 224, 226.)

SECTION II.
Proctevines Berorrt ARGUMENT.

Making a case.—The Code provides that “Where a party
intends to appeal from a judgment, rendered after the trial of an issue
of fact, or to move for a new trial of such an issue, he must, except
as otherwise prescribed by law, make a case, and procure the same
to be settled and signed, by the judge or the referee, by or before
whom the action was tried as prescribed in the general rules of prac-
tice; or, in case of death or disability of the judge or referee, in such
manner as the court directs. The case must contain so much of the
evidence, and other proceedings upon the trial, as is material to the
questions to be raised thereby, and also the exceptions taken by the
party making thecase. If it afterward becomes necessary to sepa-
rate the exceptions, the separation may be made, and the exceptions
may be stated, with so much of the evidence and other proceedings,
as is material to the questions raised by them, in a case, prepared
and settled, as directed in the general rules of practice; or, in the
absence of directions therein, by the court, upon motion. It is-not
necessary to state, in a case, that a finding upon the facts, or a ruling
upon the law, was made, where the finding or ruling appears in a
referee’s report, or in the decision of the court, upon a trial by
the court without a jury.” (Code of Civil Pro. § 997.)

Under this provision of the Code, a party intending to move at
General Term for a new trial must make and serve a proposed case
and exceptions, have the same settled and signed by the jndge or
referee, and cause the same to be filed within the time fixed by the
general rules of practice, or writhin such further time as may be
allowed by the court or judge. The case, as settled, must be printed
in accordance with the general rules of practice. (See Rule 42.)
It is the duty of the moving party to make and print the case. (See
Sperling v. Conner, 2 Law Bull. 25; Luce v. Morrison, Id. 95.)

If the trial was before a jury the moving party must make and
serve his case and exceptions within ten days after the trial ; and if the
trial was before the court or a referee, he musi muke and serve the
same within ten days after service of the decision or report, and ot
Motion at GrEnreraL Term ror New TRI. 515

 

Stay of proceedings.

 

written notice of the entry of the interlocutory judgment thereon.
(See Rule 32.)

The practice and proceedings in respect to making, serving, set-
tling, signing, filing and printing the case are the same as on an
appeal to the General Term. (See ante, pp. 187-155.)

Where the motion for a new trial is made under section 1001 of
the Code, and the moving party relies upon the exceptions to rulings
of law made by the judge or referee after the close of the testimony,
he must file his exceptions in the clerk’s office, and serve a copy
thereof upon the attorney for the adverse party within ten days after
service of a copy of the decision or report and notice of the
entry of the interlocutory judgment thereon. (Code of Civil
Pro. §§ 994, 1001.) The taking of the exception must necessarily
precede the statement of it in the case, and as the time limited for
taking the exception and serving the case is the same, it may be
necessary for the moving party to abridge the time allowed by law
for excepting, or to obtain an extension of time to make and serve
acase. (See ante, p. 140.)

Stay of proceedings.— Where a motion for a new trial is to be
made at General Term under an order of the judge presiding at a
jury trial as prescribed in section 1000 of the Code, the order will
provide for a stay of the entry of judgment until the decision of the
motion, and no other application for a stay of proceedings will be
required. But when the motion is based upon exceptions taken
upon the trial of an action before a referee or before the court with-
out a jury, a stay of all other proceedings in the action until the
decision of the motion may be necessary. The Code provides that
the motion for a new trial, in such case, must be made before the
commencement of the further proceedings directed by the inter-
locutory judgment (Code of Civil Pro. § 1001; Church v. Kidd,
3 Hun, 254; Produce Bank v. Morton, 10 Jones & Sp. 124); and
as such further proceedings will not be stayed by the mere taking of
an exception, the preparation or settlement of a case, or a motion for
a new trial, unless an order for such a stay is procured and served
(See Code of Civil Pro. § 1005), a failure to procure such order
may be fatal to the relief sought.

The order to stay proceedings pending the decision of the motion
may be made ew parte, or upon notice; but as an order to stay pro-
ceedings in an action for a longer time than twenty days cannot be
516 New Triats anp APPEALS.

 

Papers and points for the court and adverse party.

 

made by a judge out of court, except to stay proceedings under a
judgment or order appealed from, or where it is made upon notice
of the application to the adverse party, or in a case where special
provision is otherwise made by law (Id. § 775), it will generally be
advisable to give the usual notice of motion, or, if this is not prac-
ticable, to obtain an order to show cause. (See Trial Practice,
p- 86.) The order when granted should be entered in the proper
county, and a certified copy should be served upon the attorney for
the adverse party.

Noticing the motion for hearing.—Where the motion for a
new trial is based upon exceptions taken upon a trial by jury, either
party may notice it for hearing at the General Term upon the excep-
tions. (Code of Civil Pro. § 1000.) Where the motion is based on
exceptions taken on a trial before the court or a referee, it is
properly brought to a hearing upon the notice of the exceptant
The motion is among those classed as enumerated (Rule 38), and
should therefore be noticed for the first day of the term at least
eight days before the commencement of the term. (Rule 40.) In
the Superior Court of the City of New York a motion for a new
trial upon exceptions ordered to be heard at the General Term can
be made on four days’ notice on any motion day in term for which it
can be noticed, at the opening of the court. (Rule 4, Supr. Ct.)

Papers and points for the court and adverse party.—The
rules:of court provide, that the papers to be furnished on enumer-
ated motions shall be a copy of the pleadings, when the question
arises on the pleadings or any part thereof, or of such parts only as
relate to the questions raised by the demurrer; a copy of the special
verdict, return or other papers on which the question arises. And
the party whose duty it is to furnish the papers shall serve a copy
upon the opposite party, except upon trial of issues of law, at least
eight days before the time for which the matter may be noticed for
argument. Ifthe party whose duty it is to furnish the papers shall
neglect to do so, the opposite party shall be entitled to move, on
affidavit, and on four days’ notice of motion, that the cause be struck
from the calendar (whichever party may have noticed it for argu-
ment), and that judgment be rendered in his favor. The papers
shall be furnished by the plaintiff, when the question arises on
special verdict, and by the party demurring, or appealing in cases of
Motion at GrneraL Term ror New TRIAL. 517

 

Notes of issue,

 

demurrer, and in all other cases by the party making the motion.
Each party shall prefix to his points a concise statement of the facts
of the case, with reference to the folios; and if such statement is
not furnished, no discussion of the facts by the party omitting such
statement will be permitted. (Rule 40.) All these papers must be
printed in the same manner as on appeal. (Rule 42:)

In each cause heard at a General Term of the Supreme Court
the attorney or counsel for each party must deliver to the clerk for
the use of the Supreme Court reporter, a duplicate of each paper
furnished by him for the use of the court. (Laws of 1875, chap.
131.)

The rules of the Superior Court of New York require that the
printed papers, inclusive of points, in exceptions ordered to be heard
at the General Term, shall be filed and served within the time pre-
scribed by Rule 41 of the “ Rules of Court.” (Rule 4.)

Notes of issue.—A note of issue must be filed eight days before
the commencement of the court at which the cause may be noticed.
(Rule 39.) The requisites of a note of issue have been noticed else-
where. (See anie, p. 317.)

SECTION III.
PROCEEDINGS ON THE ARGUMENT.

The proceedings on the argument of a motion for a new trial
upon exceptions are substantially the same as on the argument of an
appeal at the General Term. (See ante, p. 328.)

SECTION IY.
Princretes Governing THE Decision or tae Morton.

Upon a motion for a new trial upon exceptions ordered to be
heard in the first instance at General Term, all controverted ques-
tions of fact are to be regarded as settled by the verdict of the jury,
and neither the General Term, nor the Court of Appeals on appeal
from the order of the General Term, will consider the weight of evi-
dence, or set aside the verdict on the facts, unless there was such an
absence of evidence to support a material finding that the court can
518 New Triats anp APPEALS.

 

Costs,

determine as a matter of law that the fact found was unproved.
(Metropolitan Nat. Bank v. Sirret, 97 N. Y. 320. See also Price
v. Keyes, 1 Hun, 177; Hotchkins v. Hodge, 38 Barb. 117.) No
questions can be passed upon except those arising upon exceptions
duly taken to some decision made upon the trial or in the final dis-
position of the case. (Emmons v. Wheeler, 3 Hun, 545.) So where
the trial was by the court or by a referee, the motion must be based
upon one or more exceptions, and hence can present only questions
of law. (Raynor v. Raynor, 94 N. Y. 248.)

lf the exceptions are well taken, and the error pointed out by
them resulted to the prejudice of the moving party, a new trial
will be ordered. If the court is satisfied that no error was commit-
ted the motion will be denied. In equity cases, a new trial will not
be ordered merely on the ground that proper evidence was rejected
at the trial, if on all the facts and circumstances the court is satisfied
that the result ought not to have been different if the evidence had
been received. (Matter of NV. Y. Cent. & H.R. RB. R. Co.,90 N.Y.
342.) When it can be seen that the admission or rejection of evi-
dence could not legitimately affect the result, the error will be disre-
garded; but when this does not so appear, the court cannot disregard
the error whether the action is legal or equitable. (JZobart v. Hobart,
62 N. Y. 80; Holcomb v. Holcomb, 95 N. Y. 316, 329; Foot v.
Beecher, 78 N. Y. 155. See ante, p. 175.)

SECTION V.
Costs.

When the party moving for a new trial at the General Term is
awarded costs, he is entitled to tax them at the following rates:

For making and serving a case, twenty dollars; and where the
case necessarily contains more than fifty folios, ten dollars in addition
thereto.

Before argument, twenty dollars.

For argument, forty dollars. (Code of Civil Pro. § 3251.) He
may also be entitled to tax one or more term fees.

Where costs are awarded to the party opposing the motion he is
entitled to tax the same at the following rates:

For making and serving amendments to the case, ten dollars.

Before argument, twenty dollars.

s
Morton at SrecraL Term ror A New Tria. 519.

 

When such motion is authorized.

 

For argument, forty dollars. He may also be entitled to tax one
or more term fees. (Id.)

ARTICLE III.

MOTION AT THE SPECIAL TERM FOR NEW TRIAL.

SECTION I.
Wuen Svuciu Morton 1s Auruorizep.

A motion to set aside the verdict of a jury, and for a new trial,
may be made upon the minutes of the judge presiding at the trial,
and may, in his discretion, be heard at the term at which the trial was
had, upon exceptions, or because the verdict is for excessive or insuf-
ficient damages, or otherwise contrary to the evidence or contrary to
law. (Ane, p. 498.) .A motion may also be heard at the Trial Term,
in the discretion of the judge presiding at a trial by a jury, for an
order directing that the exceptions taken upon such trial be heard in
the first instance at the General Term on a motion for a new trial,
(Ante, p. 509.) So where the decision or report, rendered upon the
trial of an issue of fact by the court, without a jury, or by a referee
directs an interlocutory judgment to be entered, and further pro-
ceedings must be taken before the court, or a judge thereof, or a
referee, before final judgment can be entered, a motion for a new
trial, upon one or more exceptions, may be made at the General
Term, after the entry of interlocutory judgment, and before the com-
mencement of the hearing directed therein. (Anf#e, p. 513.) In any
other case, a motion for a new trial must, in the first instance, be
heard and decided at the Special Term ; but where it is founded upon
an allegation of error, in a finding of fact, or ruling upon the law,
made by the judge upon the trial, it cannot be made unless notice
thereof be given before the expiration of the time within which an
appeal can be taken from the judgment, and it cannot be heard at a
Special Term held by another judge, unless the judge who presided
at the trial is dead, or his term of office has expired, or he specially
directs the motion to be heard before another judge. And a trial by
areferee cannot be reviewed by a motion for a new trial, founded
upon an allegation of error in a finding of fact or a ruling upon the
520 New Triats anp APPEALS.

 

When such motion is authorized.

 

law made by the referee upon the trial, except in a case specified in
section 1001 of the Code. (Code of Civil Procedure, § 1002.)

In an action triable by the court, where specific questions of fact
arising upon the issues have been tried by a jury, and the judge who
presided at the trial has neither entertained a motion for a new trial,
nor directed exceptions taken upon the trial to be heard at the Gen-
eral Term, a motion for a new trial of such issues can be made only
at the term where the motion for final judgment is made or the
remaining issues of fact are tried, as the case requires. (Id. § 1003.)

In an action triable by the court, where a reference has been
made to report upon one or more specific questions of fact involved
in the issue, a motion for a new hearing may be made at a Special
Term, at any time before the hearing of a motion for final judgment,
or the trial of the reinaining issues of fact. (Id. § 1004.)

Motions for a new trial upon the ground of surprise or newly
discovered evidence can only be made at the Special Term. (Mew-
hall v. Appleton, 14 Jones & Sp. 6; Argall v. Jacobs, 56 How. 167;
Knickerbocker Ice Co. v. Mayor, 3 Law Bull. 6.) The Code does
not attempt to define the grounds upon which a motion for a new
trial may be made at the Special Term. The fact that the party
might have moved upon the minutes of the judge presiding at the
trial will not debar him of the right to make his motion at the
Special Term. He may move the Special Term for a new trial upon
exceptions, upon the ground that the verdict is against the weight of
evidence, that it is for excessive or insufficient damages, or otherwise
contrary to the evidence or to law, or upon the ground of surprise,
newly discovered evidence, misconduct of the jury, or other ground
heretofore recognized as a ground of motion for a new trial. (See
Mayor v. Fiegel, 38 How. 424.) The right of a party to move for
a new trial at Special Term on a case cannot be taken from him by
an order of a trial judge directing exceptions to be heard in the first
instance at the General Term. (Post v. Hathorn, 54 N. Y. 147.)
Under the old Code it was held that where such an order had been
made, and while it continued in force, the Special Term could not
entertain and dispose of a motion for a new trial. (Price v. Keyes,
1 Hun, 177.) But the present Code provides that the taking of an
exception upon the trial by a jury, or the statement thereof in a case,
does not prejudice a motion for a new trial on the ground that the
verdict was contrary to evidence ; but such a motion may be made
before or after the hearing of the exception, or, in the discretion of
Morton at Spectra, Term ror A New Tria. 521

 

New trial of the action.

 

the court before whom the exception was heard, at the time of the
hearing. (Code of Civil Pro. § 1006.) If exceptions are heard at
the General Term, no question can be there raised as to whether the
verdict was rendered without or against the evidence (Price v.
Keyes, 1 Hun, 177); andif the motion is there denied, the defeated
party, under the provision of the Code above cited, may still move
at Special Term for a new trial on the ground that the verdict is con-
trary to evidence. In the four days which must intervene between
the entry of the order of the General Term denying the motion for
a new trial and entry of judgment in the action (see Code of Civil
Pro. § 1227), an order nay be obtained staying procecdings until the
hearing of the motion at Special Term; but this is not strictly neces-
sary, as the entry, collection or other enforcement of the judgment
will not prejudice a subsequent motion for a new trial, and if suc-
cessful on the motion the party has the same right to restitution as in
case of a reversal of a judgment on appeal. (Id. § 1005.) If the mo-
tion at the Special Term is brought to a hearing before the hearing
of the exceptions at the General Term, and is denied, the defeated
party may still prosecute his motion at the General Term upon his
exceptions ; and if the motion at Special Term is granted, the party
may then move, on notice, to have the order sending the exceptions
to the General Term pegeed: (Id. 8 1000.) If the exceptions were
heard at the Trial Term upon the minutes of the presiding judge,
and a new trial was there denied, the defeated party may still move
at Special Term for a new trial on the ground that the verdict is con-
trary to evidence (Id. § 1006), either before or after the entry of
judgment. (Id. § 1005.) But questions which the trial judge has
passed upon on a motion made upon his minutes cannot be reviewed
ona motion for a new trial made at a Special Term held by another
justice. (Anapp v. Post, 10 Hun, 35.)

SECTION ILI.
WHEN AND aT wHaTtT Term THE MoTION MAY BE MADE.

New trial of the action.—A motion for a new trial of the action
may be made before or after the entry of judgment (Code of Civil
Pro. § 1005) ; but where it is founded upon an allegation of error in
a finding of fact, or a ruling upon the law, made by the judge upon
the trial, it cannot be made unless notice thereof be given before the
522 New Trtats ann Apprats.

 

New trial or hearing of specific questions of fact.

 

expiration of the time within which an appeal can be taken from the
judgment ; and it cannot be heard at a Special Term held by another
judge, unless the judge who presided at the trial is dead, his office
has expired, or he specially directs the motion to be heard before an-
other judge (Id. § 1002); and a motion for a new trial founded upon
an allegation of error in a finding of fact, or a ruling upon the law,
made by a referee upon the trial of an issue of fact before him, can
be made only where the report directs an interlocutory judgment to
be entered, and further proceedings must be taken before the court,
or a judge thereof, or a referee, before final judgment can be entered,
and then only where the motion is made after the entry of the inter-
locutory judgment and before the commencement of the hearing
directed therein. (Id. §§ 1001, 1002.)

New trial or hearing of specific questions of fact.—Section
1005 of the Code, authorizing a motion for a new trial after the entry
of judgment, has reference to a new trial of the action, and not toa
new trial of specific questions of fact therein which have been sub-
mitted to a jury or referred. (See Chapin v. Thompson, 80 N. Y.
275.) Where specific questions of fact arising on the issnes in an
equity case are tried by a jury, and the judge presiding at the trial
neither entertains a motion for a new trial nor directs exceptions
taken at the trial to be heard at the General Term, a motion for a
new trial can be made only at the term where the motion for final
judgment is made, or the remaining issues of fact are tried, and
before such judgment. (Code of Civil Pro. § 1003 ; Chapin v. Thomp-
son, 80 N. Y. 275; 89 N. Y. 270; 23 Hun, 12.) So in an action tri-
able by the court, where a reference has been made to report upon
one or more specific questions of fact involved in the issue, a motion
for a new hearing may be made at a Special Term, at any time before
the hearing of a motion for final judgment, or the trial of the
remaining issues of fact. (Code of Civil Pro. § 1004.) So where a
reference or a writ of inquiry, directed as prescribed in section 1015
or section 1215 of the Code, has been executed, either party may
apply for an order directing a new hearing, or a new writ of inquiry,
upon proof, by affidavit, that error was committed to his prejudice
upon the hearing, or in the report, or upon the execution of the writ,
or in the inquisition. In a proper case, the application may be
granted after judgment has been entered. In that case, the judg-
ment may be set aside, either then, or after the new hearing,
Motion at Sprora, Term ror a New Triat. 528

 

The motion papers.

 

or the execution of the new writ, as justice requires (Code of
Civil Pro. § 1232).

SECTION III.
Tue Morton Papers.

Where a party intends to move for a new trial at the Special
Term upon an allegation of irregularity or surprise, a case is not
required, (Code of Civil Pro. § 998.) This motion should be based
upon affidavits and such other papers as will establish the irregular-
ity or surprise complained of.

A motion for a new hearing of specific questions of fact, arising
upon the issnes in an equity action which have been tried by a
referee, may be made upon affidavits, unless the court, or a judge
thereof, directs a case to be prepared and settled. (Code of Civil
Pro. § 1004.) Where an application is made for a new hearing, ora
new writ or inquiry, after the execution of a reference or a writ of
inquiry, directed as prescribed in section 1015 or section 1215 of the
Code, the motion must be made upon affidavits furnishing proof
that error was committed to the prejudice of the moving party upon
the hearing, or in the report, or upon the execution of the writ, or
in the inquisition. (Id. § 1232.) ©

In every other case, a party intending to move at Special Term
for a new trial of an issue of fact, must make a case, and procure the
same to be settled and signed by the judge or referee, by or before
whom the action was tried, as prescribed in the general rules of
practice; or in case of the death or disability of the judge or referee,
in such manner as the court directs. (Id. § 997.)

The general rules of practice provide, that “ whenever any
specific questions of fact involved in an action, or any question of
fact not put in issue, is ordered tried by a jury as a substitute for a
feigned issue, and has been tried, or a reference other than of the
whole issue has been ordered under the Code and a trial had, if
either party shall desire to apply for a new trial, on the ground of
any error of the judge or referee, or on the ground that the verdict
or report is against evidence (except where the judge directs such
motion to be made upon his minutes at the same term or court at
which the issues are tried), a case or exceptions shall be made, or a
case containing exceptions shall be served and settled in the manner
524 New Triats anp APPEALS.

 

Newly discovered evidence.

 

prescribed by the rules of court for the settlement of cases and
exceptions in other cases. Such motions shall be made, in the first
instance, at Special Term.” (Rule 31.) This rule does not seem to
be in harmony with either section 1004 or section 1232 of the Code
of Civil Procedure.

Where a motion for a new trial is made at a Special Term upon
the ground that the verdict is contrary to Jaw, it must be brought to
a hearing upon a case; and the trial judge cannot dispense with this
requirement by an order made by him after the expiration of the
Trial Term, directing that the motion be heard upon his minutes.
(Lhayer Manufactaring Co. v. Steinau, 58 How. 315.) Where the
motion is based upon the ground of newly discovered evidence, a case
must be made, and the motion will not be heard upon affidavits only.
(Anonymous, 7 Wend. 331; Sproul v. Resolute Fire Ins. Co.,1
Lans. 71; Hosley v. Colerick, 3 How. N. 8. 169.)

If the motion is made upon the ground of the misconduct of a
juror, it must be heard either upon a case settled, or affidavits, or
both. (See Pawlitsch v. New York Cent. & H.R. R. &. Co., 19
Week. Dig. 73 ; Wesmith v. Clinton Fire Ins. Co., 8 Abb. 141.)

The motion must be made upon the usual notice, and copies of
all papers which the moving party intends to read upon the hearing
should be served with the notice.

SECTION IV.

Motion ror A New Triau on THE Grounp or Newry Discov-
ERED EvIpENCE.

To constitute a case for a new trial upon the ground of newly dis-
covered evidence, it must appear that the evidence has been discov-
ered since the trial ( People v. Superior Court of New York, 10
Wend. 285, 291; First Nat. Bank of Plattsburgh v. Heaton, 6 N.
Y. Sup. Ct. (T. & ©.) 87; Vandervoort v. Smith, 2 Caines, 154;
Raphelsky v. Lynch, 43 How. 157 ; 2 Jones & Sp. 31; 12 Abb. N.
S. 224; Oaklcy v. Sears, 7 Rob. 111; Messenger v. Fourth Nut.
Bank, 48 Wow. 542; Jackson v. Malin, 15 Johns. 298; Hatfield v.
Macy, 52 Wow. 193 ; Gautier v. Douglas Manuf. Co., Id. 325); that
the evidence could not have been obtained upon the former trial by
the exercise of reasonable diligence (People v. Superior Court of
NV. Y.,5 Wend. 114, 121; 10 Id. 285, 291; Geneva, Ithaca, etc. R.
Motion at Specia, Term ror a4 New Trit. 525

 

Newly discovered evidence.

 

&. Co. v. Sage, 35 Hun, 95; Campbell v. Genet, 2 Hilt. 290 ; Leavy
v. Roberts, Id. 285; 8 Abb. 310; Williams v. Baldwin, 18 Jobus.
488 ; Gould v. Moore, 8 Jones & Sp. 387, 397; Lirst Nat. Bank of
Plattsburgh v. Heaton, 6 N. Y. Sup. Ct. (T. & CO.) 87; Reese v.
Stadler, 54 How. 492; Barteau v. Phenix Mutual Life Ins. Co.,
67 Barb. 354; Oakley v. Sears, 7 Rob. 111; Hatfield v. Macy, 52
How. 198; Palmer v. Mulligan, 3 Caines, 807; Gautier v. Doug-
las Manuf. Co., 52 How. 825; Weston v. New York Elevated PR.
Co., 10 Jones & Sp. 156; Price v. Price, 33 Hun, 432, 434 ; 1 How.
N.S. 142, 145) ; that the evidence is material to the issue ( Vander-
woort v. Smith, 2 Caines, 155, 163 ; Howler v. Keliy, 11 Jones & Sp.
380 ; Raphelsky v. Lynch, 43 How. 157; 2 Jones & Sp. 31; 12 Abb.
N.S. 294; Anderson v. Market Nat. Bank, 66 Wow. 8; People v.
Superior Court of N. Y., 10 Wend. 285; Meyer v. Fiegel, 38 How.
424), and goes to the merits of the case, and not merely to impeach
a former witness (People v. Superior Court of N. Y.,5 Wend. 114;
10 Id. 286; Bunn v. Hoyt, 3 Jolins. 255; Shumway v. Fowler, 4
Johns. 425 ; Carpenter v. Coe, 67 Barb. 411; Meakim v. Anderson,
11 Barb. 228 ; Sproul v. Resolute Fire Ins. Co., 1 Lans. 71; Powell
v. Jones, 42 Barb. 243 Warner v. Western Trans. Co., 5 Rob. 490,
498; Harrington v. Bigelow, 2 Denio, 109; Melson v. Weell, 12
Week. Dig. 161; Raphelsky v. Lynch, 43 How. 157, 167 ; 2 Jones
& Sp. 31; 12 Abb. N.S. 224); that it is not merely cumulative,
(People v. Superior Court of N. ¥., 10 Wend. 285 ; Leaphelsky v.
Lynch, 43 How. 157; 2 Jones & Sp. 31; 12 Abb. N. 8. 224; Oak-
ley v. Sears, 7 Rob. 111; Meyers v. Riley, 36 Hun, 20, 538; Powell
v. Jones, 42 Barb. 24; Geneva, Ithaca, cte., Le. R. Co. v. Sage, 35
Hun, 95; Gale v. New York Cent. @ H.R. fe. FR. Co., 53 How.
385; 138 Hun,1; Mlemming v. Hollenback, 7 Barb. 271; Cole v.
Van Keuren, 51 How. 451; Barteaw v. Phenix Mutual Life Ins
Co., 67 Barb. 854 ; Peck v. Hiler, 30 Barb. 655 ; Cole v. Cole, 50
How. 59; Sheldon v. Stryker, 27 How. 387; 42 Barb. 284); and that
it is so decisive in its vharacter that there is a reasonable certainty
that on another trial it would change the result. (Darbee v. Elwood,
67 Barb. 359 ; 2 Hun, 599; Dyers v. Riley, 36 Hun, 20, 23 ; Powell
v. Jones, 42 Barb. 24; Geneva, Lthaca, ete, R. L. Co. v. Sage, 35
Huan, 95; Shultz v. Third Ave. R. L2. Co.,15 Jones & Sp. 285;
Anderson v. Market Nat. Bank, 66 How. 8; People v. McGuire,
2 Hun, 269; Adams v. Bush, 2 Abb. N. 8.104, 111.) When all
these facts appear, and the court is satistied that the ends of justice
526 New Triats anp APpEALs.

 

Newly discovered evidence.

 

will be promoted by allowing the moving party an opportunity to
present the newly discovered evidence, the motion will be granted.
(Powell v. Jones, 42 Barb. 24; Bonynge v. Waterbury, 12 Hun,
534.)

The want of recollection of a fact, which by due diligence and
attention the party might have remembered, is not a ground for a
new trial. (Hatfield v. Macy, 52 How. 193; Fleming v. Hollen-
back, 7 Barb. 271; Quinn v. Lloyd, 1 Sweeny, 253; Chamberlain
v. Lindsay, 1 Hun, 231.) Evidence contained in the books of the
moving party, but which he had overlooked, is not newly discovered
within the meaning of the rule. (Burkett v. Taylor, 9 Reporter,
628.) Nor is evidence newly discovered which was known to the
party, and within his reach at the close of the evidence, but before
the close of the trial and the submission of the case to the jury.
(Dodge v. New York & Washington Steamship Co., 1 Sweeny, 453 ;
6 Abb. N. 8. 451; 387 How. 524.) A party is chargeable with facts
known before the trial by his agent or servant. ( Weston v. Vew
York Elevated R. R. Co. 10 Jones & Sp. 156.) But the law does not
exact from a party or his counsel the exercise of more than reason-
able diligence in the conduet of his cause; and if, notwithstanding
its exercise, material evidence has eluded discovery until after the
trial, which would probably change the result, a case is presented for
granting a new trial, unless the evidence is cumulative or otherwise
objectionable under the rules above stated (Bonynge v. Waterbury,
12 Hun, 534), or other controlling reasons exist for denying the
motion. Although a witness, whose evidence would have been
material, was present in court during the trial of .he cause, and
although the defeated party might possibly have been led to suspect,
from what was stated on the trial, that the witness could give evi-
dence in his favor, yet if he had no knowledge that the witness
could give such testimony, he will not be deemed guilty of laches,
because he failed to discover and avail himself of such a possibility.
(Id.) A motion for a new trial may be granted to allow a party to
produce the testimony of a witness, as to what occurred at a trans-
action between the parties many years before the trial, where the
moving party swears that he had forgotten the presence of the wit
ness at the transaction, and was only reminded of it after the trial.
(Huebner v. Roosevelt, 7 Daly, 111.)

A party is bound and presumed to know the general leading
points which will be litigated in his case, and if he omits to procure
Motion at Spectra, Term ror A New TRIAL. 527

 

Newly discovered evidence,

 

evidence which with ordinary diligence he might have procured in
relation to those points upon the first trial, his motion for a new
trial for the purpose of introducing such testimony will be denied.
(People v. Superior Court of NV. Y., 5 Wend. 114.) Thus in an
action for libel, the defendant should always be ready to prove the
bad character of the plaintiff in mitigation of damages, and newly
discovered evidence of bad character will furnish no ground for a
new trial. (Whzteman v. Leslie, 54 How. 494.) But the exercise
of reasonable diligence does not require a party to anticipate the
introduction of manufactured evidence, and to be prepared to meet
it on the trial; and if he is in fact surprised by such evidence and
unable to meet it at the trial, the court may grant a new trial to let
in after discovered rebutting evidence. (See Powell v. Jones, 42
Barb. 24.)

Courts do not look with favor upon a motion for a new trial
founded upon newly discovered evidence that a witness for the suc-
cessful party committed perjury, unless the witness has been con-
victed (Holtz v. Schmidt, 12 Jones & Sp. 327); especially where the
newly discovered evidence is that of the perjurer. (People v. Ifc-
Guire, 2 Hun, 269.) But newly discovered evidence that the judg-
ment was recovered by conspiracy and perjury has been deemed
sufficient ground for granting a new trial where the fact of the
conspiracy was first disclosed by the conspirators upon a quarrel
between them after the trial, and the motion was made as soon as
the fact was discovered. (Jeaphelsky v. Lynch, 2 Jones & Sp. 31;
43 How. 157; 12 Abb. N.S. 224.)

Where parol evidence of the contents of a material paper has
been given upon the trial upon proof that the paper has been lost or
mislaid and could not be found, the party against whom such evi-
dence was given, and who has found the paper since the trial, should
be granted a new trial, if it appears that the paper, if produced on
the trial, would necessarily have settled the questions controverted
on the trial by oral testimony, contrary to the verdict, or if it
appears fairly probable that it would have that effect. (Darbee v.
Elwood, 67 Barb. 859; 2 Hun, 599.) So the non existence of a
paper testified to by a witness, if discovered after the trial, may bea
ground for granting a new trial. Thus, if a witness swears to a pay-
ment by check, and a subsequent examination of the witness’s bank
account and checks discloses the fact that there was no such check, a
proper case 1s presented for a new trial. (May v. Strauss, 8 Abb.
528 New Triats anp APPEALS.

 

Newly discovered evidence.

 

N. ©. 274.) So, where a verdict for the plaintiff turned upon the
question of the credibility of witnesses, the plaintiff claiming one ver-
sion of a contract and the defendant another, a letter written by the
plaintiff, which, if produced at the trial, would have justified the jury
in discrediting his testimony and in adopting the defendants’ and
which was an admission on the part of the plaintiff of facts to some
extent inconsistent with his claim, was held to be such newly discuv-
ered evidence as to justify the granting of anew trial. (MVewhall v.
Appleton, 15 Jones & Sp. 38.) And it has been held that althongh
it appears that the newly discovered evidence is in some degree
cumulative, yet if it tends to show a different state of facts on an
important point from that appearing on the trial, a new trial may be
granted. (Cooper v. Eastern Transportation Line, 11 Reporter,
234; 23 Hun, 663.) Hard cases make bad precedents.

Cumulative evidence means additional evidence of the same kind
or degree as that previously given, and upon the same point, which
in substance and effect simply repeats or adds to what has before been
testified. (See People v. Superior Court of NV. Y.,10 Wend. 285;
Parshall v. Klinck, 43 Barb. 203 ; Powell v. Jones, 42 Barb. 24; Cole
v. Cole, 50 How. 59; Cole v. Van Kewren, 51 How. 451; Lawrence
v. Lily, 88 N. Y. 42; Myers v. Riley, 36 Hun, 20.) If the newly
discovered evidence consists merely of additional facts and cireum-
stances going to establish the same points which were principally
controverted before, or of additional witnesses to the same facts and
circumstances, such evidence is cumulative, and a new trial will be
denied. (People v. Superior Court of N. Y.,5 Wend. 114, 127.)
Bat if the newly discovered evidence does not relate to a fact as to
which the moving party gave evidence upon the trial, evidence of
such new facts cannot be said to be cumulative within the meaning
of the rule. (Parshall v. Klinck, 43 Barb. 203 ; Powell v. Jones,
42 Barb. 24.)

A party moving for a new trial upon the ground of newly dis-
covered evidence should give the names of the witnesses who ean
give the evidence, and should also produce the affidavits of the newly
discovered witnesses as to what they will testify. A statement in
the aflidavit-of the party that he is informed that certain persons will
testify to certain specified facts, without explanation of the absence
of the affidavits of such persons, is not sufficient. (See Arnold v.
Skaggs, 35 Cal. 684; Cowan v. Smith, 35 Ll. 416; Burnley v. Rice,
21 Texas, 171; Smith v. Cushing, 18 Wis. 295 ; Dunbar v. Hollins-
Motion ar Srecta, Term ror a New TRrIat. 529

 

Newly discovered evidence.

 

head, 10 Wis. 505; McQueen v. Stewart, T Ind. 5385; Suggs v.
Anderson, 12 Ga. 461; Bright v. Wilson, 7 B. Mon. 122; Adams
v. Bush, 1 Abb. App. Dee. 7.) He must also make it appear from
the moving papers that the evidence is newly discovered, is material,
is not cumulative, and that he has been guilty of no laches in not dis-
covering the evidence before the trial, or in making his application.
(See ante, p. —.)

Whether a motion for a new trial founded upon newly discovered
evidence shall be granted or denied rests in the sound discretion of
the court, guided and governed in its exercise by legal authorities.
The discretion to be exercised is legal and not arbitrary. (Carpenter
v. Coe, 67 Barb. 411; Platt v. Munroe, 34 Barb. 291.)

In cases falling within the principles laid down by the authorities,
the courts will follow the established rules. But these rules are not
of such universal application as to be decisive of every case however
much it may differ in cirenmstances from every other. No arbitrary
rule can be laid down which will determine in every case whether
a party exercised reasonable diligence in procuring evidence for
the trial, nor whether the evidence which the party desires to offer
on a new trial would be likely to change the result, nor whether he
has used due diligence in making his motion. To a certain extent
each case will depend upon its own peculiar circumstances. Laches
in moving for the new trial may be a sufficient ground for denying
the motion. (Woolf v. Jacobs, 45 How. 403.) So suspicious cir-
cumstances attending the alleged newly discovered witness, if unex-
plained, may be a ground for denying the motion. (Chapman v.
O’Brien, 7 Jones & Sp. 244.) In all these cases, rules and prece-
deuts are of little value as guides to the exercise of judicial discre-
tion. So too, exceptional cases continually arise in which the devel-
opement of truth and the promotion of substantial justice will furnish
sufficient ground for granting new trials, although they do not come
within any former precedent, and consequently not within the oper-
ation of any principle or rule established for the guidance of court,
in the exercise of their discretion. (Platt v. Munroe, 34 Barb. 291,
294.)

Where a new trial is granted on the ground of newly discovered
evidence, it must be upon the terms that the moving party pay the
costs of the former trial. (Comstock v. Dye, 18 Hun, 113 ; Hossley
v. Colerich, 3 How. N.S. 169, 171.)
530 New Triats anp APPEALS.

 

Surprise.

 

SECTION V.
Motion ror a New Tria on THE GROUND oF SURPRISE.

Motions for a new trial are frequently made at Special Term upon
the ground of surprise, the moving party claiming that without fault
on his part he was placed in an unexpected situation at the trial
which was prejudicial to his interests.

It is not easy to define the term “surprise,” in such language as
to furnish a test by which to determine whether the moving party
is entitled to a new trial in each case presented to the court. Any
definition of the term must of necessity be general. The California
Code defines the term as “that which ordinary prudence could not
have guarded against.” (Cal. Code, § 657. See Dewey v. Frank,
62 Cal. 343.) Under the Missouri statute, authorizing a new trial
where there has been a mistake or surprise of a party, his agent, or
attorney, it has been held that the term “surprise” denoted an
unforeseen disappointment in some reasonable expectation against
which ordinary prudence would not have afforded protection. (Fret-
well v. Laffoon, 17 Mo. 26.) And in this State it is a well settled
rule, that where a party alleges surprise as a ground for a new trial,
he is bound to show that some act prejudicial to him has been done,
which, with a proper inquiry into the facts of his case he could not
have anticipated, and against which he could not have protected
himself with due vigilance. (Craig v. Fanning, 6 How. 836;
De Leyer v. Michaelis, 5 Abb. 203; Hatfield v. Macy, 52 Tow.
193. See Hx parte Walls, 64 Ind. 461.)

In praetice, by surprise is understood that situation in which a
party is placed, without any default of his own, which will be inju-
rious to his interests. (Oukley v. Sears, 7 Rob. 111; Platt v.
Munroe, 34 Barb. 291, 295.) Where the moving party presents a
clear case of surprise, which has resulted to his prejudice, and shows
himself without fault, and in a situation to protect his interests on a
new trial, the courts will regard the motion with favor, and grant it
if that disposition of the matter will promote substantial justice.
(Id.)

The surprise must relate to a matter of fact, and not of law. A
new trial will not be granted for surprise at the rulings of the court
Morton at SpecraL Term ror a New Triau. 531

 

Surprise.

 

upon points of law. (Craig v. Fanning, 6 How. 326; Anderson v.
Market Nat. Bank, 66 How. 8; Giraudat v. Korn, 8 Daly, 406 ;
Beals v. Beals, 27 Ind. 77.)

A party is not entitled to a new trial on the ground of surprise
resulting from the admission of competent evidence in support of
the pleading of the adverse party. (armers’ and Citizens’ Bank
v. Sherman, 33 N. Y. 69, 80; People v. Afarks, 10 How. 261;
Blake v. Madigan, 65 Me. 522.) The question of surprise arises
where there is a variance between the allegation of a pleading and
the proof. (Farmers and Citizens’ Bank v. Sherman, 33 N.Y. 69,
80), or where the adverse party is allowed to change front upon the
trial by an amendment of his pleadings. Thus where the complaint
alleges the receipt of a sum of money from the defendants on
account of the services forming the basis of the cause of action, and
the answer admits the payment of that sum on such account, but on
the trial the plaintiff is allowed to withdraw the admission as to part
of the money and to prove that it was received for other services,
the defendants are entitled to a new trial on the ground of surprise.
(Newhall v. Appleton, 15 Jones & Sp. 38.)

A new trial will not be granted to a plaintiff on the ground of
surprise by the testimony of a witness for the defendant, where it
appears that the plaintiff was informed by the defendant before suit
that his defense would be the fact stated by the witness, and was at
the same time informed by the witness what the fact was, substan-
tially as stated by him on the trial. (Mfeakim v. Anderson, 11
Barb. 215.)

As a general rule, a plaintiff, after a verdict against him, can
have no claim to a new trial on the ground of surprise by evidence of
witnesses for the defendant. (Sproul v. Pesolute, etc. Ins. Co., 1
Lans. 71; DMessenger v. Fourth Nat. Bank, 6 Daly, 190; Larrimore
v. Williams, 30 Ind. 18; Helm v. Huntington Bank, 91 Ind. 44 ;
Savoni v. Brashear, 48 Mo. 345; Beckford v. Chipman, 44 Ga.
543.) A plaintiff who is surprised by evidence he is not prepased to
rebutshould move for an adjournment, or leave to withdraw a juror,
as otherwise he is not entitled to a new trial on the ground of sur-
prise. (Id.) But this rule is not inflexible, and has been departed
from where a reliance on statements made by defendant’s counsel
before the trial has occasioned the surprise. (Continental Mat. Bank
v. Adams, 67 Barb. 318; 4 Hun, 666 ; Tyler v. Hoornbeck, 48 Barb.
198.)
532 New Trias ann Apprats.

 

Surprise.

 

A party cannot be said to be surprised by testimony which he is
fully prepared to meet and rebut. (2eitter v. Phillips, 3 Jones &
Sp. 388.) Nor is he entitled to a new trial when he not only cross-
examined the witness for the adverse party upon that part of the
testimony alleged to constitute the surprise, but also introduced evi-
dence to contradict it, and did not apply fora postponement to get
other witnesses on that point. (Wahzteman v. Leslie, 54 How. 494.
See also, Glendenning v. Canary, 5 Daly, 489.)

It has been held that it is no ground for a new trial upon the
ground of surprise, that the conduct of the plaintiff and his counsel
on the trial was such as to mislead the defendants in their defense
and to prevent them from introducing evidence fully to prove and
establish it by inducing them to believe that certain facts, upon
which the case ultimately turned, would not be denied or disputed.
(Taylor v. Harlow, 11 How. 285.) In such case the moving party
ig not prejudiced in his preparation for the trial by any acts of his
adversary, and if, with the means of evidence at his command, he
deliberately declines to use them on the trial, he will be compelled
to abide by the consequences of his deliberate act. (Id.) So, if
after the plaintiff has rested, the defendant’s counsel, upon an inti-
mation of the court in his favor, forbears to examine the witnesses
present in court, contrary to the wishes of his client, and the jury find
for the plaintiff, this furnishes no ground for a new trial. (Beek-
man v. Bemus, 7 Cow. 29.) But while it is technically correct to
deny the motion if founded upon these grounds only, the court will
be justified in setting aside the verdict upon slight additional
grounds. (See Bemus v. Beekman, 3 Wend. 667.)

Where a party, relying upon a representation of his adversary
made before trial, fails to make preparation for the trial upon some
particular point, and for that reason is defeated, a case of surprise is
presented furnishing a ground for a new trial. Thus where a party
in advance of the trial has promised not to call a particular witness,
and the other party, in reliance on the promise, has neglected to sub-
pena impeaching witnesses, the calling of such witness in violation
of the promise is such a surprise as will justify the court in granting
a new trial. (Zyler v. Hoornbeck, 48 Barb. 198.) So where the
plaintiff’s attorney was led, by conversations with defendant’s attor-
ney, to suppose that no scrious defense would be interposed, and
therefore neglected to subpoena an important witness, it was held
that a proper case was presented for setting aside the verdict and
Motion at Spectatn Term ror 4 New TRIAL. 538

 

Surprise.

 

granting a new trial, although no deceit or fraud was intended by the
defendant. (Continental Nat. Bank v. Adams, 67 Barb. 318; 4
Hun, 666.) So where the conversation of the plaintiff’s counsel led
the defendant to believe that the case would turn on questions of
law, and that the facts were not in dispute, but on the trial the
plaintiff took objections to defects in documents relied upon by the
defendant as his defense, and procured their exclusion, a new trial
was granted. (Chamberlain v. Lindsay, 1 Hun, 231.) So a new
trial was granted on the ground of surprise, where the attorney for
one of the parties held a deed important to the rights of the adverse
party, and before the trial delivered it to a third person, without
notice to his adversary, who subpoenaed the attorney, and also gave
notice to him to produce the deed, and on the trial first learned that
it was not in his possession. (Jackson v. Warford, 7 Wend. 62.)
Where no attempt is made to postpone the trial of a cause on
account of the absence of one of the counsel for the party ultimately
defeated, such absence, though satisfactorily explained, will not, as a
general rule, be a ground for granting a new trial. (Smzth v. Osborn,
45 How. 351.) Thus, where the new trial is asked for upon the ground
that one of the counsel for the moving party was absent on the trial
of the cause on account of the sickness of his wife, and that the other
counsel was not informed in time to move for a postponement, the
motion may be denied if no reason is given why the latter was not
informed in time of his colleague’s absence. (Hart v. Thomas, 61
Ga. 470.) But where the leading counsel, having in his possession
important documentary evidence, was unavoidably prevented from
attending the trial, and a motion for a postponement on this ground
was made and denied, this was deemed a snflicient ground for a new
trial.- (Thrasher v. Anderson, 45 Ga. 588; Rust v. Ketchum, 46
Ga. 534.) In all cases where absence of counsel is relied on asa ground
for 4 motion for a new trial, it should be made to appear that there
were probable merits in the cause of the defeated party which suf-
fered prejudice from the absence of the counsel relied on. (Garnett
v. Kirkman, 44 Miss. 94.) The moving party should show that he
can on another trial make a better presentation of his case. (Porter
v. Triola, 84 Ill. 825.) Sickness of counsel is not a good ground for
applying for a new trial where the facts disclose a manifest want of
diligence in procuring other counsel. (Landrum v. Farmer, 7 Bush
[Ky.] 46.) And where a party has been notified by his counsel that
he shell abandon the case unless his fecs are paid, and has not paid
&

534 New Triats anp APPEALS.

 

Surprise,

 

such fees, he cannot obtain a new trial on the ground of surprise by
the non-attendance of the counsel. (Goldstone v. Sperling, 39
Cal. 447.)

The unexpected adverse testimony of a party’s own witness may
be a good ground for a new trial on the ground of surprise (Oakley
v. Sears, 7 Rob. 111), where no want of diligence in guarding
against the surprise is attributable to the moving party, and it appears
that he has been injured thereby. (Zodd v. State, 25 Ind. 212.) But
if it is claimed that the testimony of the witness on the trial was at
variance with that given by him ona former occasion, a new trial
should not be granted if it does not appear that an attempt was made
to refresh the memory of the witness and to direct his attention to
the points of difference. (Howell v. Howell, 37 Mo. 124.) If it
does not appear that there was any material variance between the tes.
timony given on the trial and on the former occasion, and the mov-
ing party does not produce the affidavits of the witnesses by whom he
expects to establish his case on the new trial, the motion will be
denied. (Phenix v. Baldwin, 14 Wend. 62.) The surprise of a
party at the refusal of his witnessto testify as he hoped and expected
that he would testify, is no ground for a new trial where such wit-
ness was not called and sworn. (Shultz v. Third Ave. R. R. Co., 15
Jones & Sp. 285.)

Where a material witness, duly suppoenaed and in attendance
until the cause is called for trial, unexpectedly absents himself, and
by reason of his absence a verdict is rendered against the party sub-
penaing him, a case is presented for granting a new trial, particu-
larly if a postponement of the trial was moved for and denied, and
the witness is insolvent and unable to respond in damages. (Rug-
gles v. Hall, 14 Johns..112; Tilden v. Gardinier, 25 Wend.- 663.
But where the moving party, instead of subpcenaing a witness, wrote
to him to hold himself in readiness to attend the trial upon the
receipt of a telegram, and, failing to secure his attendance, went on
with the case without requesting a postponement, it was held that a
new trial should be denied. (Gawihorp v. Leary, 9 Daly, 353.) It
a party, relying upon the promise of a witness to be present at the
trial, fails to have him subpcenaed, the absence of the witness is no
ground for a new trial. (oach v. Colbern, 76 Mo. 624. See Eich
v. Taylor, 17 Minn. 172.)

But if an important witness, residing out of the State, and conse-
quently not within the reach of a subpoena, has attended voluntarily
Motion at Sprcra, Term For A New TriAt. 5385

 

Surprise.

 

at the prior terms of court at which the cause has been noticed for
trial,and has promised to attend at the next term of court, but fails to
attend when the cause is called for trial, his unexpected absence may
be a sufficient ground for granting a new trial, although the witness
was not subpoenaed, if a motion for a postponement on account of his
absence was denied, and the moving party did not have notice of the
fact that the witness would not be in attendance in time to take his
testimony by commission. (Cahell v. Hilton, 31 Hun, 114.)

A party moving for a new trial on the ground of surprise should
be guilty of no laches in making his application. (See Schweizer v.
Raymond, 6 Abb. N. C. 878; Delmas v. Martin, 39 Cal. 555;
Preston v. Eureka Art Stone Co., 54 Oal. 198.) If the surprise con-
sists in the absence of a material witness, the moving affidavits
should show what such witness will testify to (Swartzel v. Rogers, 3
Kansas, 374) ; and generally this should be shown by the affidavit of
the witness or a, satisfactory reason given for the omission (Cowan
v. Smith, 51 Ill. 416; Ward v. Cobbs, 14 Texas, 303; Spillars v.

. Curry, 10 Texas, 143) ; unless the witness has been sworn on a former
trial of the action. (See Cahill v. Hilton, 31 Hun, 114.) Where it
is the attorney who was surprised, he, and not his client, should make
affidavits to the facts showing the surprise.

The application, like all other applications for a new trial on facts
not appearing by the record, is addressed to the sound discretion of
the court (see Walliams v. Montgomery, 60 N.Y. 648; Lawrence

_v. ly, 88 N. Y. 42; Selden v. Delaware & H. Canal Co.,29N. Y.
634), and may be granted in a proper case before or after the entry
of judgment. (Zracy v. Altmyer, 46 N.Y. 598 ; Code of Civil Pro.
§ 1005.)

Subject to’ the general rules before stated, the decision of every
case must depend upon its peculiar facts as disclosed at the hearing,
and the court will grant or deny the motion as seems most likely to
promote substantial justice. (Zyler v. Hoornbeck, 48 Barb. 197.) If
the motion is granted, the court may require the moving party to pay
the costs of the trial and the costs of opposing the motion. (Id.)
536 New Trrats anp APPEALS.

 

Improper interference with the jury.

SECTION VI.
FoR MATTERS PERTAINING TO THE JURY.

Improper interference with the jury.—Any improper inter-
ference with the jury during the trial of the cause, or during the
consultation of the jury in the jury room, which might have influ-
enced the verdict, is a suflicient ground for setting aside the verdict
and granting a new trial, without regard to the source or motive of
the interference. (O’Brien v. Merchants’ Ins. Co., 48 How. 448 ;
Nesmith v. Clinton Fire Ins. Co., 8 Abb. 141; Reynolds v. Cham-
plain Transp. Co..9 How. 7; Thomas v. Chapman, 45 Barb. 98 ;
Watertown Bank & Loan Co. v. Mia, 51 N. Y. 558.) Thus a ver-
dict has been set aside where it appeared that a paper, not in evi-
dence on the trial, containing criticisms and suggestions in relation
to the accounts in controversy, was clandestinely put by the agent of
one of the parties into the books of account allowed to be taken to
the jury room. (OBrien v. Merchants’ Ins. Oo.,48 How. 448.) A
verdict was also set aside where a third party, during the trial of the
cause, made statements to a juror tending to impair his confidence in
the credibility of the witnesses for the defeated party. (Vesmith v.
Clinton Fire Ins. Co., 8 Abb. 141.) Soa verdict has been set aside
for misconduct of the officer having charge of the jury which
tended to influence their verdict. (Thomas v. Chapman, 45 Barb.
98.) In the case cited, the officer informed certain members of the
jury that the case was clear for the plaintiff ; that they had better
agree and go home, as otherwise he should lock them up for the
night. In another case it was held that while the courts will guard
the verdict of a jury with the greatest caution from the least inter-
meddling or improper influence by a party, they will not disturb a
verdict for interference by the officer having the jury in charge.
(Baker v. Simmons, 29 Barb. 198.) And in a number of cases the
courts have refused to disturb the verdict of a jury for interference
by the officer in charge, but rather upon the ground that there was
a lack of competent evidence that the misconduct of the officer in
any way tended to affect the result, than upon the theory that mis-
conduct of the officer was not a ground for a new trial. (See Zay-
lor v. Everett, 2 How. 23; People v. Carnal, 1 Park. Cr. R. 256;
Morion at Spuoray Term ror A New Tria. 55

oI

 

Communications between the court and jury.

 

Ilager v. Hager, 38 Barb. 92,102; People v. Hartung, 17 How.
85.) Communications between the jnrors and the officer having
them in charge, may undoubtedly furnish ground for a new trial
where they had a manifest tendency to influence the jury improp-
erly against the unsuccessful party, or where they were such that
prejudice may have resulted. (Wiggins v. Downer, 67 How. 65.)
Bat a mere statement of the officer’s opinion that unless the jury
agreed they would be detained until the next day at noon, is notsuch
an irregularity as will avoid the verdict, although such communica-
tion is improper. (Id.)

If the prevailing party or his connsel furnished intoxicating
liquors to a juror during the progress of the trial, this is a good
ground for granting a new trial, unless it is clearly shown that it was
not intended to influence the action of the juror, and did not influ-
ence him in rendering his verdict. (Pittsburg, de. R. Le. Co. v.
Porter, 32 Ohio St. 323.) But the fact that the officer in charge of
the jury gave intoxicating liquor to a juror who was ill, and allowed
a physician to attend him in the jury room, is not a ground for a
new trial. (WVéchols v. Nichols, 1386 Mass. 256.)

Communications between the court and jury.—A motion
for a new trial may be granted upon the gound that the trial judge,
without the knowledge and assent of the parties, sent a communica-
tion to the jury in relation to the evidence in the case which might
have influenced the verdict to the prejudice of the defeated party.
(Watertown Bank & Loan Co. v. Mix, 51 N. Y. 558; Plunkett v.
Appleton, 9 Jones & Sp. 159; 51 How. 469. See Bunn v. Croul,
10 Johns. 239; Zaylor v. Betsford, 13 Johns. 487; Neil v. Abel, 24
Wend. 185, 186; Sargent v. Roberts, 1 Pick. 337.) The party mov-
ing for a new trial upon the ground of acommunication between the
judge and jury without his knowledge or assent is not bound to show
affirmatively that the communication tended to his injury. ( Water-
town Bank & Loan Co. v. Mix, 51 N. Y. 558.) Butif it clearly
appears upon the hearing of the motion that the communication was
immaterial, or that, instead of being prejudicial to the defeated party,
it was favorable to him, and could not have worked any injustice, or
in any way affected the result, the motion may properly be denied.
(Mahoney v. Decker, 18 Hun, 365; Logers v. BMoulthrop, 13 Wend.
(274; Horton v. Horton, 2 Cow. 589.) The motion may also be denied
538 New Triats anp APPEALS.

 

Compelling an agreement of the jury.

where it does not appear what communication, if any, was sent to the
jury. (Gillotte v. Jackson, 9 Jones & Sp. 308.)

A new trial will not be granted merely because the court gave
instructions to the jury in open court, in the absence of the party
and of his counsel, after the jury had retired to consider their ver-
dict. (Wiggins v. Downer, 67 How. 65.)

Compelling an agreement of the jury.—The question whether
jurors shall be allowed to separate, whether they shall be furnished
refreshments, whether they may bring in a sealed verdict, and as to
the length of time they shall be kept together for the purpose of an
agreement, rests so far in the discretion of the court that it cannot be

. reviewed upon an exception. For any abuse in the exercise of this
discretion redress may be obtained by motion to set aside the verdict
as for misconduct of the jury. (Caldwell v. New Jersey Steamboat
Co., 47 N. Y. 282. See Wahzte v. Calder, 35 N. Y. 183; Selden v.
Delaware, etc., Canal Co., 29 N. Y. 634.)

A judge has no right to threaten or intimidate a jury in order to
affect their deliberations, and ought not even to allude to his own
purposes as to the length of time they are to be kept together. There
should be nothing in the intercourse of the judge with the jury hav-
ing the least appearance of duress or coercion ; and while the judge
may repeatedly and earnestly urge upon the jury all proper motives
to induce them to agree upon a common result, he should leave them
to feel that they act with entire freedom in their deliberations, and,
in case they continue to disagree, should not expose them to unrea-
sonable inconvenience, or criticise their action with undue severity.
He may keep the jury together as long as in his judgment there is
any reasonable prospect of their being able to agree ; but if, after the
jury have deliberated for a long time without reaching an agreement,
the judge either expressly states or distinctly intimates to the jury
that they will not be discharged until they have agreed upon a ver-
dict, or until some distant time in the term, and the jury soon there
after agree, the verdict so obtained will be set aside. (@rcen v.
Telfair, 11 How. 260; Slater v. Mead, 53 Ilow. 57. But see
Erwin v. Hamilton, 50 How. 32.) But the fact that the officer in
charge of the jury has stated his convictions to the jury that they
would be kept together for a long timo unless they agreed upon a
verdict, although an irregularity, is nota ground for a new trial.
( Wiggins v. Downer, 67 How. 65 ; Leach v. Wilbur, 9 Allen, 212.)
For Martrers REevatine To THE Jury. 539

 

Disqualification of juror.

 

Verdicts obtained by duress, intimidation, or physical exhaustion
of jurors ought to be promptly set aside without regard to the source
of the intimidation or improper restraint; and if jurors are led to
belicve, through the mis-statements of the officer in charge, that the
court has expressed a determination to keep them together until they
agree, or for an unreasonable length of time, and find a verdict
merely to escape imprisonment, the party prejudiced by the verdict
is as clearly entitled to have it set aside as though the officer was the
mouth-piece of the court. Itis the injury to the party and not the
source of the injury which should be considered.

Disqualification of juror.—It has been held that where a juror
is disqualified from sitting as such upon the trial of a cause by reason
of relationship or otherwise, yet is accepted without objection by
either party, the presence of the disqualified juror is not a ground
for a new trial, although the disqualification was not known to the
defeated party, unless it appears that he was actually prejudiced by
it. (Salisbury v. McClashey, 26 Hun, 262; Cole v. Van Keuren,
51 How. 451; Woodward v. Dean, 113 Mass. 297; Jvollins v.
Ames, 9 Am. Dee. 79, 81, n. ; Jones v. People, 2 Col. T. 351; Was-
sum v. Feeney, 121 Mass. 93; Spicer v. Fulgum, 67 N. C. 18;
United States v. Baker, 3 Ben. 68. But see Mann v. Fairlee, 44
Vt. 672; Quinn v. Halbert, 52 Vt. 353; Bullard v. Smith, 63 Ga.
165; Williams v. McGrade, 18 Minn. 82; Hudspeth v. Henderson,
64 Ind. 133.) The decisions in this State were rendered under the
Code as it existed before the amendment of 1883. Under the pres-
ent Code a judge is prohibited from sitting as such where he is
related by consanguinity or affinity. to any party to the controversy
within the sixth degree (Code of Civil Pro. § 46); and persons are
disqualitied from sitting as jurors if related by consanguinity or
affinity to a party to the issue in the same cases in which judges are
disqualified. (Id. § 1166.) The party related to the juror must raise
the objection before the case is opened ; but any other party to the
issue may raise the objection within six months from the date of
verdict. (Id.) The proper way to take the objection is by a motion
to set aside the verdict and for a new trial; and the right to this
remedy is of little value if the moving party is required to show
affirmatively that he was prejudiced by the trial of his cause before
a relative of the successful party.
540 New Trirats axp APPEALS.

 

Misconduct of the jury.

 

Misconduct of the jury.—A verdict will be set aside and a new
trial granted for any misconduct of the jury which probably resulted
to the prejudice of the moving party, but not for irregularities by
which he could not have been prejudiced. (Smith v. Thompson, 1
Cow. 221; Oliver v. Trustees of First Presby. Church, 5 Cow. 283 ;
Ex parte Hill, 8 Cow. 355; Horton v. Horton, 2 Cow. 589 ; Wilson
v. Abrahams, 1 Hill, 207; Fash v. Byrnes, 14 Abb. 12; Hager v.
Hager, 38 Barb. 92.) If, in the course of the trial, a juror has in any
way come under the inflnence of the party who afterwards has the
verdict ; or there is reason to suspect that he has drank so much at
his own expense as to unfit him for the proper discharge of his duty ;
or where he has so grossly misbehaved himself in any other respect
as to show that he had no just sense of the responsibility of his sta-
tion, the verdict ought not to stand. But every irregularity which
would subject the juror to censure, whether in drinking spirituous
liquor, separating from his fellows, or the like, should not overturn
the verdict unless there is some reason to suspect that the irregular-
ity may have had an influence on the final result. (Wilson v. Abra-
hams, 1 Hill, 207.) Each case must be determined upon the facts
presented; and in deciding the motion the court will look into the
merits of the controversy, and consider the probable effect of the
irregularity upon the final result. (Hackley v. Hastie, 3 Johns.
252; Schappner v. Second Ave. R. R. Co., 55 Barb. 497.)

It is the policy of the law to watch over the deliberations of the
jury, and to guard them from all impressions and influences in respect
to the issnes involved not derived from a trial in open court in the
presence of the parties and their counsel; and therefore, if the jury
during their deliberations find the minutes of the presiding judge,
containing only an imperfect statement of the evidence, and proceed
to read and comment upon the evidence as there stated, their verdict
may properly be set aside and a new trial granted. (Aitchell v.
Carter, 14 Hun, 448; Weil v. Abel, 24 Wend. 185. The same rule
would apply to the unanthorized use by the jury of any other paper
bearing upon the merits of the controversy and tending to influence
their verdict. But if the jury, with the conenrrence of the judge,
take a paper which has been given in evidence to the jury room, this
constitutes no error calling for a new trial, as the judge has the right
in the exercise of a sound diserction to perinit the jury to inspect it.
(Howland v. Willetts, 9 N, Y.170; Schappner v. Second Ave. R. R.
Co., 55 Barb, 497.) So if the jury, with the concurrence of the
For Marrers ReEwatinG TO TEE JuRY. 541

 

Misconduct of the jury.

 

judge but without the knowledge of the parties, take to the jury
room a paper not put in evidence, this will not be an error calling for
a new trial if it appears either that it was not read or used by them,
or that it was immaterial in its character, and an examination of the
whole case leads to the conclusion that it could not have had any
bearing upon the issues or the result. (Id.) So if the jury accident-
ally come in possession of a paper not put in evidence, and on dis-
covery of this fact are charged by the court to disregard it, this is no
ground for a new trial, especially if the paper related only to a ques-
tion in the case as to which there was no conflict of evidence, and
upon which their verdict was warranted by the testimony given upon
the trial. (Dolan v. Hina Ins. Co., 22 Hun, 396. And see Gard-
ner v. Kimball, 58 N. H. 202.)

When the jury determine by lot whether their verdict shall be
for the plaintiff or for the defendant, their verdict will be set aside.
(Mitchell v. Hhle, 10 Wend. 595.) So if the jurors agree that the
amount for which their verdict shall be rendered shall be ascertained
by each juror marking down such sum as he thinks proper, and
dividing the aggregate by twelve, the quotient to be the verdict, the
verdict so reached will be set aside and a newtrial ordered. (Smith
v. Cheetham, 3 Caines’ R. 57; Thomas v. Dickinson, 12 N. Y. 364;
(Harvey v. Rickett, 15 Johns. 87; Roberts v. Failis, 1 Cow. 238.)
But if there was no previous agreement to abide by the contingent
result at all events, and the general average of the opinions of all the
jurors was obtained for the sake of arriving at a reasonable meas-
ure of damages, without binding the jurors by the result, a subse-
quent adoption of that result as the verdict will not be a sufficient
ground for a new trial. (Dana v. Tucker, 4 Johns. 487; Miller v.
St. Louis R. R. Co., 5 Mo. App. 471.)

The hardships of the former practice of keeping juries together
without separation from the commencement of the trial until the
announcement of a verdict has been recognized in this age of pro-
tracted trials and badly ventilated court-rooms, and juries are now
allowed great freedom of movement during the trial under proper
cautionary instructions from the court. But any abuse of the liberty
so given, or violation of the instructions of the court, if of such a
nature as to give reasonable grounds for belief that it has resulted
in injury to a party is still a ground for setting aside the verdict and
granting a new trial. It would be idle to attempt to state what com-
bination of improper acts and suspicions circumstances will entitle a
542. New Trias anp AppPEALs.

 

Misconduct of the jury.

 

defeated party to have a verdict set aside in every conceivable case.
Each application to the court must depend upon its own circumstan-
ces, and precedents are of little value as guides to a correct decision.
The mere fact that a juror, immediately after the charge, went
across the street and dranka glass of beer (Carter v. Ford Plate Glass
Co., 85 Ind. 180. See Lorimer v. Kelly, 138 Kans. 78), or took a num-
ber of drinks at his own expense during the progress of the trial
(Pratt v. State, 56 Ind.176; Van Buskirk v. Dougherty, 44 Iowa,
42. See ONeill v. Keokuk, dc., R. R. Co., 45 Iowa, 546 ; Lussell v.
State, 53 Miss. 368 ; Roman v. State, 41 Wis. 312; Hee v. State, 28
Ark. 155), or that there was a casual conversation between a party to
the suit and certain of the jurors while the cause was on trial (Bor-
land v. Barrett, 76 Va. 128), or between a juror and the counsel for
the prevailing party upon some immaterial matters pertaining to the
trial (Lee v. McLeod, 16 Nev. 158), or that a juror rode to and from
the court each day with the prevailing party, who was a neighbor
(ford v. Holmes, 61 Ga. 419), or that a juror took a nap during the
trial, where the counsel for the moving party did not call the atten-
tion of the court to it at the time (People v. Morrissey, 1 Sheldon,
295 ; Scott v. Waldeck, 12 Neb. 5; McClary v. State, 75 Ind. 260) ;
or that one of the jurors temporarily separated from his fellows after
the charge of the court and the retirement of the jury for delibera-
tion (State v. Conway, 23 Minn. 291), has been held not sufficient in
itself to require the court to set aside the verdict and grant a new
trial. On the other hand, it has been held that where jurors have
made independent investigations in respect to the matters in suit, as
by examining the locus in guo and conversing with persons in that
vicinity (Bradbury v. Cony, 62 Me. 223; Bowler v. Washington,
62 Me. 302), or have consulted maps not in evidence (State v.
Hartmann, 46 Wis. 248), or have taken intoxicating liquors at the
expense of the prevailing party or his counsel (P2ttsburg, &c., R.
R. Co. v. Porter, 32 Ohio St. 328), or have had refreshments gen-
erally at the expense of the prevailing party (Doud v. Guthrie, 18
Ill. App. 653), or that two of their number obtained a horse and
buggy from the attorney for one of the parties to take them to their
home and back during the adjournment of the court (Ensign v.
Harney, 15 Neb. 330 ; 48 Am. Rep. 844), the verdict may properly
be set aside and a new trial ordered.

Where a party cognizant of the misconduct of a juror does not
call attention to it at the first opportunity, he waives the right te
Error GENERALLY. 543

 

Affidavits of jurors—Error in receiving or rejecting evidence.

 

afterward make such misconduct a ground fora motion for a new
trial. (Valiente v. Bryan, 66 How. 302.)

Affidavits of jurors will not be received upon a motion fora
new trial for the purpose of impeaching their verdict, by showing
error or mistake in respect to the merits, or by showing their own
misconduet, or that of their fellows, or by showing that the miscon-
duct of others affected their verdict (Coster v. Merest, 3 Brod. &.
Bing. 272; Clum v. Smith, 5 Hill, 560; Williams v. Montyomery,
60 N. Y. 648; Wéiggins v. Downer, 67 How. 65; Vaise v. Delaval,
1 Term R.11; Owen v. Warburton, 4 Bos. & Pul. 826; Dana v.
Tucker, 4 Johns. 487; Mitchell v. Carter, 14 Hun, 448; Green v.
Bliss, 12 How. 428; Ostrander v. People, 28 Hun, 38,48; Thomas
v. Chapman, 45 Barb. 98; Taylor v. Hverett, 2 How. 23; Dessen-
ger v. Fourth Nat. Bank, 48 How. 542; 6 Daly, 190; elley v.
Sheehy, 8 Daly, 29; Dayton v. Church, 7 Abb. N. C. 867; People
v. Columbia Common Pleas, 1 Wend. 297); but they may be
received for the purpose of showing the misconduct of a party (Rey-
nolds v. Champlain Transp. Co., 9 How. 7); or of the officer hav-
ing them in charge (Zhomas v. Chapman, 45 Barb. 98; Wiggins v.
Downer, 67 How. 65, 70); or to sustain their verdict (Dana v.
Tucker, 4 Johns. 487; Mesmith v. Clinton Fire Ins. Co., 8 Abb.
141; Eastwood v. People, 3 Park. Or. R. 25); or to show a mistake
of the foreman in announcing their verdict (Dalrymple v. Williams,
63 N. Y. 361; Cogan v. Ebden, 1.Burr. 383); or that a mistake was
inade by the court or clerk in receiving and entering their verdict
(Jackson v. Dickenson, 15 Johns. 309.)

SECTION VII.

Error GENERALLY.

 

Erroneous charge to the jury.—An error in charging or
refusing to charge the jury, which would call for a reversal of the
judgment if the question was raised on appeal, is a good ground for
setting aside the verdict and granting a new trial. (See ante, p.
181; Trial Practice, 501.)

Error in receiving or rejecting evidence.—Wherever an
error in receiving or rejecting evidence is of such a character, that
54d New Triats anp APPEALS.

Error in granting or refusing a non-suit.

 

an appellate court would be bound to reverse a judgment upon that
ground when called upon to review the error on appeal, a proper
case is presented for setting aside the verdict and granting a new
trial upon the motion of the defeated party. (See ante, p. 175;
Trial Practice, p. 498.)

 

Error in granting or refusing a non-suit.—The cases in
which an appellate court would be justified in reversing a judgment
on appeal, and in directing a new trial for error in granting or deny-
ing a motion for a non-suit upon a jury trial have been already con-
sidered. (Ante, p. 185. See Trial Practice, p. 217.) If the error
was such as to call for reversal if presented upon appeal, it is proper
ground for granting a new trial upon a motion made at Special Term
based upon an exception to the rnling of the trial judge. The prin-
ciples governing the decision of the appeal or of the motion are the
same; and the question presented in either case, is whether in his
rulings the trial judge committed an error in law. A different ques-
tion is presented by a motion to set aside a verdict as against the
weight of evidence. In that case, it is an error of the jury and not
of the court that it is sought to be redressed. A motion upcn this
ground may be granted where a refusal to non-suit would be proper.

(See Colt v. Siath Ave. R. R. Co., 49 N. Y. 671.)

SECTION VIII.
New Trrat iw Esecrment.

The principles stated in the foregoing pages of this chapter apply
to applications for a new trial in all actions, including actions of
ejectment ; but the statute contains some special provisions giving
additional right to a new trial in the latter class of actions which
will be here briefly noticed.

After declaring the ‘effect of a final judgment in ejectment when
rendered upon the trial of an issue of fact (Code of Civil Pro. §
1524), the statute further provides that “The court within three
years after such judgment is rendered and the judgment-roll is filed,
upon the application of the party against whom it was rendered, his
heir, devisee or assignec, and upon payment of all costs, and all
damages other than for rents and profits or for use and occupation,
awarded thereby to the adverse party, must make an order vacating
New Triav in Evysormenr. 545

 

New trial in ejectment.

 

the judgment, and granting a new trial in the action. The court,
upon a like application, made within two years after the second final
judgment is rendered, and the judgment-roll is filed, may make an
order vacating the second judgment, and granting a new trial, upon
the like terms, if it is satisfied that justice will be thereby pro-
moted, and the rights of the parties more satisfactorily ascertained
and established. Not more than two new trials shall be granted
under this section.” (Id. § 1525.)

This provision of the statute does not apply to any other than
strictly legal possessory actions in the nature of ejectment. (Shum-
way v. Shumway, 42 N. Y. 143. See Marvin v. Marvin, 11 Abb.
N. 8. 102.) Under it one new trial must be granted on payment of
costs and damages although the applicant shows no error upon the
former trial. The statute is imperative. But where one application
for a new trial has been made and granted, and a second final judg-
ment has been rendered in the action, another new trial will not be
granted upon payment of costs and damages, unless the court is satis-
fied that justice will be thereby promoted, and the rights of the par-
ties more satisfactorily ascertained and established. The second
application is addressed to the judicial discretion of the court.
(Harris v. Waite, 54 How. 113.) Upon this application the court
should consider how far the defendant is in fault for the error or
omission alleged in the former trial, and whether it may have been
intentional ; and whether the objections alleged are technical or
meritorious. (Phyfe v. Masterson, 13 Jones & Sp. 338.) The
moving party cannot claim the third trial as a matter of statutory
right.

A final judgment for the plaintiff in an action of ejectment ren-
dered otherwise than upon a trial of an issue of fact, becomes, after
the expiration of three years from the filing of the judgment-roll,
conclusive upon the defendant and every person claiming from
throngh, or under him by title aceruing either after the judgment-
roll is filed, or after a notice of the pendency of the action has been
filed in the proper county clerk’s office as prescribed in article 9 of
title 1 of chapter 14 of the Code. But within five years after the
judgment-roll is filed, the court, upon the application of the defend.
ant, his heir, devisee, or assignee, and upon payment of all costs and
damages awarded to the plaintiff, must make an order vacating the
judgment, and granting a new trial if it is satisfied that justice
will be thereby promoted, and the rights of the parties more satisfac-

35
546 New Triats anp APPEALS.

 

New trial in ejectment,

 

torily ascertained and established, but not otherwise. (Code of Civil
Pro. § 1526.)

In a case specified in the section above cited, if the defendant is
at the time of the filing of the judgment-roll, either

1. Within the age of twenty-one years; or

2. Insane; or

3. Imprisoned on a criminal charge, or in execution upon con-
viction of a criminal offense, for a term less than for life ;

The time of such disability is not a part of the three years speci-
fied in the section above cited; but such a defendant, his heir,
devisee or assignee, may commence an action for the recovery of the
real property claimed, at any time within three years after the dis-
ability ceases, but not afterwards. (Id. § 1527.)

The foregoing provisions of the Code as to a new trial in eject-
ment, are not applicable where the action is founded upon an alle-
gation of rent in arrears, or in a case to which section 445 of the
Code is applicable. (Id. § 1528.)

Upon a new trial granted under the provisions of the Code above
cited, the defendant may show any matter in defense which he might
show to entitle him to recover the possession of the property if he
was plaintiff in the action. (Id. § 1530.)

SECTION IX.
Costs.

The prevailing party upon a motion for a new trial upon a case
at Special Term is entitled to tax costs as follows :

Before argurhent, twenty dollars.

For argument, forty dollars.

For making and serving a case, twenty dollars; and where the
case necessarily contains more than fifty folios, ten dollars in addition
thereto.

For making and serving amendments to a case, ten dollars.

Where a new trial is had pursuant to an order granting the same,
for all proceedings after the granting of and before the new trial,
twenty-five dollars. (Code of Civil Pro. § 3251 ; Stitt v. Rowley, 87
How. 179; Selover v. Wisner, 37 How. 176.)

Where the justice to whom the application is made does not
decide it, but directs a re-argument before another justice, and the
Costs. 547

 

Costs,

 

motion is re-argued, the party succeeding upon the re-argument is
entitled to tax forty dollars for each argument. (Guchenheimer v.
Angevine, 16 Hun, 453.)

A motion for a new trial upon the grounds of surprise or newly
discovered evidence, is not a motion on @ case within the meaning of
section 8251 of the Code above cited, and the party succeeding upon
the motion is not entitled to tax as costs the same sumsas upon appeal,
but merely motion costs, if any. Although upon such motion a case
must be made and settled, the whole office of the case is to enable the
court to ascertain by inspection whether the newly discovered evi-
dence disclosed by the affidavits is cumulative. The motion is made
upon the affidavits, and no recourse is had to the case except for the
purpose indicated. (Hossley v. Colerick, 3 How. N. 8.169. But see
Warner v. Western Trans. Co., 5 Rob. 490.)
APPENDIX OF FORMS.

No. 1.
Affidavit on Motion to Compel the Entry of an Order.
Ante, p. 44; Code of Civil Pro. § 1304,

(Title of the cause.)
(Venue.)

A. B. being duly sworn says that he is the attorney for the defend-
ant in the above entitled action.

That on the day of > 188 , at » upon the
affidavits of and , and upon notice to the defendant, an
application was made by the plaintiff herein, to Hon. » for an

order (State the nature of the application.)

That deponent attended upon the hearing of said motion, and
opposed the same upon the affidavits of the defendant and of his agent

That upon said hearmg an order was made and signed by

said (Justice) granting said order, and the papers upon which said
motion was made and opposed were indorsed as read upon the motion,
and were delivered with said order to the attorney for the plaintiff.
That said attorney has failed and neglected to enter the orderso made,
and to file the papers upon which the same was founded, in the office
to the Clerk of the County of , that being the county designa-
ted in the summons as the place of trial of this action, and by such
failure and neglect has prevented, and still prevents, the defendant
from appealing from said order to the General Term of this court.

That no frior application on the part of the defendant for an order
directing the entry of the aforesaid order has been made.

(Jurat.) (Signature.)

 

No..2.

Order Directing Entry of an Order Made Out of Court.
Ante, p. 44; Code of Civil Pro. § 1304.

(Title of the cause.)

On reading and filing the affidavit of , verified on the
day of , 188 ,and on motion of » attorney for the
defendant, it is

ORDERED :

That the order of (describing it) made in this action on the
day of , 188 , by Hon. , be entered, and, he papers
550 APPENDIX OF Forms.

upon which the same was founded, be filed by the attorney for the
plaintiff in the office of the clerk of the county of , within
(ten) days after the service upon him of a copy of this order and of
the affidavit upon which it is granted.
Dated, , 188 ,
(Signature of Judge.)

 

No. 3.
Notice of Appeal with Stipulation for Judgment Absolute.
Ante, pp. 64, 245 ; Code of Civil Pro. § 191.
(Title of the cause.)

Take notice, that the plaintiff appeals to the Court of
Appeals from the order of the General Term of the Supreme Court in
this action, entered in the office of the clerk of the county of
on the day of , 1886, granting a new trial herein ; and
the said plaintiff hereby assents that if said order is affirmed, judgment
absolute shall be rendered against the appellant.

Dated the day of , 1886.

: Yours, &c.,
A. B., Attorney for the Appellant.
(Office address.)
To C. D., Attorney for Respondent, and
To the Clerk of the County of

 

No. 4.

Notice of Appeal from a Judge’s Order.

(Title of the cause.)

Please take notice that the (plaintiff) appeals to the General Term
of the (Supreme) Court from the order made in this action, on the

day of , 1886, by Hon. , Justice of the (Supreme) Court,
entered in the office of the Clerk of the County of , on the
day of » 1886, (denying plaintiff’s motion for, etc.)
Dated the day of , 1886,
Yours, &c.,
A. B., Attorney for Appellant.
(Office address.)

To C. D., Attorney for Respondent, and
To the Clerk of the County of

 

No. 5:
Notice of Appeal from a Final Judgment.

Ante, pp. 62, 63; Code of Civil Pro. §§ 1300, 1301.

(Title of the cause.)

Please take notice that the (defendant C. D.) appeals to the (Gen-
eral Term of the Supreme) Court from the final judgment of the
Apprnpix or Forms. “551

court entered in this action in the office of the Clerk of the County of
, on the day of , 1886, (and that the appellant
intends to bring up for review upon such appeal the interlocutory
judgment entered in this action on the day of , and
also the order entered in said action on the day of ‘
1886, etc., specifying the nature of the order sufficiently to identify it.)
Dated (July 12th, 1886.) Yours, &e.,
A. B., dttorney for the Appellant.
(Office address.)
To the Clerk of the County of , and
To Y. Z., Attorney for the Respondent.

 

No. 6.
Notice of appeal to the Supreme Court from a Surrogate’s decree.
See ante, p. 384; Code of Civil Pro. § 2574.

(Title as in Surrogate’s Court.)
Please take notice, that Y. Z. appeals to the General Term of the

Supreme Court, in the department, from the decree rendered in
the above entitled proceeding, on the day of , 1886, in the
Surrogate’s Court of the county of , aud from each and every

part thereof.
Dated (July 12, 1886.)
(Signature and address of appellant’s attorney.)
To How. , Surrogate of the county of ‘i
L. M., Attorney for :

(Names of parties who have not appeared by attorney.)

 

No. 7. :
Notice of appeal to the County Court.
Ante, p. 420; Code of Civil Pro. § 3068.
JUSTICH’S COURT, County or

Jacob Denmark
against
Andrew White.

 

 

Take notice, that the above named defendant Andrew White
hereby appeals to the County Court of the county of , from the
judgment rendered in this action on the day of , 1886, by

, Hisq., Justice of the Peace, in favor of the above named plaintiff
for dollars damages and dollars costs (if a new trial is
desired add), and demands a new trial in the County Court.

Dated (July 12, 1886.)

Yours, &c.
ANDREW WHITE, Appellant,
(Or signature and address of his attorney.)
To Esq., Justice of the Peace,
and To Jacob Denmark, Respondent.
552 APPENDIX oF Fors.

No. 8.
Stipulation by respondent for a reversal.

See ante, p. 432; Code of Civil Pro. § 3062.

 

 

COUNTY COURT OF COUNTY.
Nicholas Van Rensselaer
against of
Richard McElwain. J

It is hereby stipulated that the judgment for $ damages and
costs, rendered in favor of the above named plaintiff on the day
of , 1886, by , Justice of the Peace, described in the notice
of appeal served upon the respondent on the day of j
1886, may be reversed with five dollars costs and disbursements of the
appeal.

Dated, etc.
NICHOLAS VAN RENSSELAER,
Respondent.
To RICHARD McELWAIN,
Appellant.

No. 9.
Undertaking to perfect an appeal to the Court of Appeals,
See ante, p. 71; Code of Civil Pro, § 1326.
SUPREME COURT.

Thomas Montgomery
against
Henry Richmond.

 

 

Whereas, on the 9th day of June, 1886, in the Supreme Court, the
above named plaintiff, Thomas Montgomery, recovered a judgment
against the above named defendant, Henry Richmond, for $3,900.82,
damages and costs :

And the said defendant feeling aggrieved thereby, intends to appeal
therefrom to the Court of Appeals:

Now, therefore, we, David Hoyt, residing at No. River street,
in the city of Troy, by occupation a merchant, and James Miller,
residing at No. State street, in the city of Albany, by occupation a
builder, do hereby jointly and severally undertake that* the appellant
will pay all costs and damages which may be awarded against him on
said appeal, not exceeding five hundred dollars.t

Dated (July 12, 1886.)

(Signatures of sureties.)
APPENDIX oF Forms. 553

State or New York, 5
County of Albany, § ***

On this 12th day of July, A. D. 1886, before me, the subscriber,
appeared David Hoyt and James Miller, to me personally known to be
the same persons described in and who executed the above undertaking
and severally acknowledged that they executed the same.

(Signature and official title of officer.)
County of Albany, ss.:

David Hoyt and James Miller, being severally sworn, each for him-
self, says: the said David Hoyt, that he is a resident of this State, is a
freeholder (or householder) therein, and is worth the sum of ($1000)
over all the debts and liabilities which he owes or has incurred, and
exclusive of property exempt by law from levy and sale under execu-
tion; and the said James Miller, that he is a resident of this State, is a
freeholder (or householder) therein, and is worth the sum of ($1000)
over all debts and liabilities which he owes or has incurred and exclu-
sive of property exempt by law from levy and sale under execution.

 

(Signatures of Sureties.)
Severally subscribed and sworn to before
me this 12th day of July, 1886.
(Signature and official title of officer.)
No. 10.
Undertaking to perfect appeal and to stay execution of a judgment for
money.

See ante, p. 75 ; Code of Civil Pro. §§ 1827, 1334.

Proceed as in form No. 9, to the }, then add) and do also jointly
and severally undertake that if the judgment appealed from, or any
part thereof, is affirmed, or the appeal is dismissed, the appellant will
pay the sum recovered or directed to be paid by the judgment, or the
part thereof as to which it is affirmed.

Dated (July 12th 1886.)

4

(Signature of Sureties.)
Add acknowledgment and affidavit of sureties as in No. 9, making the proper
change in the amount specified in the affidavit, See ante, p. 95.)

 

No. 11.

Undertaking to perfect appeal and to stay execution of a judgment
directing payment of money in installments.

See ante, p. 76 ; Code of Civil Pro. §§ 1327, 1334.

(Title of the cause.)

Whereas, on the day of , 1886, in the Court, the
above named (plaintiff) A. B., recovered a judgment agaiust the above
named (defendant) C. D., for $ damages and costs, whereby the
said C. D. was directed to pay said damages in fixed installments as
therein set forth (or otherwise reciting the direction as to the payment
of installments in accordance with the judgment) :
554 Apprenpix or Fors.

And the said (defendant) feeling aggrieved thereby intends to

appeal therefrom to the Court ; ;
Now, therefore, we, E. F., residing at , by occupation a
, and G. IL, residing at , by occupation a

>
do hereby jointly and severally undertake that the appellant will pay *
all costs and damages which may be awarded against him on said appeal,
not exceeding five hundred dollars; and do also jointly and severally
undertake that the appellant will pay* each installment which becomes
payable pending the appeal, or the part thereof as to which the judg-
ment is affirmed not exceeding the sum of (insert the amount fiaed by
the judge of the court below) dollars.

Dated (July 12th, 1886.) a 7

(Add acknowledgment and affidavit of sureties as in No. 9, but in an amount double
that specified in the undertaking.)

 

No. 12.
Undertaking to stay execution of a judgment for money.

See ante, p. 75; Code of Civil Pro. § 1327.

(Proceed as in No. 9, to the *, then add) if the judgment appealed
from, or any part thereof, is affirmed, or the appeal is dismissed, the
appellant will pay the sum recovered or directed to be paid by the
judgment, or the part thereof as to which it is affirmed.

Dated (July 12th, 1886.)
: (Signature of Sureties,
(Add acknowledgment and affidavit of sureties as in No. 9.) ,

 

No. 13.

Undertaking to stay execution of judgment directing payment of
money in fixed installments.

See ante, p. 76; Code of Civil Pro. § 1327.

(Proceed asin form No. 11, omitting the matter included within
the **.)

 

No. 14.
Undertaking to stay the execution of a judgment in replevin.
See ante, p. 77; Code of Civil Pro. § 1329.

(Title of the cause.)

Whereas, on the day of , 1886, in the Court, the
above named plaintiff A. B., recovered a judgment against the above
named defendant C, D., awarding the plaintiff the possession of certain
chattels with $ damages and costs ;

And the said defendant feeling aggrieved thereby intends to appcal
therefrom to the Court ;
APPENDIX oF Forms. 555

Now, therefore, we E. F., residing at , by occupation a
-and G. HL, residing at , by occupation a , do hereby jointly
and severally undertake in the sum of (insert sum "fined by the court
below or a judge thereof’) dollars, that the appellant will obey the
direction of the appellate court upon the appeal.

Dated (July 12, 1886.)
; (Signature of sureties.)
(Add acknowledgment and affidaott of sureties. See No. 9.)

 

No. 15.
Undertaking to stay execution of a judgment in ejectment.
Ante, p. 78; Code of Civil Pro. § 1331.

(Title of the cause.)

Whereas, on the day of , 1886, in the Court, the
above named plaintiff A. B., recovered a judgment against the above
named defendant C. D., whereby the plaintiff, among other things, is
entitled to the immediate possession of the real property therein
described ;

And the said defendant feeling aggrieved thereby intends to appeal
therefrom to Court,

Now, therefore, we, Ez. F., residing at » by occupation a
and G. H., residing at , by occupation a , do hereby jointly
and severally undertake that the appellant will not while in possession
of such real property commit, or suffer to be committed, any waste
thereon; and that, if the judgment appealed from be affirmed, or the
appeal be dismissed, the appellant will pay the value of the use and
occupation of said property, or the part thereof as to which said judg-
ment shall be affirmed, from the time of taking said appeal until the
delivery of the possession thereof pursuant to said judgment, not
exceeding the sum of dollars.

Dated (July 12, 1886.)
(Signature of sureties.)
(Add acknowledgment and affidavit of sureties as in No. 9.)

 

No. 16,
Undertaking to stay execution of a judgment of foreclosure.

Ante, pp. 78, 79; Code of Civil Pro. § 1331.

(Proceed as in No. 15, or as follows :)
(Title of the cause.)

Whereas, on the day of , 1886, in the Court, the
above named plaintiff A. B., recovered a judgment against the above
named defendants C. D., E. F., and G. H., for the foreclosure and sale
of real property mortgaged ;

And the said defendant G. H. feeling aggrieved thereby intends to
appeal therefrom to the Court,

Now, therefore, we, O. P., residing at , by occupation a ;
and 8. T., residing at , by occupation a , do hereby jointly
556 APPENDIX oF Forms

and severally undertake, that if the judgment appealed from is
affirmed, or the appeal is dismissed, the said appellant will pay any
deficiency which may occur upon the sale in discharging the sum to
pay which the sale is directed, with interest, and the costs, and all
expenses chargeable against the proceeds of the sale, not exceeding the
sum of dollars.

Dated (July 12, 1886.)
(Signature of sureties.)
(Add acknowledgment and affidavit of sureties.)

 

No. 17.

Undertaking on appeal from order directing payment of money, where
security is rehired

Ante, pp. 81-85 ; Code of Civil Pro. § 1351.

(Title of the Cause.)

Whereas, on the day , 188 , the (Supreme) Court, at
a Special Term thereof, made an order in this action (state the nature
of the order) which order was entered in the office of the clerk of the
County of » on the day of , 188 ,and

Whereas, the above named (defendant ) feeling aggrieved
thereby, intends to appeal therefrom to the General Term of the
(Supreme) Court, and the court having made an order that all proceed-
ings on the part of the be stayed pending said appeal on the
execution of an undertaking on the part of the » With sufficient
sureties, conditioned as herein provided,

Now, therefore, we, A. B., residing at , by occupation a

, and C. D., residing at , by occupation a ,

do hereby jointly and severally undertake, that the appellant will
pay all costs and damages which may be awarded against him on
said appeal, not exceeding five hundred dollars; and do in like manner
also hereby undertake* that if the order appealed from, or any part
thereof, is affirmed, or the appeal is dismissed, the appellant will pay
the sum directed to be paid by the order or the part thereof as to which
it is affirmed.

(Date.) (Signatures. )

(Add acknowledgment and affidavit of sureties.)

No. 18.

Undertaking on appeal from order directing the assignment or deliv-
ery of personal property.

(As in preceding form to the *, then add,) in the sum of dol-
lars that the appellant will obey the direction of the General Term,
upon the appeal.

(Date.) (Signatures, )

(Acknowledgment, and affidavit of sureties.)

8 od
APPENDIX OF Forms. 557

No. 19.
Undertaking on appeal from a decree of a Surrogate.

Ante, p. 385; Code of Civil Pro. §§ 2577, 2581.

(Title as in Surrogate’s Court.)

Whereas, on the day of , 1886, in the Surrogate’s Court
of the County of , @ decree was rendered in the above entitled
proceeding (state enough of the substance of the decree to identify it),
and

Whereas, A. B., feeling aggrieved thereby, intends to appeal there-
from to the Supreme Court:

Now, therefore, we, C. D., residing at , by occupation a

, and EK. F., residing at , by occupation a
do hereby jointly and severally undertake to and with the People of
State of New York,* that the appellant will pay all costs and damages
which may be awarded against him upon the appeal, not exceeding two
hundred and fifty dollars. ‘
Dated, (July 12th, 1886.)
(Signature of Sureties.)

(Add acknowledgment, affidavit of sureties, and approval of the surrogate or of a
judge of the Supreme Court.)

 

No. 20.
Undertaking to stay the execution of a decree for payment of money.
Anté, p. 388; Code of Civil Pro. §§ 2578, 2581.

(Proceed as in last form to the *, then add,) in the sum of $ 4
that if said decree or any part thereof is affirmed, or the appeal is dis-
missed, the appellant will pay all costs and damages which may be
awarded against him upon the appeal, and will pay the sum directed to
be paid by said decree, or the part thereof as to which said decree is
affirmed.

Dated (July 12th, 1886.)
(Signatures, acknowledgment, affidavit, and approval as in preceding form.)

 

No, 21.

Undertaking to stay Surrogate’s decree or order for delivery of prop-
erty.

Ante, p. 388 ; Code of Civil Pro. §§ 2578, 2581.

(Proceed asin No. 19 to the * substituting order for decree if neces-
sary, thet add) in the sum of $ , that if said decree (or order), or
any part thereof is affirmed, or the appeal is dismissed, the appellant
will pay all costs and damages which may be awarded against him
upon the appeal, and will deliver the property so directed to be deliv-
ered, or the part thereof as to which the decree (or order) is affirmed.

(Date, signatures, acknowledgment, afidants, and approval as in No. 19.)
558 AppENDIx oF Forms.

No. 22.
Undertaking to stay execution of decree or order for commitment, ete.
Ante, p. 390; Code of Civil Pro. §§ 2579, 2581.

(Proceed as in No. 19 to the *, then add) in the sum of $ ;
that if the decree (or order) appealed from, or any part therecf is
affirmed, or the appeal is dismissed, the appellant will, within twenty
days after the affirmance or dismissal, surrender himself in obedience
to said decree (or order) to the custody of the sheriff of the county
wherein he was directed to be committed.

Dated (July 12, 1886.)

(Signature of sureties.)
' (Add acknowledgment, affidavit of sw-eties and approval.)

No. 23.
Undertaking to stay execution on appeal to the County Court.
Ante, p. 423; Code of Civil Pro. § 3050.

(Title of cause.)

Whereas, on the day of , 1886, the above named
(plaintiff) recovered a judgment in this action against the above
named (defendant) for dollars damages and dollars costs ;
and

Whereas, the said defendant intends to appeal from said judgment
to the County Court of the county of '

Now, therefore, we, and » the
undersigned sureties, do jointly and severally undertake that if said
appeal is dismissed, or if judgment is rendered against the appellant
in the appellate court, and an execution issued thereupon is returned
wholly or partly unsatisfied, we, the said sureties, will pay the amount
of the judgment, or the portion thereof remaining unsatisfied, not
exceeding the sum of dollars.

Dated (July 12, 1886.)
: (Signature of sureties.)
(Add acknowledgment and affidavit of sureties as in No. 9.)

(Approval indorsed on the undertaking.)
I approve of the within undertaking and of the sureties thereto.

Dated (July 12, 1886.)
(Signature of Justice or County Judge.)
APPENDIX oF Forms. 559

No. 24.

Undertaking to perfect appeal from final order in summary pro-
ceedings.

Ante, p. 88; Code of Civil Pro. §§ 2262, 3050.

(Title of the proceeding.)

Whereas, on the day of , 188 , in a special proceeding
instituted before » a justice of the peace of the town of ‘
in the county of , to recover the possession of certain real prop-
erty, a final order was made by said justice, determining that
is a lessee (or tenant) of the petitioner , holding over after
default in payment of rent, and awarding the possession of said prop-
erty to the petitioner :

And, whereas, the said , feeling aggrieved by said order,
intends to appeal therefrom to the County Court of the county of

>

Now, therefore, we, and , the undersigned
sureties, do hereby jointly and severally undertake that if the said
appeal is dismissed, or if judgment is rendered against the appellant
in the appellate court, and an execution issued thereupon is returned
wholly or partly unsatisfied, we, the said sureties will pay the amount
of the judgment, or the portion thereof remaining unsatisfied, not
exceeding the sum of dollars.

(Date.) (Signature of sureties.)

Add acknowledgment and affidavit of sureties as in No. 9.)

l approve of the foregoing undertaking, the amount thereof, and
the sureties therein.
(Daie.) (Signature of County Judge.)

 

No. 25.

Undertaking on appeal from final order in summary proceedings to
stay issuing and execution of warrant.

Ante, p. 88 ; Code of Civil Pro. § 2262.

(Title of the proceeding.)

Whereas, on the day of , 188 , in the above entitled pro-
ceeding before __—, Justice of the Peace, to recover the possession of
certain real property, a final order was made by said justice determin-
ing that is a lessee (or tenant) of the petitioner, » hold-
ing over after default in the payment of rent, and awarding possession
of said propery to the petitioner:

And, whereas, the said , feeling aggrieved by said order, has
appealed therefrom to the County Court of the county of , and
intends to apply to the County Judge of said county for an order stay-
ing the issuing and execution of a warrant to remove the appellant
from said property:

Now, therefore, we, and , the undersigned sureties,
do hereby jointly and severally undertake to and with said petitioner
in the sum of dollars, that if upon the appeal a final determi-
nation is rendered against the appellant, he will pay all rent accruing
560 AprenvDix or Forms.

or to accrue upon the premises described in said order, or, if there is no
lease thereof, the value of the use and occupation of said premises sub-
sequent to the institution of special proceeding.

(Date.) (Signatures of Sureties.)
NS 8) acknowledgment and affidavit of sureties as in No, 9, and approval as in

 

No. 26.

Undertaking on appeal from a final order in proceedings against ani-
mals straying.
Ante, p. 426 ; Code of Civil Pro. § 3105.

(Title of the proceeding.) : :

Whereas, on the _— day of , 1886, in a special proceeding
then pending before him for the sale of animals alleged to have been
seized while straying upon the highway and for the disposition of the
proceeds thereof as provided in title nine of chapter nineteen of the

Code of Civil Procedure, a final order was made by >a Justice
of the Peace of the town of , in the county , in favor
of the petitioner.

And, whereas, the owner of said animals feeling aggrieved
by said order intends to appeal therefrom to the County Court of the
county of 5

Now, therefore, we, and , the undersigned sureties,

do hereby jointly and severally undertake, that if said appeal is dis-
missed, or if judgment is rendered against the appellant in the appel-
late court, and an execution issued thereupon is returned wholly or
partly unsatisfied, we, the said sureties, will pay the amount of the
judgment, or the portion thereof remaining unsatisfied, not exceeding
the sum of dollars; and we do also hereby jointly and severally
undertake that if the final order appealed from is affirmed, or if the
appeal is dismissed the appellant will pay all sums which the justice
awards against him, on the hearing, after the determination of the
appeal, as prescribed in section 3106 of the Code of Civil Procedure,
not exceeding the sum of dollars.

(Date.) : : (Signatures of Sureties.)
Add acknowledgment, affidavit of sureties, and approval. .

No. 27.

Notice of filing undertaking given on appeal.
Ante, p. 99; Code of Civil Pro. § 1334.

(Title of the Cause.)
To kh. FF,
Att'y for Respondent.
Sir:
Take notice that the within is a copy of an undertaking, duly
filed in the office of the Clerk of the county of >on the day
of > 188

Yours, &c.,
C.K, App'lt’s Atty,
(Office address.)
Appenpix or Forms. 561

No. 28..
Notice of exception to sureties.
Anite, p. 100; Code of Civil Pro. § 1335.

(Title of the cause.)

Siz: Take notice that the respondent excepts to the sufficiency of
each of the sureties who executed the undertaking filed by the appel-
lant in the office of the clerk of the county of , on the day
of , 188 , on appeal to the Court from the judgment
(or creer) entered in this action.

Dated, , 188 .

Yours, &c.,
R. F., Attorney for Repondent.

(Office address.)
To C. K., Esq., Attorney for Appellant.

 

No. 29.
Notice of justification of sureties in the original undertaking.

Ante, p. 101; Code of Civil Pro. § 1335.

(Title of the cause.)

Sir: Take notice, that and , the sureties who executed
the undertaking given by the appellant, on his appeal to the
Court from the judgment (or order) entered in this action, a copy of
which was served on you on the day of , 188 , will justify
before Hon. , Justice of the Court (or County Judge),
at his office in the of , on the day of
at (ten) o’clock in the forenoon,

Dated, ,» 188.

Yours, ete.
C. K., Attorney for Appellant.

(Office address.)
To R. F., Esq., Attorney for Respondent.

« 186 5

 

No. 30.

Notice of justification of sureties in a new undertaking given on
appeal.

Ante, p. 101; Code of Civil Pro. § 1335.

(Title of the cause.)
Sir: Take notice, that , residing at , by occupation a
, and , residing at » by occupation a
the sureties in a new undertaking executed on behalf of the appel-
lant in place of, and.to the same effect as, the undertaking filed in
the office of the clerk of the county of , on the day of ,
188 , a copy of which was heretofore served on you by said appellant,
36
562 APPENDIX oF Forms.

will justify before Hon. , Justice of the Court (or
County Judge), at , in the of , on the day of ’
1/6 , at o’clock in the forenoon.

Dated, 188 .

Yours, etc.
C. K., Attorney for Appellant.
(Office address.)
To R. F., Esq., Attorney for Respondent.

 

No. 31.
Allowance of sureties on justification.
Ante, p. 103; Code of Civil Pro. § 1335.

I find the sureties in the within undertaking sufficient, and hereby

allow them, and each of them.
(Date.) (Signature and official title of judge.)

 

No. 32.
Notice of allowance of sureties upon justification.
Ante, p. 103; Code of Civil Pro. § 1335.

(Title of the cause.)

Sir: Take notice, that on the day of , 188 , on justifi-
cation before Hon. , Justice of the (Supreme) Court, the sure-
ties in the undertaking given by the appellant on appeal to the
Court from the (judgment) entered in this action, were found sufficient
by said Justice, and that he thereupon allowed them, and each of them.

(Date.) (Signature of appellant’s atty.)

To , Attorney for Respondent.

 

No. 33.
Notice of deposit with clerk in lieu of an undertaking.
Ante, p. 89; Code of Civil Pro. § 1306.

(Title of the cause.)

Siz: Please take notice, that in lieu of giving an undertaking, the
appellant has this day deposited with the clerk of the county of ‘
the sum of dollars for the purpose of perfecting his appeal to
the General Term of the Court from the judgment in this action
entered with said clerk and for the purpose of staying the execution
of said judgment.

Dated, , 188.

Yours, ete.
A. B., Attorney for Appellant.

( address.
To C. D., Esq., Attorney for Respondent. ena
APPENDIX oF Forms. 563

No. 34.
_ Affidavit to obtain a stay of proceedings on appeal from an order.

See ante, p. 82.

(Title of the cause.)
(Venue.)

Thomas Caldwell being duly sworn says: that he is the attorney
for the defendant in the above entitled action.

That said action is brought (to recover the amount alleged to be
due the plaintiff from the defendant upon two promissory notes given
to the plaintiff by the defendant.)

That on the day of , 188 , issue was joined in said
action by the service of defendant’s answer interposing the defense of
usury.

That on the day of , 188 , on motion of the plaintiff,
an order was made by Hon. , Justice of this Court, directing
the defendant to appear at a time and place therein specified before

, 2 referee appointed in and by said order, to be examined
before trial as to the circumstances attending the loan of the moneys
for which said notes were given, the negotiations between the parties at
the time of making said loan, and the terms thereof.

That afterwards, on notice to the plaintiff, defendant moved ata
Special Term of this Court held , on the day of ;
188 , for an order vacating the aforesaid order, which motion was
denied and defendant was directed to appear before said referee on the

day of . , next, and submit to the examination directed by

the original order. That said order of the Special Term was entered

in the office of the clerk of the county of , on the day of
, 188.

That defendant has appealed from such order of the Special Term
to the General Term of this court: that said appeal cannot be brought
to a hearing before the time fixed for defendant’s examination by the
order appealed from, and that unless the execution of said order be
stayed, the defendant will be deprived of the benefit of his appeal.

(7f the motion is to be made ex parte, add,) That no previous appli-
cation for a stay of the execution of such order has been made by the
defendant.

(Jurat.) (Signature.)

No. 35,
Ex parte order staying execution of order appealed from,
Ante, p. 84; Code of Civil Pro. § 1351.

(Title of the cause.)
On reading and filing the affidavit of ,and on motion of
, attorney for the (defendant),
ORDERED, that the execution of the order of the (Supreme) Court,
made ata Special Term thereof, held at , on the day of
, 188 , and entered in the office of the clerk of the county of
, on the day of , 188 , be, and the same is hereby
564 APPENDIX oF Forms.

stayed until the decision of the appeal taken by the (defendant) there-
from to the General Term of this court (upon the filing with the clerk
of the county of , of an undertaking executed, on the part
of said defendant, by two sufficient sureties, to the effect that the said
defendant will pay all costs and damages which may be awarded
against him on such appeal, not exceeding five hundred dollars, and
upon the service upon the attorney for the plaintiff of a copy of this
order and of the affidavit upon which the same was granted, or such
other terms, if any, as the judge may in his discretion impose.

(Date.) (Signature.)
(Official title.)

No. 36.

Affidavit to procure an order staying the issuing of a warrant in
summary proceedings.

See ante, pp. 88, 426.

(Title of the proceeding.)

(Venue.)

R.38., being duly sworn says, that on the day of , 188 ,
in a proceeding then pending before C. D., a Justice of the Peace of
the town of , county of » to recover the possession of cer-
tain premises therein occupied by deponent, a final order was made by
said justice, awarding delivery ot the possession of said premises to the
petitioner, L. M., and establishing that deponent is a lessee (07 tenant)
of said petitioner holding over after default in payment of rent.

That on the day of , 188 , deponent appealed from said
final order to the County Court of the county of , by serving
upon the petitioner named in said order, and upon said justice, a notice
of appeal, a copy of which is hereto annexed, and at the same time
paying to said justice the costs of the proceeding awarded to the peti-
tioner by said order, and the sum of two dollars as the fee of the jus-
tice for making the return. That at the time of serving said notice of
appeal upon said justice, deponent delivered to him an undertaking,
duly executed by sureties approved by him, a copy of which is hereto
annexed, and at the time of serving the said notice of appeal upon the
petitioner, deponent delivered to him a copy of said undertaking, with
a notice of the delivery thereof to said justice.

That deponent has taken said appeal in good faith, and is desirous
of staying the issuing and execution of a warrant removing him from
said premises until the final determination of the County Court upon
the appeal.

(Jurat.) (Signature of deponent.)

No. 37.
Order by County Judge staying warrant in summary proceedings.
Ante, pp. 88, 426; Code of Civil Pro. § 2262.

(Title of the cause.) :
On reading and filing the affidavit of , by which it appears
that has appealed to the County Court of the county of
APPENDIX oF Forms. 565

from a final order made in the above entitled proceeding by jl
Justice of the Peace, determining that the appellant is a tenant (or
lessee) of the petitioner , holding over after default in payment
of rent, and awarding delivery of the premises so held to the petitioner;
and the said appellant having given the security required to perfect
the appeal and to stay the execution of. the order appealed from, and
also an undertaking to the petitioner in a sum, and with sureties
approved by me, to the effect that if upon the appeal, a final deter-
mination is rendered against the appellant, he will pay all rent accruing
or to accrue upon the premises, or, if there is no lease thereof, the value
of the use and occupation of the premises subsequent to the institution
of the special proceeding; and on motion of , attorney for the
appellant, it is

ORDERED:

That the issuing and execution of a warrant for the removal of the
appellant from said premises be, and ishereby stayed pending said

appeal.
PY nate.) (Signature of Judge.)

 

No. 38.

Order staying proceedings upon a final order in proceedings against
animals straying.

(Title of the proceeding.)

It appearing by the affidavit of , thatonthe day of ¥
1886, a final order was made by . , Justice of the Peace, in favor
of the petitioner in the above entitled proceeding directing the sale of
certain animals, the property of the said , Seized as strays upon
the highway, and the disposition of the proceeds thereof as provided
in title 9 of chapter 19 of the Code of Civil Procedure, and the said

having perfected an appeal from said order and given security
thereupon as provided in section 3105 of that act, and on reading and
filing the said affidavit, and on motion of , attorney for the appel-
lant, it is

ORDERED :

That all proceedings upon said final order be and the same are
hereby stayed, and that the possession of the animals so seized be
delivered to the appellant.

(Date.) (Signature of County Judge.)

No. 39.

Order staying proceedings on appeal from order determining demand
for the return of animals seized as strays.

Code of Civil Pro, § 3103.
(Title of the proceeding.)
On reading and filing the affidavit of , (and the duly
authenticated transcript of the proceedings had in this matter before

the Justice before whom the proceeding is pending) and on motion of
» attorney for the said » itis
566 APPENDIX or Forms.

ORDERED:

That the execution of the order entered in the minutes of ?
Justice of the Peace, determining the demand of for the
return of theanimals seized in this proceeding, and all proceedings upon
the petition filed therein, be and the same are hereby stayed upon the
filing of this order with said Justice.

(Date.) (Signature of County Judge.)
No. 40.
Notice requiring the appellant to file return.
Ante, p. 266.
(Title of the cause.)

Sir: Please take notice, that the respondent hereby requires the
appellant to cause the return in this cause to be filed with the clerk of
the Court of Appeals within ten days after the service of this notice.

 

(Date.) (Signature of Respondent's Attorney.)
(Office address.)
To » Attorney for Appellant.
No. 41.
Affidavit of failure to file return.
Ante, p. 266.
(Title of the cause.)
(Venue.)

A. B., being duly sworn, says that he is the attorney for the above
named respondent, O. P. That in an action pending in the Supreme
Court in which said O. P. was plaintiff, and said 8. 'T. was defendant,

a judgment was rendered for the plaintiff for the sum of $ » and
that on the day of , 188 , said judgment was duly
entered in the office of the clerk of the county of ; and that

a copy of said judgment with notice of such entry was thereupon duly
served upon O. D., the attorney for the defendant.

That the defendant appealed from said judgment to the General
Term of the Supreme Court; that on said appeal said judgment was in
all things affirmed by the appellate court; that judgment of affirmance
was thereupon duly entered in the office of the clerk of the county of

,onthe day of , 188 , and that a copy of
said judgment with notice of such entry was on that day served upon
the attorney for the appellant.

That thereafter the said defendant appealed to this court from the
judgment of the General Term; that such appeal was perfected on the

day of , 188 , by the service of a notice of appeal, a copy
of which is hereto annexed, on said clerk and on deponent, and by the
giving of an undertaking, a copy of which is also hereto annexed, in
the form and to the effect required by statute to perfect the appeal,
and stay the execution of the judgment appealed from.

That said appellant failed and neglected to cause the proper return
APPENDIX OF Forms. 567

on said appeal, or any return, to be filed with the clerk of this court
within twenty days after said appeal was so perfected; that after the
expiration of said twenty days, and on the day of , 188 ,
deponent served upon the attorney for the appellant personally at his
office in , notice in writing requiring the appellant to cause
said return to be filed with the clerk of this court within ten days after
service of said notice; that a copy of said notice, with an admission of
due and personal service thereon indorsed, is hereto annexed.

That more than ten days have elapsed since the service of said
notice; that the appellant has wholly failed and neglected to file any
return with the clerk of this court, as appears by the certificate of said
clerk hereto attached.

(Jurat.) (Signature.)

No. 42.
Order dismissing appeal for want of prosecution.

Ante, p. 266.

(Title, ete.)

On reading and filing the affidavit of , by which it appears
that this appeal was perfected on the day of , 188 ; that on
the day of , 188 , the respondent served written notice
upon the appellant’s attorney requiring the appellant to file the proper
return herein with the clerk of this court within+ten days after such
service, and on reading and filing the certificate of said clerk, dated
the day of , 188 , by which it appears that no return
herein has been filed with him by said appellant, and on motion of.

, attorney for the respondent, it is

ORDERED:

That the appeal to this court from the judgment of the General
Term of the Supreme Court, entered on the day of , 188 , affirm-
ing the judgment in favor of the plaintiff in this action, entered in the
oftice of the clerk of the county of , on the day of , 188,
be and the same hereby is dismissed for want of prosecution, with
costs,

No. 48.
Note of Issue—Supreme Court, First Department.
Ante, p. 317.
SUPREME COURT—Generat TERM.
David Davis and Isaac Cohen, | A

 

bram Aaronson,

: Appellants, | Attorney for Appellants,
against + Appeal from a Judgmett.
The Broadway Savings Bank, | McDonald & Skinner,

Atty’s for Respondent.

 

Respondent, J

Cause tried before Hon.
Notice of appeal served ,188 .
568 APPENDIX oF Forms.

Printed papers and points served and filed in accordance with Rule
41 of the General Rules of Practice.
No. of case of Calendar

 

No. 44.
Note of Issue—Superior Court, City of New York.
Ante, p. 44.

SUPERIOR COURT OF THE CITY OF NEW YORK.
GuneraL TERM.

 

The Last Hope Gold Mining Company, Reynolds & Cox,

. Appl't., Atty’s for App'lts.
against Appeal from a Judgment.
The North River Transportation Co., Andrews, White & Andrews,
Resp’t. Att’'ys for Resp’ts,

 

Cause tried before Hon.

Notice of appeal served

Printed papers and points served and filed in accordance with Rnle
41 of the General Rules of Practice.

No. 45.
Note of Issue—Common Pleas.
Ante, p. 318.
NEW YORK COURT OF COMMON PLEAS.

GENERAL TERM.

 

The Co-Operative Stove Manufacturing )

Company of the Cityof New York, | o.oo... , Atty for Respondent.
Respondent, | Appeal from an order of ,
against made by Hon. , dated 188
Harvey Lake and Richard Cox, | “tttrttttttereeeees , Atty for Appellant,
Appellants.

 

Issue joined ,188 . Notice of appeal served , 188 .
APPENDIX oF Forms. 569

No. 46./
Note of Issue—City Court of New York.
Anite, p. 319.
CITY COURT OF NEW YORK.

 

 

 

Nicholas Van Antwerp,
Resp't. | .--sseseceeeseece , Ai’y for Res t,
against Appeal from Judgment entered on the
Th : decision of. R.

eodoreRichmond, foc ec ecee sees , Atty for Appellant,

Appl.

Notice of appeal served » 188
No. 47.

Note of Issue—Superior Court of Buffalo.
Ante, p. 318.

SUPERIOR COURT OF BUFFALO.
GENERAL TERM.

 

Merchants National Bank,

Appellant, | ...........ss ee enee , At’’y for Appellant.
against Appeal from Judgment entered on the
report of , Referee.
The Buffalo Loan & Improvement Co. | ....0.. ........4. , Att'y for Respondent.

Respondent.

 

Issue joined , 188 . Notice of appeal served » 188 .

 

No, 48.
Note of Issue—Preferred Cause—Fourth Department.
Ante, p. 318,
SUPREME COURT—Generat TER.
In the Matter of the Probate of the

 

 

last Will and Testament Preferred Cause, Class 7, Subdivision 5,
of section 791, Code Civil Procedure.
Andrew McLeod, deceased.
Appeal from decree rendered by , Surrogate of the county of

» dated , 188 , admitting will to probate.
id Wiaahe tsk is aoe sheave , Att’y for Proponents.
since area cierateta’s .., Att’y for » Residuary Legatee, Respondent.
tage eee oo eee, Att’y for » Contestant, Appellant.

Notice of appeal served........, 188
570 Apprenpix oF Forms.

Clerk will please file the above note of issue, and place the appeal
herein on the calendar of the next General Term of this court as a pre-
ferred cause, according to the above note of issue.

Yours, etc.,
Attorney fOr ccescccscees 7

(Affidavit to accompany above note of issue.)
(Title of proceeding.)
Venue.)

(
since ata veeuandiome , being duly sworn says, that he is the attorney
for the in the above entitled proceeding ; that the case on
appeal has been settled and signed by , the Surrogate before
whom such proceeding was tried, and was filed in the office of said
Surrogate on the day of , 188.
(Jurat.) : (Signature.)

 

No. 49.
Notice of argument on appeal to the General Term.

Ante, p. 319.

(Title of the cause.)

Sir: Take notice, that the appeal herein will be brought on for
argument before this court at the next General Term thereof, to be
held at , in the of , on the day of , 188 ,
at the opening of the court on that day, or as soon thereafter as coun-
sel can be heard.

Dated the day of 188 .

Yours, etc.,
(Signature and office address.)

LO sesiaeeses;

Atty for

No. 50.
Notice of argument—Court of Appeals.
Ante, p. 259,
COURT OF APPEALS.

James McFarlane,
Appellant,
against
Alexander McLeod,
Respondent. J

 

 

Srrs: Take notice, that the appeal herein, which originated in the
judicial district, will be brought on for argument at the next

term of this court, to be held at the Capitol, in the city of Albany, on
the day of , 188 , at the opening of the court on that day,
Apprenpix or Forms. 571

or as soon thereafter as counsel can be heard (and will be moved as a

preferred cause on the ground that, etc., stating the ground of prefer-

ence.)
Yours, etc.,

O. P., Attorney for

To A. B., Esq., Attorney for » and

To the Clerk of the Court. :
(Add to notice filed with the clerk proof of, or admission of service as below.)

No. 51.
Admission of service of notice of argument.
Ante, p. 259.
Due service of a copy of the above notice is hereby admitted this

day of , 188.
A. B., Attorney for

No. 52.
Affidavit of service of notice of argument.
Ante, p. 259.

(Title of cause.)

( Venue.)

G. H., being duly sworn says, that on the day of , 188 , at
, N. Y., he served the annexed notice of argument on A. B., the

attorney for the above named (respondent), by delivering a true copy
thereof to said A. B. personally, and leaving the same with him.
(Jurat.) F (Signature.)

 

No. 53.
Stipulation reserving a cause for a day certain.

Ante, p. 261.

(Title of the cause.)
It is hereby stipulated that the above entitled cause, being No.

, on the general calendar, be reserved and the argument thereof
be deferred, until the day of , 188 ; and that it be placed

on the calendar for that day.
(Date.) (Signatures of attorneys.)
572 APPENDIX OF Forms.

No. 54.
Note of exchange of causes.
Ante, p. 261.
COURT OF APPEALS.

Fall River Barge Co.
against (= No. 47.

 

New York Elevator Co.

 

COURT OF APPEALS.

 

Arthur McCormick

against Calendar No. 204.
Nicholas Van Dorn.

 

Stipulated that the above causes be exchanged one for the other,
and be placed upon all subsequent calendars accordingly.
(Date.) (Signatures of attorneys or counsel.)

No. 55.
Case containing exceptions to review judgment entered on a verdict.

See ante, p. 141.

(Title of the cause.)

This action was commenced on the day of » 188 , by
the service of the summons therein with a copy of the plaintiff’s com-

laint.

The defendant’s answer was served on the day of ;
188 .
The issues thus joined come on for trial before Hon. » and
a jury at a Circuit Court held at the Court House in the of
county of ,onthe day of , 188.

The plaintiff’s counsel, after opening the case for the plaintiff,
called as a witness , who testified as follows: (I reside at ‘i
in this county, and know the parties to this action. I was present at
the office of the plaintiff on the fifth day of October last, and heard a
conversation between the plaintiff and defendant in regard to the sale
of, ete., setting forth ull the testimony of the witness, material to the
questions raised, in the narrative form.) The following question was
then put to the witness by the plaintiff’s counsel:

. At that conversation, did you hear, ete, giving the words
used.

2

The defendant’s counsel objected (state objection.)
The court overruled the objection, to which ruling defendant’s
counsel duly excepted.
APPENDIX oF Forms. 573

The witness then answered as follows: (Insert answer of the wit-
ness and the remainder of his testimony.)

The plaintiff’s counsel then called as a witness , who testified
as follows: (Insert testimony of the witness so far as material to the
a to be reviewed, and the objections and exceptions of the appel-
lant.

The plaintiff here rested.

The defendant then moved for a non-suit upon the following
grounds.

First: That the plaintiff (etc., stating the grounds in full.)

The court denied the motion, to which ruling the defendant duly

excepted.
The defendant’s counsel, after opening his case, called as a witness
for the defendant, , who testified as follows: (Insert so much of

the testimony of the witness as is material to the questions raised.)

Upon his cross-examination the witness testified as follows: (Insert
testimony given on cross-ecamination.)

Upon his re-direct examination the witness testified, etc.

The defendant here rested.

The plaintiff then offered in evidence the letter, shown to the wit-
ness , marked Plaintiff’s Exhibit No. 1.

The defendant objected to the evidence upon the following grounds:

First: That, ete.

The court overruled the objection and received the letter in evi-
dence, to which ruling the detendant’s counsel duly excepted.

The case was then presented to the jury by the counsel for the
respective parties, and the court then charged the jury as follows:
(Insert so much of the charge as is material to any question presented
by uppellant’s exception to the charge or to a refusal to charge.)

The defendant excepted to the charge as follows:

First: To that portion of the charge in which the court states the
rule of damages substantially as follows: “If you find that the
defendant” (etc., giving substance of portion excepted to).

The defendant requested the court to charge the jury as follows:
(State the request). The court declined so to charge, to which defend-
ant excepted.

The jury, after deliberating on their verdict, returned into court,
and 1endered a verdict for the plaintiff for dollars.

The defendant’s counsel then moved upon the minutes of the judge
to set aside the verdict and for a new trial upon the ground (stute
grounds of motion.)

The court entertained the motion, and denied the same.

All the evidence material to the questions sought to be reviewed

and all the proceedings had upon the trial are above stated.
(Signature of Attorney.)
(Office address.)
574 APPENDIX oF Forms.

No. 56.

Notice indorsed on proposed case.
(Title of cause.)
Sir: Please take notice that the within is copy of the case proposed

by the defendant in this action.
(Date.) (Signature and office address.)

To » Att’y for ‘

No. 57.
Proposed amendments to case.

Ante, p. 148.

(Title of the Cause.)
Please take notice that the plaintiff hereby proposes the following

amendments to the proposed case containing exceptions heretofore
served by the defendant herein: viz.

First amendment: At page 7, line 22, strike out the words, “to
which ruling defendant duly excepted.”

Second amendment: At page 8, line 9, strike out the word
“stocks ” and insert instead the word “ bonds.” ,

Third amendment: At page 11, line 4, after the words “ without
notice to me,” add “except as I have before stated.”

Fourth amendment: At page 11, line 9, strike out, etc.
(Signature of Attorney.)
(Office address,)

To , Esg., Att’y for Defendant.

No. 58.
Notice indorsed on proposed amendments to case.

See Ante, p. 148.

(Title of the cause.) ; tee
Str : Please take notice that the within is a copy of the amendments

proposed by the plaintiff to the case proposed by the defendant in this

action,
(Date.)

(Signature and office address.)
To , At’y for Defendant. ,
Apprenpix oF Forms. 575

No. 59.
Notice of settlement of case.

See Anite, p. 159.
(Title of the cause.)

Ste : Please take notice that the proposed case heretofore served upon
you, together with the proposed amendments thereto, will be submitted

for settlement to Hon. , the before whom this
cause was tried, at , in the of , on the day
of ; 188 , at ten o’clock in the forenoon.

(Date.)

Yours &c.,
(Signature and office address.)
To » Esq., Att’y for
No. 60.

Order at foot of case, directing clerk to file, etc.

Ante, p. 152.
(Title of the cause.)

The foregoing case and exceptions having been settled and signed

by me as above on the day of , 188,

ORDERED:

That said case and exceptions, as settled and signed, be filed in the
office of the clerk of the county of » and be by him annexed to
the judgment-roll in this action.

Dated, , 188.

(Signature of Judge or Referee.)

No. 61,
Affidavit of omission to file case.

Ante, p. 152.
(Title of the cause.)

( Venue.)
C. D., being duly sworn says, that he is the attorney for the plaint-
iff in the above entitled action. That on the day of ,188 ,

a case containing exceptions proposed by the defendant herein,
together with the plaintiff’s proposed amendments thereto were, pur-
suant to notice, submitted for settlement to Hon. , the Justice
before whom this cause was tried; that on said day of i
188 , said case was settled and signed by said Justice, and an order
was made by him, dated on that day, directing that said case, as set-
tled and signed, be filed in the office of the clerk of the county of
and be by said clerk annexed to the jndgment-roll in this action,

And deponent further says, that more than ten days have elapsed
576 ApprenDix or Forms.

since said order was made; and that said case has not been filed in the

office of the clerk of the county of ,as in and by said order
directed.
(Jurat.) (Signature.)
No. 62.

Order declaring case abandoned.
Ante, p. 152.
(Title of the cause.)

On filing the affidavit of , the attorney for the plaintiff in the
above entitled action, verified on the day of » 188 , and on
motion of said attorney, it is

ORDERED:

That the case in this action settled and signed by Hon. 5
Justice of this court, on the day of , 188 , and directed to
be filed in the office of the clerk of the county of , by an order

made by said Justice dated on that day, be and the same is hereby
declared abandoned.
(Date.)
J.L., Clerk,

No. 63.
Notice of motion for a new trial.
Ante, p. 524,

(Title of the cause.)

Sir: Take notice, that upon the case and exceptions made, settled
and signed in this action (or upon the affidavits of , copies of which
are herewith served upon you, and upon all the pleadings and proceed-
ings in this action), this court will be moved at the next Special ‘Term

thereof, to be held at the in the of , on the day
of , 188 , at the opening of the court, or as soon thereafter as
counsel can be heard, for a new trial of this action.

Dated , 188 .

Yours, etc.,
Attorney for .
N. Y.
To » Attorney for tke
Appenpix or Foras. 577

No. 64.

Order granting a new trial.

At a Special Term of this court held at » in the of
» on the day of 188 ,
Present, Hon. » Justice.

SUPREME COURT.

Arthur Arrundell
against
John St. John.

 

 

A motion for a new trial of this action having been heard at this

term upon a case containing exceptions, Now on motion of ;
counsel for the defendant, after hearing , counsel fur the
plaintiff in opposition thereto, it is*

ORDERED:

That a new trial of this action be and the same is hereby granted on
payment of (insert the directions as to terms.)

—_—.

No. 65.
Order denying motion for a new trial.

(Proceed as above to the *, then add)

ORDERED :

That the motion for a new trial of this action be and the same is
hereby denied with costs.

No. 66.
Order directing that exceptions be heard at General Term.

Ante, p. 510. Code of Civil Pro. § 1000.

(Title of the cause.)

This action having been brought to trial before Hon. ,
Justice presiding, and a jury, at a Circuit Court held at the Court
House in the of , on the day of
188 3; (and the jury having rendered a verdict upon such trial in
favor of the plaintiff ;) and the defendant having taken certain excep-
tions to rulings made by said justice upon said trial, now, on motion of

, attorney for the defendant, after hearing » attorney
for the plaintiff, in opposition thereto, it is

ORDERED:

That the exceptions taken by the defendant upon the trial of this
action be heard in the first instance at the General Term of this court;

a7
578 APPENDIX oF Forms.

and that the entry of judgment (upon the verdict) be suspended in the
meantjme.

; Let this order be entered in the office of the clerk of the county
0

(Date) (Signature.)

No. 67.

Order on affirmance of judgment.

At a General Term of the Supreme Court held at , on the
day of , 188 .
Present, Hon. , Presiding Justice, and and
, Justices.

(Title of the cause.) A

The appeal in the above entitled action having been heard at this
term, Now, on motion of , for the respondent, after hearing

for the appellant, it is

ORDERED:

That the judgment entered in this action in the office of the clerk
of the County of ; on the day of , 188 , be
and the same is hereby in all things affirmed, with costs of said appeal
to the respondent.

No. 68.
Judgment of affirmance.

Code of Civil Pro. § 1317.

(Title, etc.)

The appeal taken by the (defendant) from the judgment entered in
this action on the day of , 188, in the office of the clerk
of the County of , having been brought to a hearing and
heard at a General Term of the (Supreme) Court held at , on
the day of > 188 , and an order of said General Term

having been made and entered affirming said judgment with costs of
said appeal to the respondent.

Now, on motion of attorney for the respondent, it is
hereby

ADJUDGED,

That said judgment be and the same is hereby in all things affirmed,
and that the respondent recover of the appellant » the

sum of dollars, costs of said appeal.
APPENDIX oF Fors. 579

No. 69.
Order on reversal of judgment.
At a General Term of the Supreme Court, held at on
the day of , 188 ,
Present : Hon. , Presiding Justice, and , and > Justices.

(Title of the cause.)

The appeal in the above entitled action having been heard at this
term, now, on motion of , attorney for the appellant, after hear-
ing , attorney for the respondent, it is

ORDERED:

That the judgment entered in this action in the office of the clerk
of the county of , on the day of , 188 , be and the same
is hereby wholly reversed and a new trial ordered, with costs (to abide
the event, or such other direction as is indicated in the memorandum
of the decision.)

No. 70.
Judgment of reversal.

(Title, etc.)
The appeal taken by the (defendant) from the judgment entered in
this action in the office of the clerk of the county of , on the
day of , 188 , having been brought to a hearing and
heard at a General Term of the (Supreme) Court, held at on the
day of , 188 , and an order of said General Term having

been made and entered reversing said judgment, and ordering a new
trial (with costs to abide the event.)

Now, on motion of , attorney for the appellant, it is hereby

ADJUDGED:

That the judgment entered in this action in the office of the clerk
of the county of , on the day of , 188 , be and the
same is hereby wholly reversed; that a new trial of said action be had
in this court; and that (Insert direction as to costs.)

 

No. 71.
Order for judgment on remittitur from Court of Appeals.
At a Term of the Supreme Court, held at on the
day of , 188.
Pesent, Hon. , Justice.

SUPREME COURT.

James Jackson

against
Duncan Steriing. J

 

The above named defendant having appealed to the Court of
Appeals from the judgment of the General Term of this court, entered
580 APPENDIX oF Forms.

in this action on the day of , 188 , affirming the judgmen
entered therein on the day of , 188 , in the office of the
clerk of the county of , and the Court of Appeals having heard

said appeal, and ordered and adjudged that the judgment so appealed
from be affirmed, and judgment entered for the plaintiff, with costs,
and the record remitted from that court having been filed, now, on
motion of , attorney for the plaintiff, it is

ORDERED:

That the said judgment of the Court of Appeals, be and the same
is hereby made the jndgment of this court; and that the judgment
entered herein on the day of , 188 , be and the same is
hereby affirmed, and that judgment of this court be entered herein
affirming said judgment, with costs of said appeal against the defend-
ant to be taxed.

No. 72.
Judgment of affirmance on remittitur.

(Caption and title of the cause.)
The above named defendant having appealed to the Court of
Appeals from the judgment of the General Term of this court, entered

in this action on the day of , 188 , affirming the judgment
entered therein on the day of , 188 , in the office of the clerk
of the county of , and the Court of Appeals having heard said

appeal, and ordered and adjudged that the judgment so appealed from
be affirmed and judgment rendered for the plaintiff, with costs, and
the record remitted from that conrt having been filed, and an order
having been entered thereon making the judgment of the Court of
Appeals the judgment of this court, and directing the entry of a judg-
ment of aftirmance herein with the costs of said appeal against the
defendant, to be taxed,

Now, on motion of , attorney for the plaintiff, it is

ADJUDGED:

That the judgment in this action entered on the day of 5
188 , be and the same is hereby affirmed.

And it is further adjudged: That the plaintiff , recover of
the defendant , the sum of dollars, the amount of his costs

herein as taxed, and that he have execution against said defendant
therefor.

No. 73.
Judgment on appeal to the County Court.

(Caption and title of the cause.)
The above named (defendant) having appealed to this court from
the judgment rendered against him in this action on the day of
,188 , by , Justice of the peace of the town of
, county of , and the said appeal having been
APPENDIX oF Forms. 581

heard, and an order of this court having been entered thereon affirming
(or reversing) said judgment, with costs of said appeal to the 5

Now on motion of , attorney for the respondent (or appel-
lant, it is

AJUDGED:

That the judgment rendered by said , Justice of the
peace, on the day of , 188 , in favor of the plaintiff (or
defendant) in this action for the sum of damages and
dollars costs be and the same is hereby wholly reversed (or affirmed).

And it is further adjudged, that the said recover of the
the sum of dollars, the amount of his costs herein as taxed, and
that he have execution therefor.

No. 74.
Judgment of reversal on stipulation of respondent.

Code of Civil Pro. § 2062.

Ataterm of the County Court of the County of , held
at in the of ,on the day of , 188
Present, Hon. County Judge.

(Title of the cause.)
The aboved named (defendant) having appealed to this court from
the judgment rendered against him in this action on the day of
, 188 , by , Justice of the peace of the town of

in said county, and the respondent, within twenty days of the
service upon him of the notice of appeal, having served a written stip-
ulation upon (the attorney for) the appellant that the judgment so
appealed from may be reversed with five dollars costs, and disburse-
ments of the appeal, Now, on motion of , attorney for said
appellant, and in pursuance of said stipulation, it is
ADJUDGED:
That the judgment rendered by , Justice of the peace, on the
day of , 188 , in favor of the (plaintiff) in this action
for dollars damages and dollars costs be and the same
is hereby reversed.
And it is further adjudged that the said recover of the said
the sum of , the amount of the costs specified in said
stipulation and of the disbursements of the appeal, and that he have
execution therefor.
582 AppENDIx or Forms.

No. 75.
Offer of judgment on appeal to the County Court.

Code of Civil Pro. § 3070.
(Title of the cause.)

Take notice, that the above named , hereby offers to allow
judgment to be rendered in the County Court of county in
favor of the in this action for the sum of dollars.

(Date.)

Yours, &c.

(Signature of party making offer.)

No. 76.
Notice of acceptance of offer of judgment.

Code of Civil Pro. § 3070.
(Title of the cause.)

Please take notice that the above named , hereby accepts
the offer of the above named , dated the day of >
188 , to allow judgment to be rendered in the County Court of the
county of in favor of the in this action for
dollars.

(Date.) (Signature of party.)
No. 77.

Affidavit of service of notice of acceptance.

Code of Civil Pro. § 3070.

(Title of the cause.)
(Venue.)
sii Sora ace ianeeade , being duly sworn says, that he is the attorney for the
in the above entitled action; that on the day of :
188 , the above named served upon the deponent an offer in writ-
ing, dated on the day of , 188 , to allow judgment to be rendered
in the County Court of the county of , In favor of the in
this action for the sum of dollars; that on the day of ;
188 , at , deponent served the annexed notice of acceptance of
such offer on , the attorney for the , by delivering a copy
St said notice to said attorney personally, and leaving the same with
im.
(Jurat.) (Signature.)
APPENDIX OF Forms. 583

No. 78.
Judgment in the County Court upon offer.
Code of Civil Pro. § 3071.

(Caption and title of the cause.)

This action having been brought into this court by an appeal taken
thereto by the above named , from a judgment rendered against
him on the day of , 188 , by , Justice of the Peace,
for dollars damages and dollars costs, and the above named

having served upon the above named an offer in writing,
dated the day of , 188 , to allow judgment to be rendered
in this court in favor of the , for the sum of dollars; and
the said having by a notice in writing, dated the day of

, 188 , duly accepted said offer. Now on filing said offer, the
notice of acceptance thereof, and the affidavit of of the service
of the same upon the , itis

ORDERED AND ADJUDGED: ©

That the said recover of the said the sum of
dollars, the amourt of said offer, and have execution therefor.

No. 79.

Notice of the entry of judgment.

(Title of the cause.)

Siz: Please take notice that the judgment in this action, of which
the within is a copy, was entered in the office of the clerk of the county
of , on the day of , 188.

(Date.)

Yours, etc.,
Youne & Ricuarps, li?ys for :

(Office address.)
To » Esq., Att’y for

No. 80.

Notice of taxation of costs.
(Title of the cause.)
Sir: Take notice, that the within is a copy of the items of the
costs and disbursements in this action, and that the same will

be taxed by the clerk of the county of , at his office in the
on the day of , 188 , at o’clock M.
(Date.)

Yours, ete.,
(Signature and office address.)
To » Hsq., Ad’y for ;
584 APPENDIX oF Forms.

No. 81.

Affidavit of disbursements.
(Title of the cause.)
(Venue.)
A. B. being duly sworn says, that he is the attorney for the
, in the above entitled action; that the foregoing disbursements
have been actually made and incurred on the part of the » except
those hereinafter to be incurred, and those deponent believes to be
correctly stated; that the cause was necessarily on the calendar of the
court, the terms above stated exclusive of the term at which it
was argued or otherwise finally disposed of ; (and that all the require-
ments of Rule 6 of the Court of Appeals have been complied with in
all papers printed for use in that court.)
(Jurat.) (Signature.)
INDEX.

ACKNOWLEDGMENT : Page
Of undertakings on appeal...........06 satel GeuwUNew Mawseseieeea se sc, 96

ADMINISTRATOR :
Must be substituted in place of deceased party........csecceceeeesees 37, 41
Time within which an appeal may be taken by...........sseeeeeeoseees 59
When security not required to perfect appeal by ............ceeeeeeeeee 69
Preference of appeals to which administrator is a party... ...........0.- 157

AFFIDAVIT :
Want of title or defect in title disregarded. ........... 0. cece cece een eee 166
When a motion for a new trial may be made upon.............0-.eeeee 523
Of jurors not received to impeach their verdict..............0 es ee eee eee 543
That rule of Court of Appeals as to printing papers has been complied with. 492
OF CISHWFSEMISM TS. oo cei evaseisaieresess sleeateys acv-v. 00 ¢-dinasvbend Ml ekeinaaleena Keto, eiagetee we 496
Of service of notice of acceptance of offer of judgment........ ..... 430, 431
Cannot be used to aid or controvert return... 6... , cece eee eee cee eee ee 435
When return cannot be had, affidavits may be resorted to........... 434, 435
To present error in fact to County Court........... eee cece ee eee eee 439, 441
To excuse default below on appeal to County Court ...............0.0 0 441
To support motion to strike a cause from General Term calendar..... 824, 325
To accompany case on submission of controversy........ ricieaiteh tee Sates 346
To accompany note of issue in the Fourth Department...... ........... 318
On motion to compel entry of judgment......... cee cece ee eee ee ee eee 43
On motion to compel entry of order... .... cee ee cece ee eee cece eee eee 44
Of facts entitling a person, not a party, to appeal................... 006 384
Of sureties, as to property qualifications. .......... cee cece ee ee eens 95
To obtain order dismissing appeal to Court of Appeals for failure to serve

COSC aie ists ee bes F2G as ow Aw Sawa AM AAISE RENEE ENRERbES Base eee es 267
To obtain order dismissing appeal to Court of Appeals, for failure to file
TORN Mjsmsecs dw e4 Che 6bs Cee O SO EEORee UeEshee Mad LET eRtes 266

To obtain order restoring dismissed appeal.......... ccc cece ee eee teens 263

AFFIRMANCE :

Power of an appellate court to affirm wholly or in part.189, 350, 400, 412, 450
Judgment of, must not expressly award the relief in judgment below.189, 350

Judgment absolute on affirmance by Court of Appeals..............068. 295
Final judgment by General Term on affirmance........ .ssseeeeeeevees 352
When the General Term may affirm in part.............. heriendemtde Hees 350
By General Term as to some of the parties.........cseesceeesecessees .» 351
586 InpEx.

AFFIRMANCE—(Continued): Page
Staying remittitur on affirmance by default in Court of Appeals......... 272
By default, on appeal to General Term. ...........-c-e cece eee eeeecees 330
Judgment by County Court on affirmance... ......... cece eee e eee eres 453

ALBANY, CITY COURT OF:
Name of Justice’s Court of City of Albany changed to City Court of

AMMAN Ys sasaie ss sea aveseveracbeayss sae ge see Sav ea wenger ee eons 416
Appeals from judgments of, taken to County Court.............ee00- 31, 415
Proceedings to compel return by, regulated by local rules..............- 434
Rules of Albany County Court as to amendment of pleadings on appeal.. 487
Rules of Albany County Court as to presenting errors in fact...........- 0
Rules of Albany County Court as to points for the court..............+. 442
Hearing of the appeal at law term only......... see ee ee see e ee eeeeeeee 445
Costs on appeal from judgment of.......... 6. cee ec cece erence ene eeneees 472

(See County CouRT.)
ALIMONY :

When order granting or refusing, reviewable by Court of Appeals....... 230
ALLOWANCE:
Of sureties on justification. ........ 6. cece cence cece teen cen e teen eeeee 103
EN Gti GEOL cechacssiare teaseie vein saad oiacaudeasiavaue'oue avaxetantuaybiace te nies deesG nciaetosanes “aualeiaaseGane 103
Of appeal to the Court of Appeals....... cc cece eee cece eee eee te eeees 241
AMENDMENT :
Not permitted, if it will extend time in which to appeal.............. 59, 117
Of proceedings to take an appeal, or to stay execution............... 74, 116
Of notice:of appeal)... ccs ccnette cee sani che we Bead e lec Meee ee 59, 117
OF Undertaking. iicisis sods eisigscree hoes g bay ea ee glalelg eu bee ale ee wee CeeNCeE 118
Proceedings to obtain amendment....... 0.6... cece eee eee e eee ee eens 119
Proposed amendments to @ CASC...... cece cece cece ewer ete e ee es 148
Of process, pleadings and proceedings generally.................... 164, 165
OE POTUT I sa iacsiessints (eeace aus 4 areiats Wite 8 a 1o eid Oa Le cdee eeang 4 SiS eres IRE 165, 170
Of pleadings on appeal....... Je sie ee ere ay is Celene e See hors Oehd 166-170, 437
Of ordersion- appeal oss s sk sae es sees curse need anh eens sed oray en. ves 170
Of case Oniappetlhanisiss aieieciis waeeeatiewenaieye atanddwuieidiiey seagis.s 171
Of remittitur of the Court of Appeals.......... ce cce esse eee eee eee e ees 297
APPEAL :
Nature of the remedy by appeal..... 6... cece e eee e ee eee eee tena eens 1
When the proper remedy is by appeal.......... 0 eee e ccc e eee cence 3
When the remedy is by motion instead of by appeal.................005 6
Not generally authorized to review defaults.............. 0.0.0.0. eee 9
May be taken from void judgments or orders............ 00. see c scenes il
Waiver of the right to appeal... .... 0... c ce cece cece eee eee cece e ee 18
By stipulation or agreement ......... 0... cee cece eee 18
By acts inconsistent with the right... 0.6.6... 0. eee eee 18
Appellate courts or terms... 1.6.6... cece ee ee eee eee eee eee 23-31
Parties to appeals. ..... cece cece cece cece ce ee ete e neon ener es “ibisiere gti 31
By whom an appeal may be taken.......-.. eck cece eee eee eee tees 31
Who should be made parties respondent...... ccc. cece sce e vee eeee 89

Bringing in, or substituting parties on appeal..............0008 eens
APPEAL—(Continued): Page
Title of the cause on appeal.............. Sibiu disieis iaubiorsidiele ewrelw edia'e eaale 38
Preliminaries tocanappenl sess sacs ciea.siacess ceuiewisa sileioee ele ve'ss aa de a HN 43

Compelling the entry of judgment..... cc... cece eee cece eee eee nes 43
Compelling the entry of the order....... 0... ccc ee cee cee ee eeee 44
Motion for @ new trial axo.scw.es sawatas ecwa seed sada soe tees Hees 45
Procuring certificate or order allowing the appeal.................. 241

Taking and perfecting theappeal... 1.0... cc cece eee cece eee eee eee 47
When the appeal should be from the judgment only... ............ 47
When the appeal should be from the order only................660- 48
‘When the appeal should be from both judgment and order.......... 49
When the appeal should be from both final and interlocutory judg-

TAG Mites sx 3% iaieicehdavaha wise salt Barada ays sie eine a doaelaelabeinig ns cial aeraens 50

Mode of appealing from determinations in special proceedings........... 51
Insmandamuss <6: sek caros caw vend cares tas tos eae saese ce caes sense 51
APDUPAtON so 4.00 a aaiecae wos Raids eee e Fa HES ETT 6 ROSS Re ees 52
GOBLIOTATL 5 )h5 5.0 cao capstan Sraceardudieicomnciaern’s ase sees weenie hbe alge A se. 52
Proceedings against animals straying...............- ioe SAAD TORN 52
SUMMA POCO OMIM GS 5. icon eine cee dale owen s oaene de waeneee soem 52
In proceedings under the General Assignment Act..............000. 53

Time within which to appeal..... 2.0.6... cece cee eee ence eee nees 53
ToiCourtof Appealsiai s ois oweiaeaise eis ees satepistolsmriaeuese-gs's ew ace ere Gistanone 53
To General Term of same COUTE.. 0... 6c cece eee ec eee cee ence eens 54
To Supreme Court from inferior court. .... 0.0.0.2 cece ee eee ee eens 54
To Supreme Court from Surrogate’s Court........ (cess cece eee eee 54
To Superior City Court from inferior court.............. 0c cee ee eee 55
To County Court from inferior Court...... 0... cece eee eee eee e eee 55
Tn special proceedings ii. casey ee es 28's ce ese 846 04 ba yeide matron eertS 55

Limiting time within which to appeal......... 6. cece cece ee cee eee eee 56

Time cannot be extended... 0... c cece ee cnns ence ce seamen ecceeeenae ones 59

Waiver of the statutory limit as to time to appeal...................00- 60

Computation of time allowed for an appeal......... cee eee e seen eer e eee 61

PremiaturevappeallSicicysie'e eile gic wicle te practias partes euinas caneaecdak ge yee eee: 61

Notice of -appedhnasnevickale'ss's tose be seo seiewier etapa iw ug caneds ceeds 62-67

(See Notick oF APPEAL.)

Security to perfect the appeal...............00 cece eee e ce er ee ceeeees 68
When security required.a..acievocs ses scck ani eses san sass vaevenaes 68
When security not required . <3 i2% wisveadoscueans atid nied rack ceees 69
Appeal not perfected until security is given.............. ee ee ee eee 71
Requisites of the undertaking. ....... 6... eee eee eet e tent eee nees 1

(See UNDERTAKING.)
Staying execution on appeal....... 2... cece ccc eee eee twee ence eeeeene 5
(See Stay or Execution.)

General provisions as to security on appeal.......... eee eee ee eee eens 89
Waiver of security..........0. cece eee La /eew see teleawdlerese « 89
Deposit in lieu of undertaking. ......... 0... cee e cee eee ween 89

(See Deposit.)
Dispensing with or limiting security... ...... 0... cece sec e eee e ee nees . 91
Requisites as to form and execution of undertakings..............+- 93

(See UNDERTAKINGS ; SURETIES.)
Effect of a perfected appeal and stay of proceedings.............000- «.. 104
588 InpEx.

APPEAL—(Continued):
Discharging levy upon personal property .......seeceeeeeeerecereceees 106

Suspending lien of the judgment appealed from..........+..26.- pee eeee 107
Curing defects in proccedings to take the appeal or to stay execution.... 116
Mode of presenting questions of fact for review............- a aeueigia ws RS 120
After trial of all the issues by a jury..........e cess ee eee aad yerarde 120
After the trial of specific questions of fact by a jury........... sees 120
Upon challenge to a juror..... ccc. ccc cc eee e eee eaeeceeeeenenees 122
After jury trial of issue of fact in a special proceeding.............. 122
After a trial before a surrogate...........0.. eee ee se aiavecoistel actgrns 128
After a trial before a justice of the peace... 2.6... cece eee eee eee. 123
Mode of presenting questions of law for review..... fis Crea ARES 124
(See ExcErrion.)

Papers upon which the appeal will be heard.............cceee cee eeenes 129
Upon appeal to the Court of Appeals. ...... cece eee e eee een ee ee 129
Upon appeal to the Supreme Court from an inferior court..... secwew 18L
Upon appeal to the General Term of the same court..............-- 132
Upon appeal to the Common Plea8........... cece cece cece eee e eee 183
Upon appeal to the County Court........ co.cc ce cece eee eee 134

Transmission of papers to the appellate court............ cece eeeee eens 185

When questions for review must be presented by a case...... . Sei ceoeeare te 137

(See CasE.)

Filing case or exceptions... 0.0... ccc cece eect e cence teen n eee ten enna 152

Points........... Gibiasia-scemed pid b. sokg pe Pancha tein. weiels RUINS, bende Ranetacdee .ee. 158

Printing the appeal-book and serving and filing printed copies........... 155

Preferred CAWSeS seco e soe aan see Ree aa LB cae eRe aw eens eS 156

Proceedings to obtain preference of a cause on the calendar............. 159

Introduction of evidence upon appeal. ...... eee cee teen eee 161

Amendments on appeals x. os iwiscsa ede $Aa Rise tweed etawe ved eee eiaad t< 164
General provisions of the Code.......... eee cece cece e eee eee tees 164
Amendment of pleadingS.... 1... ... cece cece cece eee erences 166
Amendment of orders........ ...0 GS VisiGte! Gates ee aoeseameneh oes Le SESS 70
Amendment of the case. ...... cece cece eee ce eee ee ee eee ees 171

General principles governing the decision of appeals. .................4. 173
Presumption in favor of the judgment or order appealed from....... 173
Presumptions in support of findings. .......... 0... cece cece eee ene 174
Appellant must SHOW CIYOT. .... 6. eee eee eee eee eee eens 173
Error in receiving or rejecting evidence, when a ground for

POVCUSAL. 2.4 aanconguaeiiewei ee ee tee waar ro een eet rie 175-180
Review of determinations as to the weight of evidence.............. 180
Review of errors in charging or refusing to charge the jury.......181-184
Errors in taking or refusing to take the case from the jury.......... 185
When objections not taken upon the trial will be considered........ 188

Judgment or order on appeal... ... eee cece e ee cee eee eee eee ee ees 189
General power of appellate courts in respect to jadgment........... 189
By what court entered and enforced..........cee cece cece eee eee 190

(See JUDGMENT.)
Restitution........ gute Aileixc ores cowtare paatoeedalenaawele baw seis gunvanernivtes 191-195
(See RESTITUTION.)
Appeal to the Court of Appeals...... seus pa sea views se aeees'e as «196-800

(See Court or APPEALS.)
INDEX. 589

APPEAL—(Continued): Page
Appeal to General Term of same Court......... cece ee cee cent eeeee ees 301-360
(See GENERAL TERM.)
Appeal to Supreme Court from inferior court............ ces eee eee 361-380
(See SuPREME CouRT.)
Appeal to Supreme Court from a Surrogate’s Court...........0..000 381-401
(See SuRROGATE’s CouRT.)
Appeal to Common Pleas from City Court of New York............. 402-413
(See Common PLEAs.)
Appeal to the County Court... 0... eee eee eens 414-454
(See County Court.)
Appeal to the Common Pleas from a District Court.................. 455-461
(See Common PLEAs.)
Appeals from the City Court of Yonkers.............ccceceeeseeeees 462-467
(See Yonkers, Crry Court oF.)
Costs on, appeal. isaac occa siconnsanasusowadian oeds eee eae O24 naledinens 468-497
(See Costs.)
APPROVAL :
Of undertakings given on appeal......... ccc ee ce ewes econ een ee enes 96-424
ARBITRATION:
Appeal from judgment or order in, how taken..............cceecee eens 52
Time in which to appeal... ..... cee cece cc ccc cece nce n ence ennenees 56
Case not required on appeal from order confirming report............... 189
ARGUMENT :
Of the appeal in the Court of Appeals... 2.0.0... . ccc eee ee ee eee eee 271
Atithe General Termy.é vncsavedecevcecs 644 ¢adrines eure 331, 876, 397
Inthe Common Pleasiss< vase oxsevcesschescstes tease sats 410, 411, 460
In‘the County Courtsacincccsea ccm sscitaeneevadas te vees seeded 445, 446
Notice of argument on appeal to the Court of Appeals........ ...... 259, 270
On appeal to the General Term. ......... 00.0.0 eee cece cece ee eeee 319
On appeal to Supreme Court from inferior court sgch Stahatevaue ots) mie Bolter 375
On appeal to Supreme Court from Surrogate’s Court................ 396
On appeal to Common Pleas from inferior court................ 409, 459
On appeal to the County Court......... 20. cece cece ee cece eee eeee 438
Costs allowed £02 isi ce :scevescaui'e biewars s0s.4 oa e's cpnnteale’s meewrwine sinece 6 485, 486
ARREST, ORDER OF :
Preference of the cause where defendant is imprisoned under ........... 158
Review by County Court of order of arrest issued by a justice........... 448
Review by General Term of order refusing to vacate..............00000- 307
Review by Court of Appeals of orders of arrest, Cte... 6... eee eevee 228, 284
ASSIGNEE :
Of interest in the estate, may appeal from decree of surrogate........... 36

Preference of appeals to which assignee for benefit of creditors is a party. 157

ATTACHMENT :

Review by the Court of Appeals, of orders granting, denying, or vacat-
IND es cor darasaloiteinas Maiiaueie oy Ge Suan aie eee anaes 219, 227, 228
590 Inpex.

ATTACHMENT—(Continued): Page
Review by the General Term of order refusing to vacate...... sisi Moses 307
Review by County Court of attachments issued by a justice.... ........ 448
May issue to compel return by inferior court..........2..2000ee 434, 409, 457
Cause preferred where property of the defendant is attached............ 158

ATTORNEY :

Review by Court of Appeals of order denying admission.............-.+ 227
Of orders punishing attorney for misconduct............00eeeeeeees 281

AUBURN, CITY COURT OF:
Appeals from judgments of, taken to County Court of Cayuga county.... 415
Appeal governed by general provisions as to appeals to County Courts... 415
Costs on appeal from judgment Of............ cece cere cece enone een eeee - 472
(See County Court.)

BANKRUPT :
When he has sufficient interest to maintain appeal.........-...seeseeee- 33
Introduction of evidence of discharge on appeal..... ....... sista’ evi wise 162
BILL OF PARTICULARS :
Order granting or denying not reviewable by Court of Appeals.......... 227
BOARD OF CLAIMS :
When award of, may be reviewed by Court of Appeals................ 5, 207
Time within which appeal must be taken.............ccceeeeseeecenens 53
Notice of appeal from award Of. ..... 0.0... cece eee cence ence eee eneeeee 68, 245
Service of the notice of appeal...... 0... ce eee cece e eee e eee eeeee -66, 248
Case on appeal from...... 2... cece ec cece cece ence ee ee teeeeeeeeeeens 180, 248
Security to perfect the appeal not required. ............. eee cece ee eee 249
Security to stay execution not required............ 6.6. cee eee cece eee 251
BROOKLYN, CITY COURT OF :
Judges, officers and attendants of the court. ...... 0... ccc cence eee eee e ee 28
Appointment of General Terms ......... 00.0.0 e ccc ccc eee eee wean eees 28
General Term must be held by at least two judges... 00... ......0c cease 28
Concurrence necessary to a decision......... 0. eee eee eee ee een eee 28
Appellate jurisdiction ......... cece cece eee cece teen t eee ee nee 28, 29
Appeal to the General Term from determination of same court....... 301-360
(See GENERAL TERM.)
BUFFALO :
Organization and jurisdiction of Superior Court of................085 28, 29
(See SUPERIOR Court OF BUFFALO.)
Municipal court of Buffalo, review of judgments of...............00 29, 414
(See MunicrpaL Court oF BUFFALO.
CALENDAR:
Order in which preferred causes will be placed on the calendar..... .... 156
Putting cause on the calendar of the Court of Appeals...............00, 259
Of causes heard as MOLIONS........ cc ce eee cece eee ceca eee eesenns 260
Of preferred causes... ic. ovevee cee tees cus vue cea serves eeeres. 159, 260

Reserving or setting down causes for a day certain in Court of Appeals... 260
Day calendar of the Court of Appeals. ........ cc cce eee ce nee eeeeee rene 261
InpeEx. 591

CALENDAR—(Continued): Page
Exchange of causes on Court of Appeals calendar.......-...seeeeeeeeee 261
Striking cause from calendar of Court of Appeals...........0.ecee eee 262
Call of the calendar of the Court of Appeals ...... 0... cece eee cence eee 271
General Term calendar... 2.0.20 ccc eee eee ee ence eee renee schanuacaucints 522

HOWAMAUG UPd. 2, Ww codigos on G08SS0 see Roh Dadietieamue ys 822
Putting cause ou the calendar... ... cece eee eee eee 3817, 319, 322, 374
Correcting the Culewd any, os cccicsisce sisi aen aie eiaeie cae eee s meeete: een tee 824
Striking cuuse from the calendar ....... 0... c ee eee eee 324, 375
Day culendersy os v2 see. acta steed Paetedenneaet kes wae alas 326
Reserved cuss canesccdevaden eed siedeles ees eea6 <u 4e4 bales Ors ore 827
Practice on cail of the caiendar...... Je oa Fee MENS CeNES MRS a TS OG ORD 328

Of the Court of Common Pleas ...... ccc ccc ccc cece cece ee eeeee 409, 411
Putting the cause on the calendar....... 0... eee eee eee 409, 458, 460
Motion to correct the calendar or to strike cause from the calendar... 411
Call of the calendar... .. 0... cee cece ee cece eee teeeeeeveee 410, 460

Putting cause on the calendar of the County Court..............6 2.80 438

CASE:

When a case is necessary to present questions for review.............-66 137
On appeal trom a judgment rendered after trial of an issue of fact..187, 138
Where party moves for a new trial uf au issue of fact....0 2.2.22... 137
On appeal from decree rendered after trial of issue of fact by a surro-

PACH isds54 wh see Adoes aes eareON ONS a aides ad: 1387, 394

On appeal from a final order made upon an alternative mandamus... 137
On appeal from an order made on a motion for a new trial on the

MOIMU LES) .c- sew Sohin § guerain Suengngios Gea gig oud o.8.0 8 Oca 1a eae ge Seely 138
On appeal from an award of the Board of Claims.................. 248
-On motion at General Term for a new trial................ 2. cece 514
On motion at Special Term for a new trial............. 000.0000 eee 524

On motion for a new trial on the ground of newly discovered evi-
EMCO ia: ssci so ae grdais ateiararerap nnsra ae oreionrroeee Grea ea a'e4 524, 547

On appeal to Court of Appeals from judgment on verdict subject to
opinion of the COULtowiccsedeseececseds sce scsudiemacesaradn 138
When no case 18 NCOSSAaLY inscccme cies oes e655 60s see DEE Me ood eee 138

To review exceptions to rulings made after submission of cause tu
COUTEOF TELETUC 4 dig:s. ctw sea Se Seo oEEA Geese ated ees aredamwe 138

To review a decree of a surrogate not made upon a trial of an issue
OEPACE asuneteue ta gatectereee a Sra eas Bate GOs ibvinaonanineeee naeae eats 138, 894
On appeal from an order confirming award of arbitrators........... 139
On appeal to County Court from judgment rendered by a justice.... 139
On motion on the minutes for a new trial......... cee cece eee ee eee 501
On a motion at Special Term for new trial for irregularity or surprise. 523
Time within which a case must be made and served...................- 139
Extension of time to make 4 Case. ........ cc cece ee cece ee eet eee ee eens 140
Requisites of a case or bill of exceptions............ 0.06 eee ese eee 141, 373
Statement of the evidence in the case..... 2... cece eee eee ee eee 142

Substitution of a stenographer’s minutes for a case disapproved...... 142
Modes of enforcing the rules of court as to preparation of the case...

142, 143, 493
No unnecessary evidence should be inserted...... ... smring ees 142, 148
Inpex.

CASE—(Continued): Page
When all the evidence must be inserted.......0.00---+eeeeee ee 148, 144
Statement in the case that it contains all the evidence.........,.148, 144
Questions for review where the case contains no part of the evidence. 145
Statement of rulings claimed to be erroneous...... .. --eeeeeeeeeee 145
When matters pertaining to challenge to juror are material.......... 345
Reasons for rulings should not be inserted. .........6 cece eee rene 145
Insertion of the charge of the court........... 2. cece eee ee eee eens 146
Insertion of exceptions taken by respondent..........05 cece ee eee 146
Lines of case and copies should be similarly numbered.......-.----+ 146
Service of copy of proposed case. ........ 0... eee ee Si pahokv ine anes 146, 315

Requisites of the case on appeal to the Court of Appeals............ 146, 256
On appeal from an award of the Board of Claims.............0.0-+ 248
On appeal from judgment on verdict subject to opinion....... er 146
When a new case should be made for the Court of Appeals.......... 147
Printing and serving case on appeal to Court of Appeals........ 148, 257
Serving amendments to the case.... 1... cee eee eee eee e teens 148
Notice of settlement of the case... .......cc0ccceeeeeeeceeeeeeeeeseeens 149
Settlement of the case. ........ cece eee cee eee eee e tere c scene 149, 315, 394
By whom the case must be settled. ....... 0... cece eee ee eee 149
When referee disqualified to settle the case...........0. eee eee eee 150
Proceedings on the settlement. ...... 0.0... eee e cece ee ene tenes 150
Making additional findings. ........ 0... cece ccc ee cen eee eee renee 151
Requests for additional findings on settlement of case by surrogate.. 394
Case must be signed and ordered filed. ......... 0... cece eee eens 151
Making and serving copies of the caso as settled............. 151, 152-315
Filing caseor exceptionss.sssscecesacsseenes teens Soosneemeses aeons 152
Annexing case to the judgment-roll..........cee eee oe Se ers l seus 152, 153
PHINtiNG CASEs.25 voce ds fo5esb sees seb ee Seccee ela We eee sa pag tease 155, 315
Amendment of the case on appeal......... cece eee e eee tent e eect ee eee 1
Cannot be supplemented by affidavit or clerk’s minutes................- 373
Costs of printing a necessary disbursement...... Semdugine sa eeesraas sas 492
Costs allowed for making and serving a case................. vee 046, 547
Costs allowed for making and serving amendments to case....... Rial eis 546
CERTIORARI :
To review assessment, review of orders or judgment in.............. ae. 52
Preference of appeal from order in.............. ane Shed to sieetolefeeRelere eijewite 156
Wrttok, when issted)... s:.2 se. c0 cs wind raticane dbioedi tes oeiteue aieaaiirns 18, 14
Nature of the remedy at common law........... fp sebig tive whan sais weie satseeey “AD
What determinations reviewed by.......c. cece wees c cece cece saneadd3, 16
Questions determined on the hearing. ........... cee ee eee cece eee ees 16, 17
When a review is prohibited by statute..................005 ee beeeed - 17
Order quashing, not reviewed by Court of Appeals...............0..008 228
CHARGE:
Duty of the court to charge the jury...............eeee eee Siiseu Hee sine LOL
Refusal to hear requests to charge an error calling for reversal........... 181
When refusal to charge the jury upon a material point is fatal........... 182
When an erroneous charge calls for a reversal....... Sipreherevarcue sd -..182, 183

Insufficient requests to charge ...........005 Ses ord Najdiee Bova tun Hevea es 183
Inpex. 593

CHARGE—(Continued) : Page
Insufficient exceptions to the charge or refusal to charge...... eciesah eine 183
Error in charge a ground for new trial. .......... 00sec eee nsec eeees 508, 543
Verdict contrary to charge will be set aside on motion ................ » 505

CITY COURT OF ALBANY. (See AuBany, Crry Court oF.)

CITY COURT OF AUBURN. (See Ausurn, Crry Court oF.)
CITY COURT OF BROOKLYN. (See Brooxtyn, Crry Court or.)
CITY COURT OF NEW YORK. (See New Yorks, City Court or.)
CITY COURT OF UTICA. (See Umi@®, Crry Court or.)

CITY COURT OF YONKERS. (See Yonxers, Crry Court oF.)
CITY COURTS. (See Superior Crry Courts.)

COMMISSION :
When an order granting or denying, affects a substantial right.......... 217
Review of decision as to allowance of interrogatories............... 217, 220
COMMON PLEAS, COURT OF. (See Genera TERM.)
Organization of the General Term... 0.0.00... cece cece cece eee eee eee 28
General: Term Justices, iucsccccusensceece aac e cd cbies de sedeescneateg sae 28
Officers and attendants of the General Terms.................0e0ee eee 28
Time of holding the General Terms........ co... cece ee ee eee eee e eens 409
From what courts or terms an appeal lies to.............0045 28, 29, 402, 455

Review at General Term of judgments or orders of same court........801-360
(See GENERAL TERM.)

Appeal to Common Pleas from City Court of New York................ 402

Jurisdiction of the Common Pleas on appeal from the City Court.402-405

General statutory provisions. ........... 2. cece cess ee ences 402, 403

Jurisdiction derived wholly from statute.............0. 220 eee 403

On appeal from a judgment... 2. 1... eee eee cee cee eee 402, 4038

On appeal from an order granting a new trial.............. 402, 404

On appeal from orders generally..........0..eeeeeeeee 408, 404, 405

Taking and perfecting the appeal............ se eee cee ee eee eee eens 406

Time within which the appeal must be taken................ 55, 406

Service of notice of appeal... ...... 006 cece cee eee ee eee 64, 406
Stipulation for judgment absolute on appeal from order grant-

IDE ANEW tial vcnew cvs eserves 058.65 sahara ee ee. 64, 404

Specifying interlocutory judgment or intermediate order..... 63, 406

Security to perfect the appeal... 0... cee ee eee ee cece eee 68, 406

Supplying defects in proceedings to take the appeal........ 116, 407

Staying exccution of the judgment or order........... cee eee ee ences 407

(See Stay or ExEcurion.)

Procuring return from the court below .......... cece cece eee tee eee 408, 409

Requisites of the return.......-. 0c cece ce cece tees cece ene ances enon snes 408

Dismissal of appeal for failure to procure return. .......2 2.0. eee cece eee 409

Return may be compelled by attachment. ............0. cece ee cence eee eee 409

Service of notice of argument............. cece econ ee er 409

Filing note of issue...... ce. cece cece cece ere e eet ete eeseeteeenaee 409

Printing and serving papers on which the appeal is to be heard.......... 410
594 Inpex.

COMMON PLE..8, COURT OF—(Continued): Page
Obtaining a stay of proceedings to move for resettlement of the case .... 172
Proceedings on the argument............c0 cece sees eer cree eeeeeece 410, 411
Order of the calendar......... 6... ce cece eee cree coerce ener ence enene 411
Default on the hearing................eeeeees (pea Gee aww aetaG os ebenh ease 411
Appeal determined on same principles as an appeal to Court of Appeals.

125, 411
Exception necessary to present a question of law for review......+..+++ 126
Questions resting in discretion not reviewed.........+eeseeeeeeeeeee eens 412
How far questions of fact will be examined. ..........ees sees seereeeee 412
Judgmect absolute on affirmance of order granting new trial....... setea, TZ
Power of the Common Pleas to reverse, affirm, or modify.........+...- 412
Enforcement of the judgment by the court below..........+eseeeeee 181, 413
Costs on appeal from the City Court of New York.............-000+- 468-497
(See Costs.)
Appeal to the Common Pleas from a District Court..... ....ceee eens 455-462
When an appeal is authorized by the Code............eeeceeeeereee 455
No new trial in the appellate court on appeal from District Court... 455
Judgment for plaintiff by default may be reviewed.......... : sabes 455
Orders reviewable on appeal from the judgment below...........+.. 455
Orders in summary procecdings reviewable.........eeeseeeeeee 455, 456
Mode of taking and perfecting the appeal...... .....ccseeeeeeeeees 456
Service of the notice of appeal.......... 2. ccc eee eee ee ee eee 42, 456
Time within which the appeal must be taken............ 55, 419, 456
Curing defects 1n proceedings to take the appeal................ 456
Payment of costs in judgment and fee for return............... 456
Security not required to perfect the appeal...............0..065 456
StAVING EXCCULNOM airiawasiar anaaicde cieaineninalesaiimseioanes Siear 456
Return on appeal from a District Court.......... 6... 62. cece eee 457
Time within which the return must be made..................- 457
Contents of the return... 2... 6.6... cece cece eee eee ete eeees 457
Dismissal of appeal for failure to procure return................ 457
Compelling return by attachment. ........ 0... eee e eee eee ee ene 457
Proceedings where no return can be procured.............. 457, 458
Stipulation fot reversal. sco. giecennswy see seesssesaceedesewae shes 459
Serving notice of argument and filing note of issue............. 459, 460
POMtS yrs Seater cece does ue ceev en's oes tele a8 Cosel palan Ou atents 460
Aroument-of thé ippeal icc. sc. seen siawatdis da tddde wastes 460
Judgment:ou appeal ie.csiiesascinew aw aenwuraieiecs o owes s ox ee e's oe paae' talc 461
Costs on appeal from District Courts.......... 0 cece cece eee ence eee 489
Disbursements on the appeal... ... 0... ccc cee ce eee cee e eee eeee 492

CONTEMPT :

Review of orders in proceedings as for contempt.............00 218, 220, 229

COSTS :

When prevailing party entitled to costs as of course...........00.005 467, 468
To respondent on affirmance,....... 0... ccc cece cece ec eeenees 469, 470
To appellant on reversal... 6... eee cece cece ce ce eneee 469, 470, 472
Where an offer of judgment has been made. ............... 000 470-472
Where a person not a party has been allowed to come in............ 472

On ChOsS AP Peal Swciiemeicing ele ssecewardcrosiiad’ ve dreea worn wiaiaistes vareus ved 478
Inprx. 595

COSTS—(Continued):

Page
When neither party entitled to costs of appeal........e. ec ee cece ee eee ene 473
When costs are in the discretion of the court........... 0. ee cess eee eeee 474
When new trial is ordered in action within § 3228 of the Code....... 474
In actions not within § 3228 of the Codc............. cece cece eens 474.
Upon appeal from interlocutory judgment or order................- 474
In special proceedings .........0..ccceceee ec eee cece eens eeen eases 475
On appeal from Surrogate’s decree ..........2 ce cceceececeeseceeens 475
On reversal by County Court for error in fact............eeeeeeeeee 475
On affirmance in part..........cce cece cece cece teen e eee eereeeeeees 475
Discretionary costs must be expressly awarded............000e0e00+ 476
Mode of exercising discretionary power as to award of costs............. 476
On reversal for technical errors, costs given to abide event........... 476
Where neither party wholly successful, costs‘are not given.......... 476
Orders usually affirmed or reversed with costs...............0e eee ee 477
Not generally given on decision of new questions .................. 477
Directions as to payment....... ccc cece cece e eee eee eee 477
Ultimate right to costs after successive appeals............-....2 eee ee 4T7-A482
Right to tax costs of all prior appeals...............5....4- 478, 479, 480
When costs limited to those in the appellate court ..............-... 479
Where costs have been given to abide the event...................05 481
Separate bills Of COSts. 0.0.0.0. cece eee etcetera teen eee eteseneeces 483, 484
Sums allowed as Costs: < . osvccuae seaccnavewe sewer ce decueey meuewanes 485-488
Upon appeal to the Court of Appeals... ..... 0c cece cece ee eee teens 485
Upon appeal to the General Term............ccee cece ccc eee ee eens 486
Upon appeal to Common Pleas from City Court.................66. 487
Upon appeal from orders in special proceedings.................00- 487
Where appeal from County Court has been certified to Supreme Court. 487
Upon appeal to the County Court. ........ 0... cee cece ce eee eee 488
Upon appeal from City Court of Yonkers................ 00. cece eee 467
Upon appeal to Common Pleas from a District Court.............. 489
Double or increased costs 1.2.0... cece cece ee eee cence tae eee 489-491
DISbDUISCMen tS je guts sos cies vices a G's sal o'ae Maleate MewebaGseginee e5ee842 6 491
Upon appeals generally sos. eswsievs.ys cas csemnsevsee ae sneeiye esse 491
Upon appeal to the County Court....... dduyeseleee tee y aera ve eet 491
Upon appeal to the Common Pleas..........-.. 0. cece eee eee ee eee 492
FOr: printings: s5.20526 aay sostieesnes Gees vase eee eee ad oad veneer saus 492
Clerks” £08... ecceiaede ta cried en Peed ees MEAS iouales hese igiateaesea yates es 493
Taxation of costs.............. Shae nahaae af ac eiecmemavace tea miedee ne wats 404
By WHOM taxed oi 0s5 3 dtie Casassuaceaiguareaiew valeneyes Ae area Sa ddw sae 494
Notice of taxation or retaxation..... 0... ...0- cece cee ee ee eee 494
Proceedings on taxation........ .. ...... ieueawUde MWe CEE oe ee aa ee 495
Review of taxation... cccc ca: ccaeeaciewisiase see ous vie tigi s Sees wile aoe pei 496
Review by Court of Appeals of questions as to costs. ..218, 219, 225, 226, 240
Acceptance of costs as a waiver of right to appeal...........eee eee eee ee 20
Discontinuance without Costs........0 - cece eee eee eee eect eee eee eee 225
Oo motion for new trial on the minutes. ......... 0... cece ee eee eee eee 508
On motion for new trial at General Term............. 0. cece eee ence eens 518

On motion for new trial at Special Term..............ceeeeeeee eee 546, 547
596 Inpex.

COUNTY COURT: Page
Terms of......... ustgacnelememdas Nits Ada Da dowadlee wanes ent omens’, 80
Provisions as to proceedings at general, special ¢ or trial terms applied to.. 31
Appellate jurisdiction Of......... 0... cece ec cn ee eee eee ee eeeee (abe ew eae ® 31

Judgments rendered by justices of the peace.......+.++++++ savese te 414
Judgments of City Court of Auburn........... stars Aveiels Laverne e 415
Judgments of Municipal Court of Rochester...........-+ iv d.avaiaracseuays 415
Judgments of City Court of Albany. ........ eee ee ene e cree ee re eeee 415
Judgments of Justices Court of Troy.......ccceeeee cree eee eeeenere 415
Judgments of City Court of Yonkers.... ......+- pena sense 416, 462
Judgments of City Court of Utica........... seGcs ajaiele Sajecsloneaveles syste 417
Orders of City Court of Yonkers............ igen eleieeiceeserdes 416, 462
Orders in summary proccedings............0eeee eee e eee e cece 417, 462
Orders in proceedings against animals straying....... wueugisimeuite ss 417
Review of attachments, orders of arrest, or requisition to replevy.... 448
Parties to an appeal to the County Court......... cc cece eee eee oe 417, 418
Time within which an appeal must be taken.......... Seitanamsalees ...55, 419
Notice of appeal to the County Court. ......... 0 cc cece eee cece teens ... 420
Requisites of the notice................ Oe Ra RER wee ee Se Te hs ee as 420
Amendment of the notice... 20... eee eee eee cece eeeees 119, 420, 421
Service of the notice....... 0... cece cece cere nce e eee eran as ceercees 421
Costs of court below and fee for return must be paid................- 73, 422
Staying execution on appeal from judgment...........eeeee eee ee eee 423, 465
Form and contents of the undertaking ...... daieieatathessg We ea Se 4 423
Approval of the undertuking........... ccc cee cece eee eee eee neces 424
Filing undertaking aud serving copy with notice................ 424, 425
Exception to sureties by respondent............ 0. cece cece eee eens 429
Notice of justification of suretics....... 0... ec e ec cee eee eee eee ee ees 430
Justification. .........6. cece eee eas ia seueche A anicd spate elaueethcaasarash? 100, 480
Service of notice of allowance of sureties................. 2. eee eee 430
Procuring allowance by perjury. .... 0... cece cece ee eee erences 430
Amendment of undertuking............ 0.0... cece eee eee eee 116, 118, 119
Amendment of proceedings to effect a stay..............0. 116, 119, 429
Return to the County Court upon appeal. ... 0... cece cece eee ee eee 433
‘Time within which return must be filed............. 0.0... 433
Contents of the Tetunal. <j. ce.tis wees tee a Se sa tines we dees wees wie eerie 433
Compelling return, or a further or amended return................-. 433, 484
Substitute for return when none can be obtained............. 0.0.0 ee eee 434
Conclusiveness of the return... 6... cc ce cee ene teen neeee 435
New trial in the County Court on appeal, when a matter of right........ 423
Must be demanded in the notice of appeal...... 2... eee ee eee 421
Demand for new trial cannot be inserted by amendment............ 421
New trial not authorized on appeal from order insummary proceedings. 428
An unauthorized pleading gives no right to new trial........... 0.06. 428
Remedy of respondent where new trial is improperly demanded..... 486
Sccurity required to periect appeal for a new trial... 6... ee QU
Requisites of the undertaking to perfect the appeal.......... 72, 423, 426
Approval of the undertaking. ... 6.6... cece eee eee eee ee 24
Service and filing of the undertuking............. ee eee 425
Exception to sureties in the undertaking. .............. aan aw 420

Notice of justification of the sureties...... sna nein ees neti seeees 430
InpEx. 597

COUNTY COURT—(Continued): Page
Justification of the sureties. ........ 0. ccc ccc ee ece eee e eter ee eees 100, 480
Allowance of the sureties and notice of allowance................4. 430
Return on appeal for a new trial........ eee eee eee 433
Offer of judgment by either party to the appeal................ 430, 431
Proceedings where an offer of judgment is made and accepted. ..430, 431
Effect of a failure to accept the offer.................. 430, 4381, 470, 471
Action deemed at issue ten days after filing of return....... ... 431, 487
Amendment of pleadings on appeal for a new trial......... 165, 169, 437
Filing notice of issue and serving notice of trial................000- 438
New trial in the County Court.......... 00... cece ee ee eee ee 443, 444
Questions of law that may be reviewed on the appeal............... 444
Transfer of appeal, if improperly taken, to law calendar............ 444
Reference of the issues. ........ 0. ccc cece ect e eee eee ee ee eee ee eees 444
Motion for new tria] on the minutes,.......... 0... cece eee ee eee eee 444
Exceptions cannot be ordered heard at General Term of Supreme Court. 444
Entry of judgment after new trial............. ce cece eee e eee ees 454
Right of the prevailing party to costs....... 66... eee ee cee eee eee 469-472
Amount of costs recoverable. ....... 6c. e cece cece eee e cece cent eens 438
Disbursements included in the bill of costs...............--0005 491, 492

Appeal to the County Court upon questions of law must be heard upon

Tie POO WA jak 4 eka ewe hore eects Fas eke e tls Shaw “bau 134, 442
Contents of the return. ..... 2c cece cece eee ee eee eee teens 134, 438
No security required to perfect the appeal...............0..0005 70, 423
Security on appeal from judgment of City Court of Yonkers........ 464
Staying execution of the judgment............... 0. cece eee ee ee eee 423
Exception to plaintiff’s sureties and justification of sureties..... 429, 430
Stipulations by respondent for reversal and proceedings thereon. .... 482
Filing note of issue and serving notice of argument............. 438, 439
Excusing default and showing that injustice has been done.......... 441
Preparing points for the hearing. .......... 60000 cee ee rece eeeeees 442
Hearing of the appeal upon questions of law.............-.-+-- 445, 446
Questions reviewed upon the hearing...........+...s. sees eee eee 447
Objections not taken below......... 66. eee cece e eee eee ee 447
Provisional remedies issued with the summons................. 448
Questions of fact, how far reviewed............--.-..-+0-- 448, 449
Facts assumed on the trial assumed on the hearing............. 449
Matters resting in discretion not reviewed..............-2. 064. 449
Orders granting or denying amendment of pleadings ........... 449
Principles governing the decision of the appeal..............-...44. 450
Decision must be according to the justice of the case........... 450
Technical errors or defects disregarded. ........-. cece eeeeeeeee 450
Court may reverse or affirm in whole or in part............ 450, 453
Tendency of the court to sustain the judgment................. 450
Judgment contrary to evidence or unsupported by evidence.448, 451
Errors in the admission or exclusion of evidence............ 451, 452
Excessive damages a ground of reversal........-..-.++-sseeeee 452
Failure to award nominal damages, how reviewed.......... 452, 453
Insufficient judgment, .......... 0... cece eee ee cette ee eee ees 453

When new trial will be directed before the same or another
JUSTICE. 0... cece eee eee eee ee tence eee eennes jaweees 441
598 InpeEx.

COUNTY COURT—(Continued): Page
Set-off of costs against recovery..........0eeeeee crete ec eneees 453
Entry of judgment............. Nc caus tite ovad ni g¥ dda noraneent asa sanacereveseeedauetieesy SS 453
AMAPMEMETOMN asin a pecae-cn para srcneia pce tre tid dine orseaielun diaenreias Sere SAC 454
Restitution upon reversal or modification. ......-..---+0e.- eee e eee 454
When the prevailing party is entitled to costs of course..........--- 470
When neither party is entitled to costs............cc cee ee eee ee eees 473
‘When the costs are in the discretion of the Court..........+00+eecee 475
Amount of costs recoverable... 2.0... cece cece ee ener eran eeeee 488
What disbursements may be included in the bill of costs........ 491, 492
Appeal to County Court from final order in summary procecdings....... 417
Appeal to be taken as from a judgment............ eee cece eee eens 417
No new trial in the County Court authorized. .............-020e eee 417
Time within which the appeal must be taken...............202 eee 419
No security required to perfect the appeal........... 00. ee ee eee eens 425
Stay of execution of warrant to dispossess, how obtained............ 426
Appellant entitled to costs of course on reversal..........-00005 472, 475
Appeal to County Court from orders in proceedings against estrays. .417, 426
Parties to the appeal ....ac00 cases cneexsc seat ewes sree sememeasenuesee 417
Mode of taking the appeal. ......... 2... cece cece eee ene ee 417, 418, 427
Time within which the appeal must be taken..................06.. 419
Order staying proceedings necessary to render appeal effectual...... 426
Security not required on appeal from order on claim to surplus. .70, 427.
Costs of appeal are discretionary........... 0. ccc cece eee ene eee ee 475
Appeal to County Court upon errors in fact... 0.0... 0... cece ee eee eens 439
Appeal may be determined upon affidavits or oral testimony........ 439
Service of affidavits establishing the error claimed.................- 440
Service of affidavits by respondent..............05 cence nese eeeee 440
What constitutes ‘terror in fact”... ... ce. cece eee eee teen eee 440
Proceedings. on the hearing... 0.6... ccc cece ce ree ete e cece eee neeee 446
Costs upon reversal discretionary .........0.c cece cece erect eee eens 475
GOstS APOE: AAA TITAN CC 5. elses bycscrs sactessassugcasatinerinddaidne acerileva epaninevnutererna aly 470
Costs upon affirmance in part... .......0. cece cee cee eee e eee eee 475
JAMOUNCIOMCOSLS. ciwns dewsinsesa’ cahGaawe anak naman wi wremcn Aveta 488
Appeal from judgments or orders of the County Court to the Supreme
SUE Eis opsheicrevchecoeah dnstdecwetaasiaions) os cacale yetib, wiiatoeee Gaier ishayeteteteunstatele 361, 381

(See SUPREME COURT.)

COURT OF APPEALS:

Organization: .c<s22ccewanresiawe aearenasa meses avrere seats boas 23
TéLins:.jscecaddee see we oteds eeeaeaslnne oR ae te seas ean ten aww 23
Jurisdiction Of the CoUrtiis + sis sews sows seve aeeenesscenenwed 23, 196, 207
Limited to jurisdiction given by statute. ....... 0... cee cece ee ences 198
Nature of jurisdiction conferred by the Code....... sss... eeeeeeeee 198
Can review only actual determinations...... 2. ....0. eeeeneeecees 198
Cannot consider any matter not presented to court below........... 199
Will not review judgment entered pro forma... 2... ccc cece eee eee 200
Will not review judgments or orders made upon default............ 201
Limitation of jurisdiction as to amount in controversy.........ee008 202
Mode of ascertaining amount in controversy........+e.06 siasepeienecsnaeay 202

Of actions or special procecdings affecting title to lands........... 206
Inpex. 599

COURT OF APPEALS—(Continued): Page
Of appeals from awards of the Board of Olaims............0.0005 5, 207
Constitutionality of limitations as to amount.............. eee eee 207
Limitation as to court in which action originated............-.0000- 208
Upon appeals from final judgments. ... . 0... cece eee ee nee eee eee 209
Must be an actual judgment entered. ......... cece eee eee eee 209
What judgments are final... 6... ce eee cee eee cence eens 210
Review of interlocutory judgments and intermediate orders....., 211

To review interlocutory judgments........ Devi sied sb GGG wetle nae 212
Mode of bringing interlocutory judgment up for review...... 212-214

On appeal from orders. ..... cece eee eee eee eee ete neces 214, 240
Order to be reviewed must be specified in notice of appeal...... 214
Power to review part of an order only..........-.... 0c eee eee 215
Orders affecting a substantial right......... 02.2.2... 2.20. 215, 219
Orders not affecting a substantial right.....................60 220
Orders resting in discretion not revicwable......... .......... 221
Review of determinations of questions of practice.......... 2238, 2.6
Review of refusal to exercise discretion for want of power...... 217
Orders determining the action and preventing judgment........ 2382
Orders granting or refusing new trial...............-..-04- 238, 235
Danger of appealing from orders granting new trial............ 246
Orders striking out a pleading or part of a pleading............. 235
Orders deciding interlocutory application................0-.-6- _ 236
Order determining statute to be unconstitutional..............0. 236
Order made on summary application after judgment............ 237
Final orders in special proceedings............... 00 cee eee eee 237
Orders made non-appealable by statute.... 16. cee cece eee eee 239
Orders withholding or awarding costs. ...... 218, 219, 225, 226, 240
Proceedings to take and perfect an appeal to the Court of Appeals... ... 224
Procuring certificate or order allowing the appeal... ..... ........ 224
When a certificate or order is necessary............ 02.00 eens 241, 242
Application to the General Term............. 00. e ee cece eens 242
When the application will be granted or denied............. 248, 244
Time within which on appeal must be taken.............-.. ese eee 244
Preparing and serving notice of appeal............ 0c. eee eee ee eee 245
Form and contents of notice of appeal ....... 22... ee ee ee eee 245
Stipulations fur judgment absolute............. 0. cece eee eee eee 245
Service of the notice...2: i sauces oa sewee dees os. es aeacarsremangingiieeiars < 247
~ Security to perfect the appeal.............. 2 cece e cece eee ee ee tenes 249, 250
When no security required. .... 0... . 0.0 cece cece eee cece ees 69, 249
Waiver of security’: cc5<sc2.4902 504 soetaewene ele eeedes see cad 89, 249
Deposit in lieu of undertaking..............6. cece eee eee ee eee 89, 249
Serving undertaking and notice of filing............. 0. eee eee 99, 250
Requisites to the undertaking. .......... 0... cece eee cece eee eee 71, 250
Staying the execution of the judgment or order appealed from........ 75, 251
Of judgment or order for a sum of money...........6.. eee eee eee 75
Of judgment or order for delivery of property .............ese eee U7
Of judgment or order directing conveyance ............eeeeeeeeeee G7
Of judgment for real property, CtC.. 0.00... cece eee cece eee ee eee 78
Of judgment or order directing sale of real property...... seiseenwiee 78
Of judgment or order for specific performance ......s.ceeeeee ees 79
600 Inpex.

COURT OF APPEALS—(Continued). Page
Of judgment in action for dower.........ceesccecesecseccesereeees 80

Order for stay in cases not provided for.........++ aso Gin sis iseesace 79
Limiting the amount of security on appeal..........+..0ee006 92, 98, 253

Form and contents of the undertaking... ........ wsseceeees 75, 79, 252

Filing undertaking and serving copy...........2:eeeeeeeeeeeeecees 253
Exception to plaintiff’s sureties and justification thereon............ 100, 264
Curing defects in preliminary procecdings..........00.seseeeecee ees 116, 254
Transmission of the return to the appellate court..........+. ses. 135, 254
Contents and requisites of the return............0..ceeeeeee eee 254, 255
Application for further return..........00. cece cece cece ne eeeeee 256, 268

Motion to amend or correct the return..........-...-- Miwa Miles oo. 268

The case or appeal DOOK............ 0c e cee cee cence eee etecee cence 129, 256
Contents of avcsiacece aw £4.005.050 00a 65a ee Ce SOAS OR OLE dos scrartiatete 129, 256

On appeal from award of Board of Claims.... .......:.eeeeeeeeeees 130, 248
Printing and serving case or appeal-book.............eeecee eee eeee 155, 257
Making, printing and serving points.............eeeec eect cence eee 153, 258, 270
Serving and filing notice of argy™Ment.... 6... cee ce eee cece cee eeees 250, 270
Bringing on the appeal a5 @ M0.:0N...... eee cence cere ee een et eneeeeeee 260
Obtaining preference on the calendar...........0.:e cece eee cece ees 156, 159, 260
Setting down cause for a day certain........... cece cece ence eee eee enees 260
HIXCHAN ZING CAUSES. oO oroi gies cnc beg AG dete a bales cdo OM Saw etes aes Gesee dees 261
Striking cause from the calendar............ ceecsceecccccecsceesenescuee 262
Dismissal of appeal to Court of Appeals ....... 0... . cc cee cece ence eens 266
For failure of appellant to file return... .........0 0 ccs ee eee ence eee 266

For failure of appellant to serve the case.......-...cceeceeceenceecs 267

On default upon the hearing................. sigan beaeike ails santos 272
Restoring a dismissed appeal......... 20... cece eee e cece ee eneeeeeees 262

Appeal not dismissed for failure to notice for argument............. 270
Cross-appeals, when and how taken............cceeeeeeeeeceeeeeseuees 269
Proceedings on the hearing............c cs cece een cece cere sence eseceuee 271
Call igi thecal en dans) seve siasess'cats cue aslnoaed ans eon Waw sear ¢ 271

RASSCO CALIBER is sade aia ceuataigiaus suondie ssaveresdodsatelalufavaiandve ogbela QuarslaveYew anu omveiegs 271
Submission without argument,......... 0... cece ec ee cece ee cece enees 271

The argument of the appeal........... ccc cece cece e nce e ere eeee 271, 272

DCI bcos ches neeks saaneea yee aed ie ha ai wera bate Sewrarscah edoarstghamapenandinleen 272
Questions reviewable on the appeal............ eee cee cece eee cence eee 27
Questions not passed upon by the Gencral Term.....................273
Questions not presented by exception............. ce cceeeeeceeccees 276

Mere abstract questions not reviewed. ......... cece eee cece cere eee 276

On appeal from a final judgment... 2.2.2... cece eee eee eee 27
Questions of fact, when reviewable........... subasiaiab ctaus isl apatateeeacers 278-285

When arising on conflicting evidence...............0.0005 tog ay 278

After trial by a court or referee .......... cc cece ee cece ee eee: 278

ATER TTAL DIP MY se neay Seas ly races ee eretcceidle.g sa Su ae SMR eH Sea eR 281

After trial before a surrogate... 0... cece cece cece cece ee eeee 283

Upon appeal from an order........... 0.0 c ccc cee cece eeeee 283-285

Principles governing the decision of the appeal............. 0 cece eee eens 285
Error must be affirmatively shown ...... .. ccc. cece seeceececeees 285
Decision sustained on any ground appearing in the case..,.......... 285

Harmless errors disregarded ......... 0. ccc ccccccacucceesccceeeens 286
InvEx. 601

COURT OF APPEALS—(Continued):

Page
Mode of disposing of inconsistent findings........ pie Cite cataaed 286
Determination of questions of fact ......... 2... cece eee e cent eee eee 287
Presumptions in support of the findings of the trial court........... 287
Conclusions of law unsupported by findings of fact................. 288
When the conclusions of law will be sustained................. 288, 289
Where the findings of fact are unsupported by evidence ............ 289
When a refusal to find a fact will justify a reversal................. 291
Refusal to find a conclusion of law............. cece cence cece eee 292
Where the court below refused to act for supposed want of power... 292
Where the judgment of the General Term is unauthorized.......... 294
Judgment and remittitur.......... cee eee eect eee cece cece erences 295
Power of the court to affirm, reverse, or modify................005. 295
When the court cannot affirm in part and reverse in part............ 295
Judgment absolute on appeal from order granting new trial......... 295
The remittitur to the court Delow......... cc ce es eee cee ete eee eeeeces 296
Form and contents of the remittitur.........0. cece cece eee ee caeee 296
Stay of filing remittitur on affirmance by default................... 297
Jurisdiction not lost until remittitur filed, &c ............ cee eee 297
AMENAIN gy TEMG UT 52.5 ess shsaicpatctearow loieeidieowielovece's 6 oe steie's FFs ERS 297
Judgment below on the remittitur...... aig ip ghee. b's si 90 tie eh Gis Weta e STAT IE 298
Application for reargument......... cece eee cee eee e tees ce eees 299, 300
Costs on appeal to the Court of Appeals ..... 1... cece cece eee ee eee 468
When awarded of course to prevailing party.............0.. eee eeeee 468
When in the discretion of the court ...............05 ce eee cree eens 474
Ultimate right to costs after successive appeals..................085 IV
Construction of decisions awarding Costs............ sce eee eee eens m9
Sums allowed as costs on appeal to Court of Appeals............... 485
(See Costs.)
CROSS APPEALS:
‘When and how taken .......... wikeOsies Sh welente wessee ee mne: Bh eWeek 269
Must be heard together............ccccccc ccc c eee eeecsescscesesees 446, 473
Costs of appeal). «.si.s.cecitersceeda ans sitios cae we oseeekereseene as sax sles 473
DAMAGES :

Excessive damages, not a ground for reversal on appeal from judgment... 377
When a ground for reversal on appeal from judgment of justice..... 452
Reversal by County Court for failure to award nominal damages........ 452

Review of orders granting or denying new trial for excessive or insuffi-
Cll bsc scavasins Wawsad veeee ec Sesh sale oe Vetere eee es Uy eee ees 544
Review of questions of damages by Court of Appeals............... 234, 282

Power of the General Term to modify judgment by reducing damages... 355
Motion for new trial on the ground of excessive or insufficient damages. .

498, 505

DEFAULT:
When no appeal lics from a judgment or order by default ........ 9, 201, 381
When a judgment by default is appealable.......... cee e sere eee eens 9, 10
Relief from judgments or orders taken by default ....... ...eee see seen 9
Review by Court of Appeals of orders opening or refusing to open...... 225
Reversal be default not allowed in the Court of Appeals............46.. » 272

Affirmance by default in the Court of Appeals ..... ad's bois. 4 see mai suiierame ele
602 InpEx.

DEFAULT—(Continued): Page:
Review by County Court of judgments by default......... ..+.-+- 9, 20, 414
Service of affidavits excusing default...........200c005 ce eeeeeeees 441
Ordering new trial before a justice... ...... 0... cece eee e sence ewes » 441
DEFICIENCY :
Stay of proceedings on judgment for deficiency in foreclosure........... 76
DEFINITION OR CONSTRUCTION OF TERMS :
DECI CG iaerapaictahet ceases eteteg Wha ota & wee gas eloraasteense wine satis Moun Oamntana ete 281
Binaljudgmenty iy cise sits ees baae reueivhedeuekedeiauwcoeae te <ehee ees 210
Final order... ...........4 DuWS Een exe sine alee SOIR Hee ae Ese SE a awiece 238
Brecholdet's isan eww aun sien, Sonu eeeowewiee Aekeeh Mien eee 102
Householdetzcgscaucisreceteceevarecsieeeseska reeves ge wiele ose e oe ae 102
Intermediate order........... 2. ec cee sees eeee cease tae! We geared: oar 212
Matter in controversy.......... ccc cece cece cece es ene pe cereeeancee 202, 204
Person interested.........cccscccnccecveeene cone cetcetaseweccseeeeee 36
Substantial rights... scccseccss ss oa es bed esse Sates oeiebinaiee dine geeens 215
DEMURRER :
Mode of reviewing decision upon Gemurrer.............eeeceeeeeceeee - 50
Review by Court of Appeals of decision on demurrer...........0+e2e00+ 212
DEPOSIT :
In lieu of undertaking on appeal....... 2... ccc cece ence eect eect ereeers 89
Amount of deposit may be decreased by stipulation................2254- 90
Disposition of the deposit. .... 0... cc cece eee ee eee eee een eee nee enes 90
Loss of money deposited... 00... ccc ccc e cect eee eee tee ee eeeeeeneeeaee 90
DEVISEE :
When entitled to appeal from decree of surrogate. ........c.ece cece eens 36
Must be substituted before the hearing of the appeal................. 39, 41
Time within which an appeal may be taken by.........2..----e-0008 oe 59
DISCHARGE :
Of levy upon personal property........cerereeseeceerenereeeeesereeees 106
Of sureties from liability on their undertaking........... dnea debe weww ees 114
DISCONTINUANCE :
Of action, with or without payment of costs, discretionary....... ... 224, 225
Of proceedings to acquire title to lands. ............... SiGe Ro Rete 225
DISCRETION :
Orders resting in discretion not reviewed by the Court of Appeals........ 221
Distinction between absolute and legal discretion.................0 222, 231
What orders are discretionary. ........ cc cece ec ec cece eee cee eteeees 222-232
Abuse of discretion may always be reviewed............ ce cseceuceeees 231
What is meant by abuse of discretion..... ... 0... cece ee eee eee eee 236
Refusal to exercise discretion for supposed want of power, reviewable.... 217
Burden on appellant to show absence of discretion in court below....... 232
General Term will review discretionary orders.......... Sie siaididnoane ss 306
Principles governing a review of the exercise of discretion.............. 806

Common Pleas will not review exercise of discretion by court below 405
Inpex. 603

DISCRETION—(Continued): Page
Supreme Court will not review exercise of discretion by inferior court.... 365
County Court will not review exercise of discretion by the justice........ 449
When costs on appeal are in the discretion of the court...............4 474
Mode of exercising discretionary power as to costs of appeal......... 476, 479
Discretionary costs must be awarded... ........ cece cece eee eee wees 476
When the appellate court may award costs in discretion of court below.. 479
Whether motion on the minutes for a new trial shall be entertained...... 498
Costs on motion for new trial on the minutes are discretionary.......... 508
Whether exceptions shall be sent to General Term, discretionary......... 510
Whether new tria] shall be granted upon newly discovered evidence. .366, 529
Whether new trial shall be granted for surprise...............2. cee eee 535
Abuse of discretion in compelling agreement of a jury............. 260 538
Whether second new trial in ejectment shall be granted...............4. 545

DISMISSAL OF APPEAL :

For failure to procure order for substitution...........ceeseeeeeee 41, 42, 895
For failure to procure & return. ........ 0. cece cece cece ee tee eeeee 266
For failure to serve & Case... 1... cece cece cece ee eee erence eenes 267
Where an appeal is taken from a non-appealable order...............-.. 296
Motion at General Term to dismiss an appeal............6. cess eee eo. B21
For failure to bring it to argument in County Court..................4. 439
Costs allowed on dismissal...........c. cece ees scene cer eteeeseeaee 486, 487
For failure to pay costs in judgment, and fee for return............. 422, 423°

DOUBLE COSTS :

Wihen-recoverables cc ci2sccs cocci ccc dee wewiowouwewde sa wioeu aes 489-491

DOWER: (See Costs.)
Preference of appeals in actions for..........ceeeeeee Bs o'er orataienaisvetesernraehe 158

EJECTMENT :

When new trial in, a matter of statutory right..........0.....ee.eee 544, 545
When new trial in, a matter of discretion...........0. cece cece eves neces 545
Terms upon which party is entitled to new trial..................6% 544, 545
Defenses permitted on new trial in... .... cece eee cece ee eee 546
Stay of execution in action of ejectment..........ccceeeeecesee cee eenes 78
Right of prevailing party to costs of COUTSC........cceseceee eee eneeeee 468
ENTRY :
Of a judgment indispensable before appeal therefrom................ 438, 61
Compelling adverse party to enter judgment........... 0... cece eee eee 3
Of an order indispensable to an appeal therefrom........ pectinte secre 44, 61
Compelling adverse party to enter an order........ 0. eee eee eee eens 44
Of judgment or order of the General 'Term on appeal................006 857
Of judgment on remittitur from the Court of Appeals............. 0... 298
Of judgment of Supreme Court on appeal from inferior court........... 378
Of judgment of Supreme Court on appeal from a Surrogate’s Court...... 400
Of judgment on stipulation to reverse a justice’s judgment.............. 432
Of judgment on appeal to County Court on questions of law............ 453
- O£ order that exceptions be heard at General Term .............00.00- 512

Notice of entry of judgment to limit time for appeal..........s.. ee eee 56
604 InpEx.

ERROR IN FACT:
Ordinarily corrected by motion, and not by appeal...... iedeenreseviage 6
Review of errors in fact by appeal to County Court.... ......... seeeees 439
Service of affidavits showing the error........... ce ces eee eneeeeees 440
Affidavits in opposition to appellant’s affidavits... ....... ab. hsions ihre 440
What constitutes error in fact........0 cee cece eee e ence e ee eee 440
Judgment of the County Court on the appeal...........0eee eee 440, 446
ESTRAYS: :
Orders in proceedings against, how reviewed .........00.5e00 veeeee 52, 417
Security to perfect appeal........... cece eee eee e eee DP astsiansiers, wie 72, 74, 426
EVIDENCE. (See Verpict ; Questions oF Fact.)
How stated in a case...........-.20005 AMMO AeA Ee ArRmERueNeAeL temas 142
When the case must state that it contains all the evidence.............4. 144
Introduction of evidence on the appeal......... eee cece ee eee eee eee 161, 163
Amendment of pleadings to conform to the evidence..............000 00 163
Error in receiving or rejecting evidence as a ground for reversal 175, 178, 341
Where the appeal is from a Surrogate’s Court...............6.0. 178, 399
Where the appeal is to the County Court................0..005. 451, 452
Where the objection was general.... 6.2... 00. eee cece eee eee eee 179, 180
Error in receiving or rejecting evidence as a ground for a new trial. .506, 548
Review of facts depending upon conflicting evidence. .278, 281, 283, 287,
342, 348
Review of determinations as to the weight of evidence....... .... .... 180
By the Court of Appeals.............. suisneaets ay cuetthaleasldanieds asaatiieee 280, 282
By the General Termin... c5. ccsiek see sasace caw ieiee saree bee ae 834, 385, 842
On appeal from an inferior court..............0 eee eee 377, 412, 449
Review of verdict or findings unsupported by or contrary to evidence...
279, 289, 337, 339, 3877, 448
Verdict contrary to or against the weight of evidence as a ground for
MEW TA eased epg aww eens 1a ee od anew ered waw esx aber 502, 505
Newly discovered evidence as a ground for a new trial..... Sse RSet SG 524
What is meant by cumulative evidence... 2.0... . cece cece cece e ees 528
Must be returned upon appeal to the County Court upon the law........ 433
EXCEPTION :
To sureties in undertaking on appeal........... 2... cee eee eens 100, 387, 429
To determination of a challenge to a juror...... icy ceevacsiean eens Cae ce 122
The proper mode of presenting an error in a ruling upon the law........ 124
To rulings upon questions of fact, not authorized.................. 122, 124
To refusal of the court or referee to find a fact upon request.......... +» 124
To a finding wholly unsupported by evidence..............0..000 ceeee 124
To rulings of a surrogate on trial of an issuc of fact................. 124, 127
Not necessary on a trial before a Justice of the Peace ................. 124
Review of errors of law by the General Term in the absence of......... 125
Necessary to present error for review in Court of Appeals.......... 125, 276
When necessary to present error for review in Common Pleas.......125, 126
How exceptions must be taken to be available.................. eae ewes 126
To rulings upon the trial....... Iees — weE eee SOR er arneean wees 126
To the charge to the jury ...........0ccce cee ee veveseesnesee «127, 183
To rulings of a surrogate........... Cece ee eee eect ten eee ee AQT, 128
InpeEx. 605

EXCEPTION—(Continued): Page
To rulings made after the cause is submitted........ ieee Soaiers 127, 128
Extension of time to make and file exceptions..........ceceeeeeeeeeees 129
When exceptions must be stated in a case....... ce caceeeeeceeereeeees 137
When exceptions may be reviewed without a case... ..........ee.ee eee 133
Time within which case and exceptions, or case containing exceptions
MNSO DE MAE ANA SEPVERD Sood side ine sigs seis ticle sisi g@eipeie eaeeie aie ee 1.9
Requisites of a bill of exceptions. ......... cc. cece eee e cece eres tees 141-146
Settlement of case and exceptions........0 0... cccece cece eee eeceeeeeeees 149
Filing case and exceptions and annexing the same to judgment-roll...... 152
Statement: of, in) points: «2% cars cwiewtdeseeesaeeey sae0%-% 25 Oo5 Maas 153
Amendment of case and exceptions on appeal... ............- eee eee lil
Insufficient exception to a charge or to a refusal to charge.............. 183
Insufficient exceptions to findings or refusals to find.................... 276
Motion for new trial on exceptions. ............. 0. cece cece ee eee eee 498, 507
Motion that exceptions be heard at General Term..................00-- 509
Motion for new trial made at General Term on exceptions.............. 512
EXCHANGE :
Of causes on the calendar of the Court of Appeals............0cce econ 261
On calendar of General Term.............. 2 eee eee ee eee 828
EXECUTION:
Staying execution of judgment or order appealed from............... 75-106
(See Stay or EXECUTION.)
Discharge of levy on personal property pending the appeal.............. 106
Review by Court of Appeals of orders denying leave to issue. . . .218, 226, 230
Review of order refusing to set aside execution issued without leave..... 220
EXECUTOR :
Must be substituted in place of deceased party............c.eeeeeeee .87, 41
Time within which an executor may appeal............ Fa F ahs eaobierelarepecne 59
When security is not required to perfect appeal by...........e.-ceeeees 69
Preference of appeals to which executor is a party............ceeeee eee 157
FINDINGS OF FACT. (See Quzstions oF Fact ; VERDICT.)
No exception can be taken to a ruling on a question of fact............. 122
Exceptions to refusals to make any finding upon questions of fact.124, 128, 333
Exceptions to findings without evidence................- 220s. cee 124, 128
Upon settlement of case by surrogate. ....... 6... cece ee ee eee e eee e eens 128
Statement of, in the CaS€........ cece cee ee eee ee ere ee eens eens 145
Further findings on settlement of case not authorized................... 151
Presumptions in support of findings of fact............ec cece eee eee 174
Review of findings of fact on appeal to Court of Appeals. ..278, 280, 283, 287
Tnconsistent findings. .......... cc cece ee nec cere eccee cee eenaeeetenenes 286
Review of conclusions of law unsupported by findings of fact........... 283
Review of findings of fact unsupported by evidence...............- 279, 289
Review of denials of requests for... 1... cece cece eee eee ceeeee 291, 333, 384
Conclusiveness of findings of fact on appeal to General Term........... 342
FORECLOSURE :

Stay of execution of judgment in........... siadihinlsieie ob eSeee eas'ee s 76, 78, 79
606 InpeEx.

FORMS :

Affidavit on motion to compel the entry of an order......ssseeeeeseeees
To obtain stay of proceedings on appeal from an order.......-.....
To obtain stay of issuing of a warrant in summary proceedings......
Of failure to file return. .... 0.0... ccc cece es tec ewer e cence centeeeees
To accompany note of issue in Fourth Department....... 22.2.5.
Of service of notice of argument.......... 00s ccece scene ce eeeceees
Of omission to file the Case... 2.0.0... cc cece cece eee e re eeee Seaietegibie
Of service of notice of acceptance of offer of judgment.............
OP disbuTSeMents gcse waste seve dians visite a sigietiuanaisio Meee Se netwwes
Allowance of sureties on justification ..........0+-..eeeeeee sia sidideieeers)s
AMendMeNts:16 a CAKE, 4 6 ciescie cies caw enawsile s sini sae bees entesinie DERRee®
Case containing exceptions ........ 0... ce ceee eee c cree eee eeeseeree eee
Judgment of affirmance si, soesissesiscseisciensislas ae edewsvneecies wees eewew
OL TOV ETS os is sssts'sso csi atacarasavavacoisvers siaish sre nlnaisr Nie dfa'al sla eiaieinie wacae siecae

On appeal to the County Court..............0068 oajerofesels ais siesansrearavars
Of reversal on stipulation of the respondent.........00 seceseccreee
In the County Court upon offer........ ccc cece eee eecceceeeenceecs
Note of issue—Supreme Court, First Department....... .....ee.eeeeeee
Superior Court, City of New York............cecsscecveses weaweu
Common -Pleas.;..i0000505 ss eae ss baa ices st porsss saemean ae eee seer es
City Court‘of New York, o..scccsseupsevnnenntaisewee snesee eee eee.
Superior Court of Buffalo... ........ cc cece eee cece eee rece cree eenes
Preferred cause, Fourth Department...........0..ceeeccceeseseeee
Note of exchange of causes..........ccceeccec csc ceceeesccesenesseeecs
Notice of appeal—Stipulation for judgment absolute..................-
From a: judge's orders iiss ceasircaesis ns sngsws s 00s bees SS Beene Sena
From a final judgment... ......... aia Balai ait es Sa aia ears Sets ot aie Bieearaleiaisle
From a surrogate’s decree, cesses aseessc ise esta cedessveceeeevas ven
To the County Court. ....0.cccccsiceescvesetedscdvstedocvenisenas
Notice of filing undertaking ........... 000.200 ce cec ence eeeeeeenee cee
Of exception to sureties. .02.c0ccn caaweweensedes we wees caw acewun
Of justification of sureties 0.0.0.0... 0. cece cece cece ence en en eee
Of allowance of sureties upon justification... ............. eee eee
Of deposit in lieu of undertaking........... ccc. c cece eee eeeenceeces
Requiring appellant to file the return...... 1.0... eee cece c eee ee ee eee
Of argument—General Term........ 0... sec ceecece ces scecscneeces
Of argument—Court of Appeals......... ccc. cece es ce en ee eeccerecs
On, proposed Case ww msnacesreesnaasenedagenmcdesialdeussuigeseniacin
On proposed amendments to Case........ sc cece cece cece ces anenes
Of settlement Of CaSO: vise doth cscs cade occe-swsewdevaescdvnenere

ee ewe ee meee meer ee ee ee mne sere nne

Offer of judgment—County Court...........c. eccececeseeeseceeeceees
Order—directing entry of an order made out of court... .......c0.0.000-
Staying execution of order appealed from..... ...... nianoiaie weiwatee nears
Of county judge staying warrant in summary proceedings ..........
Staying proceedings on appeal from order as to estrays.....

Beevers
InpeEx. 607

FORMS—(Con inued): Page
Dismissing appeal for want of prosecution.........4.65 nid Seceare cing 567
Directing clerk to file the case, etc.............2000% oi Heisiguarsioayecainns 575
Declaring case abandoned... 20... .. cee ee cece eee e eee e ence eens 576
Granting a new trial... 0c. ceiesecvenes seer easeos steer eens six sew OVE
Denying motion for a new trial... .. 0.66. cece cece eee cece tweens 577
Directing that exceptions be heard at General Term..............6-. 577
On affirmance of judgment ....... 6.0... c0e cece cece cece eeeeeeees 578
On reversal of judgmcnt......... 0... ccc cece eee reece eee eeeees 579
For judgment on remittitur..... 0.0... cece eee eee pee ene eens 579

Stipulation for reversal, by respondent ............. cee cece ee eee eee eee 552
Reserving a cause for a day certain. ......... cee cece eee e eee enee 571
Undertaking—To perfect appeal to Court of Appeals........ceeeseeeees 552
To perfect appeal and stay exccution of judgment for money........ 553
To stay execution of a udgment for money........... ceeeeeee eens 554
To stay execution of judgment in replevin............ 0 cece eee eee eee 554
To stay execution of judgment in ejectment............ cc eee e eee 555
To stay execution of judgment of foreclosure ......... 6. eee eee ee eee 555
On appeal from order directing payment of money................. 556
On appeal from order direc!ing deiivery, etc., of property........... 556
To perfect appeal from decree of surrogate Hs arene a raseha ip Senelainiglce’ abe sachnnhate 557
To stay execution of decree for payment of money ................. 557
To stay decree or order for delivery of property....... ...-..eeeeee 557
To stay execution of decree or order for commitment............... 558
To stay execution on appeal to County Court..... Lihodiaaya Sees mane 558
To perfect appeal in summary proceedingS.............ceeeeeeeeees 559
To stay issuing and execution of warrant in summary proceedings... 559
On appeal from final order in proceedings against estrays........... 560

FRAUD :

Judgment may be impeached for fraud... ........ cece cece eee eee ee ees 12
Relief in equity from a judgment obtained by fraud............. ...... 12

GENERAL ASSIGNMENT ACT-

Review by Court of Appeals of order for examination under.... .. .... 229
Preference of appeals in which assignee is a party........ cc... see ees 157

GENERAL TERM :

Ofthe: Supremé: Court :acveeve Mende ve ean waa dag nen sal ame ee woe ss 24
Appointment of General Terms..........-.. 0: eee ce eee ce eeteees 25, 26
By whom heldveiiis2 a cecxsass vise eaaiaasy teeeewes wees Laineniee x4 25
Concurrence necessary to a dccision.. 0.0.2.6... cece cee eee eee 25
Appellate jurisdiction... 0.0.0.0... ce cece cence ee eee 26, 27, 301
Power of the Gencral Term on appeal..... 2... 0.0 cece cece cence eee 301
May correct crrors not presented by exception............ceeeeeee .. 301
Has all the general jurisdiction of the Supreme Court............... 301
‘May grant relief to opposing party on appeal from an order......... 801
On affirmance ot order overruling demurrer may direct judgment.... 302
May attach conditions on affirming order ......... 0... eevee eee eee 3802
May direct the proper order on reversal. ..........0. 0. eee ee ee ee eee 302

Cannot determine controverted questions of fact and render judgment
MONON js. eas ves aos eae eeRBedewes We: Ta¥ERT EAE esis) seis . 002
608 InpEx.

GENERAL TERM—(Continued): Page
Of the Superior City Courts..............ccceeee ees a Gevardtatalate easiata eidhchate 28
Appointment of ..5 20425 clatie lee cevveedeeeteaaee qeeegawaweienres 28

By Whom Held. wise. sicinis. aus vu pease ais awisie alguie selves elbs eeinee obanse 28
Concurrence necessary tO decision.........csceececeeeceeeecerecens 28
Appellate jurisdiction. ......... 0.0.0... cece cece cree eeerees 28, 29, 301

Of the City Court of New York.............c0ceccececceeeceeeeeeeeees 29
AppointMen Ofc cwas cae ive tances oes aes vous ean earnaes seemea dene 29

Dy whom Held ...05 aunisicecisoca venti ose sas ueowin Saleauantweieean 29
Concurrence necessary to Gecision.......... 0. sees eee e cece ee eees 29
Appellate jurisdiction........... 0.0001 ce eeceeeeee 80, 301, 302, 304, 305
Review of determinations of, by Court of Appeals...........+eeeeeee 196-300

(See Court or APPEALS.)
Review of determinations of the General Term of the City Court of New

(See Common PLEas.)
Review of determinations of infcrior courts at General Term of Supreme
Courtice. gusiessusneeceuecew Mosh LS ehUNwan a eae eG atweaee saa 361-380
(See SuPREME CouRT.)
Review of determinations of Surrogate’s Court at General Term of Supreme
COULE sacs a aires enawanine cel ews eeneen weRece anes egewetews 381-401
(See SuRRoGATE’S CouRT.)
Appeal to the General Term from a judgment or order of the same

COUTE sioctsin aicinrs aateneteeamaaaeied ae ease aR Meleaiaeeee 4 ¥be w.0\ a 301-360
Nature of the jurisdiction exercised by the General Term on the
APPA] wwe cruise ee eduoresanun abana adem aweee: des etdaacisnay 301
Jurisdiction on appeal from a final judgment..............0. ce eee 802
Jurisdiction on appeal from interlocutory judgment................ 303
Jurisdiction on appeal from orders............. 0c ccc ence ceceee 304-313
Orders from which an independent appeal may be taken.....304, 305
Ex parte orders not subject to review. .......... ccc eee e ee eee 305
Order denying motion for judgment on pleading as frivolous.... 306
Discretionary orders may be reviewed...........c0ccccceeeeeee 306
Orders granting, denying. vacating, etc , provisional remedies... 307
Orders granting or refusing a new trial................ 0000008 308
Orders involving some part of the merils.................... 308-310
Orders affecting a substantial right................. 0. cece ee eee 310
Orders determining the action and preventing final judgment.... 310
Orders determining that a statute is unconstitutional.... ....... 310
Orders made upon a summary application after judgment....... 811
Orders made out of court....... 0... c eee cee ence eee eeaee 311
Orders made in special proccedings......... 0... ccc cece eee ee eee 312
Time within which the appeal must be taken.................... 54, 313
Service of the notice of appeal ........ ccc ccc cece cece 2-68, 314
(Sec Notice or APPEAL.)
Security to perfect the appeal not required..................c000ee 70
Staying execution on the appeal. ...... 6... cece eee cece eee ee 75, 81, 314
(See Stay or ExEcurton.)
Making case and exceptions and service of same.............00e cece 315

(See Casz, ExcrEptions.
Papers upon which the appeal will be heard........... ccc eee eeecee 182
InpEx. 609

GENERAL TERM—(Continued) : Page
Printing the papers upon which the appeal will be heard........ 155, 316
Making and printing points.................e00eeeee elas selec ae 153, 316
Filing note of issue... ....... 0. cece eee e cece cues ivibweweie sesh eeees 319
Requisites of the note Of issue. ......... ccc cee c er ee eeceneececusece 317
Service and requisites of a notice of argument.................. 319, 320
Serving and filing papers............ccceececceccseucsetecceres 820, 321
Motion to dismiss the appeal...........cccccecccsccececcucsecseeees 321
Calendar of the General Term, how made up...........5c0c0.0 0 seeees BQ
Obtaining preference on the calendar.............00.e00e0e 156, 159, 322
Correcting the calendar....... 0... cee ce cece cece ec eseceeeeeenne ve 324
Striking causes from the calendar.............. 00 cece cece ee eeeeeee 324
Day Calendars: -sicssecencteine suon anes. sae sey at eetaatatwmtdeons 326
JRESELVING CAUSES 2.530) 4 cas rents ctewac scapes sh eee eee ey ee anies 327
Proceedings on the call of the cause......... cheese eee ee eee eee ees , 828

Furnishing papers to the clerk........ 0... 0... cece ce ceeeeeeee 328
Default at the hearing. ............ cece cee w eee e ee eeee eeeeae 3830
Objections that proceedings are stayed...............eceeeeeeee 831
Argument of the appeal... 0.0... ccc cece cece eee cence eeeeeres 831
Submitting case without argument............. 02 cece cece eee eee es 332
; Review of questions of law where the trial was by conn or referee... 332
Review of questions not raised by exception............ ... 301, 333
Refusals to find facts on request............0e. cee eee e eee eee 333
Review of findings of fact without evidence.................66- 334
Review of questions of fact where the trial was by court or referee.. 334
Review of questions of law where the trial was by jury............. 335
No review of facts on appeal from the judgment................... 335
Questions brought up for review by appeal from judgment on a verdict
335, 336
Questions brought up for review by appeal from interlocutory judg-
MeN tis < sas sawsweGene sees ose seis ess Me Aaa EE Mesa ee 33
Questions reviewable on appeal from order granting or denying new
ETAL sccsik ia seerayccois ac Oe a a tee hack a senctek Moe RS sae A Save paneeare 337-339
Where the grounds of the motion do not appear from the case... 337
Where the objection was not taken on the trial................. 338
Where the motion was made upon unauthorized grounds ....... 339
Where specific questions of fact were sent to a jury............. 339
Questions reviewable on appeal from judgment and order denying
Mew trial... suis wiccraseancel ens ve see's wae setae dal GieaWeramerie dss 338, 3839
Questions reviewable on appeals from orders generally.......... 339, 340
Review of orders on appeal from a judgment...............00. 000 341
Principles governing the decision of the appeal.................. 841-345
Effect of erroneous rulings made upon the trial......... 178-188, 841
Conclusiveness of findings of fact by the court or a referee...... 342
Conclusiveness of a verdict by a jury..... 0.6... .c cece e eee 343-345
Review of discretion exercised at the Special Term or Circuit.... 345
Judgment or order on appeal....... 6. ccc cece eee ee ee een eee 350-358
Affirmance of the judgment appealed from...........0..0e 00005 350
Affirmance in Part .ojs:csieasisie-s saseeied 6640 Sia vdieo been eras auewiens 350
Affirmance as to some of the parties. ............006 cece eeees 351
Affirmance of an order...........ccceeee eee creecceees ceeees 352

Final judgment rendered at General Term........... ears wees 852
610 Inpex.

GENERAL TERM—(Continued): Page
Inserting grounds of reversal in the order.........+ paieaaiea tees 852
Granting new trial on reversal...........seseeeeeeeeeeeeee® 852, 353
Judgment absolute for the appellant..... RUGRATS oMea Rae sede 358, 354
Modification of the judgment below........-+seeeeeeeeeeee 354, 3355
Reducing the recovery..........ce.eee ce eeee conten ere nneees 355
Increasing the recovery... 2.2... cece cee ce reer ee nee eee eneeerens 306
Modification of the order appealed from. ..........+seeeeeeeeees 358
JudQMEnt-TOl. . 2... cece eter e eee eee ene ce eeeeeeeee 857
Filing judgment-roll, and entering judgment or order........... 357
Re-argument. ...... cece cece ence cece ee re eee ene eeeeeteess 358
Where the judges holding the term do not concur.......... 25, 28, 29
When re-argument will be granted or refused in other cases..... 358
Proceedings to obtain a re-arguMent.......-e. cece eseee een eeere 360
Costs of the appeal... 2... ... ce cee ee eect cece eee e cence eeenes 468-497
(See Costs.)
Certificate or order allowing appeal to the Court of Appeals......... 241
HABEAS CORPUS: 2
Time of appealing from order discharging prisoner in....... sesrceteeieeers 56
Security on appeal from order in... ...... ccc cece seen cece ee cncccsesees 85
HEIR:
When a necessary party to an appeal........ cece s ee eeece tence ceenees 40
When to be substituted in place of deceased party..........cceeeceseeee 41
When entitled to appeal from surrogate’s decree. ......0. cece ceeeeeees 36
Time within which appeals may be taken by heir...........eeeseeeeeeee 59
INCREASED COSTS:
Wrhenrecoverables sae sc ceieencs fae sad wag se nhes On ga Ghana teeiwacees 489-491
(See Costs.)
INFANT:
Preference of appeals to which infants are parties........ ye ake gia slaves asiaiers 157
INJUNCTION:
Effect of a stay of execution on appeal from judgment awarding........ 105
Who may appeal from... ... ccc cece cece cece eee cerns cen e eee eesenses 307
Review by the general term of orders vacating, etC....... 0c. cece ee enone 307
Review by Court of Appeals of orders granting, etc........... 0.00 ee eees 228
INSPECTION :
Order granting or denying, not reviewable by Court of Appeals......... 227
INTEREST :
In subject of controversy essential to right to appeal............. 2.00005 32
In the judgment or order entitling the person to be made a respondent.... 39
Meaning of the term “‘ person interested”... 00.0.0 ccc eee c eae ee ence ee ees 36
IRREGULARITIES:
Should be corrected by motion and not by appeal... ........cccee eens 6
Power of the court to amend its procedure........ weisikie Cini Weare sR ea'ee & 6

Case not required on mction for new trial for..... Seis baie Sovesiwess vese OLS
Inpex. 611

JUDGMENT; Page
Cannot be impeached collaterally if court had jurisdiction.............. 3
Mode of reviewing erroneous judgments........... 0... cece eee ee eee 3
Remedy for irregularity in a judgment. ..........0- 0. eee eee eee cen ee 6
Inherent power of a court to vacate, modify or set aside its judgments... 6
Remedy for mistake in the judgment entered.................0.0e ee eee 6, 7
Relief from judgments rendered upon default...................0. 9, 10, 201
Relief from judgments void for want of jurisdiction.................... ii
Relief from judgments obtained by fraud................ 0.0. eee e een 12, 13
Compelling the entry of a judgment........... cc cece ee eee eens 43
When an appeal should be taken from a judgment only................. 47
Mode of reviewing a judgment of reversal. ............. ..e.0 48, 209, 210
When the appeal should be from both judgment and order.............. 49

When both final and interlocutory judgment should be appealed from.... 50
Notice of the entry of judgment to limit the time in which to appeal..... 57

Specifying interlocutory judgment in notice of appeal................... 63
Staying execution of judgment on appeal............ eee eee eee eee 75, 241
(See Stay or Execution.)

Suspending lien of judgment appealed from.............. ec cece eee 107-109
Introducing evidence of a judgment on appeal..... ........ cece eee eee 162
Defects which do not affect or impair a judgment....................005 164
Presumptions in favor of a judgment appealed from................. 178, 285
Om appeals Senerall Ys ciicsccatece ve Geasiedineaiguon crete seuleeew nanos 189

By what court enforced.........-.. ccc cece cece erence cent etnees 190
On appeal to the Court of Appeals .......... cece cece eee c eee eseeens 295

Entry of judgment on the remittitur...... Jags Se eis baigieamn ae ee 298
On appeal to the General Term of the same court............0.0ceeeeeee 350

OL airmance:imisee vse: sdansnamiorarerseeegiewadaeee se biaeees vas 350

OfatirmanceAn partiax dviccasessesem@esiae ot chee es esta sama eear 350

Of affirmance as to some of the parties................. 3G layied awe vais 351

Of reversal..... .... Biota dhn ys ovalgnaayapecranasa teasose diosa p 9 as sie dug Sree actebed tela 352

Modified judgment on appeal... ........ cece ccc ee cence enone 354

Entry of the judgment of the General Term...................0000- 357
On appcal to Supreme Court from inferior court ......... 0... 0. cece ee ee 379
On appeal to Supreme Court from Surrogate’s Court...... ........0000e 40
On appeal to Common Pleas from the City Court of New York......... 412
On appeal to Common Pleas from a District Court...... ...........00 0s 461
On appeal from the City Court of Yonkers..............005 cee cece eee 466
On appeal to the County Court........ 0.6. cece eee cece eee eet eee 458, 454
By default, not reviewable on appeal............ eee ee ence eee aee 9, 10, 201
Of reversal, not appealable. 0.0... ccc cee cee eee erence eee 209, 210
What judgments are final. ..... 0.6... cece cee cece eee erent een aeees 210
What jadgments are interlocutory........ 0... cece eee cee cence ce neees 210
Review of final judgments by the Court of Appeals.................... 209
Review of interlocutory judgments by the Court of Appeals......... 212, 277
Review of orders vacating or setting aside a judgment.................. 218
Review of orders refusing to vacate or set aside a judgment ......... 220, 226
Review of orders opening or refusing to open a default ............... = 225
Review of orders staying the entry of judgment.................0ee eee 226

Review of orders preventing final judgment.......... sleGiaateeoseneis oot 232
612 Inpex.

JURISDICTION: Page
Not conferred by consent............ccceceeescnees cece ceseees eeeeeee 200
When presumed on appeal.............ececene ce ceceeeeeeeecenseeeees 274
Failure to recite facts showing jurisdiction in decree of surrogate........ 3
May be questioned for the first time on appeal ............0ceeeeeeveeee 274
Want of, renders judgment or order a nullity.............0eseeeeees won 11
Relief from judgments rendered or orders made without jurisdiction..... 11

Remedy: by appeal ss..c- 2.0 cece cees ce veeens ck ees sesa dees ete eas 11
Remedy by suit in equity........ 2... cece eee cece e cece cere tenance 12
Remedy by motion to set aside, &c.......... cee e cece cree cece ences 12
No remedy by writ of prohibition. .............cceeeeeeee ence eee 12
Nature of the jurisdiction exercised on appeal.............0005 eee 2, 3, 301
Of the Court of Appeals ........... cece eee cece ene e een ewesceeeene 28, 196
Exists only when conferred by statute ..........000seeeeeee enone 238, 198
Limited to review of actual determinations...............4 198-202, 273
Cannot be conferred by consent..........cccceeeceeeeeeverseneeees 200
Limitation as to amount in controversy.............eeeeeeeeees 202, 207
Limitation as to courts in which the action originated............... 208
Upon appeal from a final judgment ............. ce cece cee eee eee 209-211
Review of interlocutory judgments or intermediate orders...211, 212, 277
Upon appeal from orders........ 0... cee cece eee ee ee eee scenes 214-240
Orders affecting a substantial right.................. cece eee 215-220
Orders not affecting a substantial right.................0.2005- 220
Orders resting in discretion. ............ ee cesee ence cere eees 221-232
Orders determining action and preventing judgment........... 232
Orders granting or refusing a new trial............... cece eens 233
Orders striking out a pleading or part of a pleading............ 285
Orders deciding interlocutory applications..................... 236
Orders deciding questions of practicc......... ‘ianioe ne eee bes 222, 236
Orders determining a statute to be unconstitutional............. 236
Orders upon summary application after judgment.............. 237
Final orders in special proceedings. ...............e ec eeees 237, 238
Orders made non-appealable by statute.............. .ee. ee eee 239
To review an award of CoSts......6 cece ce ec eee eee eee eens 240
To review questions not presented at General Term................ 274
To review questions of jurisdiction not raised below................ 274
To review refusal to exercise jurisdiction..................0005- 217, 292
To review errors of Jaw not presented by exception........ 276, 288, 291
To review questions Of fact... 2.0... cece cece eee econ 278, 287
Where the trial was by the court or a referee... .............. 278
Where the trial was by jury....... 0. ec eee eee 281
Where the trial was before a surrogate. .......... 00... eee ee 283
Upon appeal from an order... .... 0... cece eee eee ee eee eee 2838, 284
To affirm, reverse, or modify the judgment below.................. 295
To render judgment absolute. ......... ccc cece cece eee eee etna 295
Terminates with the filing of the remittitur, etc..................... 297
Of the General Term on appeal from determination of same court.......
26, 28, 80, 301-313
Nature of the jurisdiction exercised on appeal.............. ....8. 301
Upon appeal from a final judgment..............6. cee cee eee ee ees 302

Where the trial was by the court or a referee.............000 eee 803
InveEx. 613

JURISDICTION—(Continued): Page
Where the trial was by jury..........0 600. cece eee eee ee eee 303
Upon appeal from an interlocutory judgment............00..-ee eee 303
Upon appeals from orders... 0.0.22... cece cee teen cece en eeaees 804-313
He parte O1dCTS > 22 v8.04 Hina edie ete avers GesR Sees Gees esas es 305
Orders resting in discretion. .......... 0... c eee e eee tense enone 306
Orders as to provisional remedies. .......... cece ee eee e ence 307
Orders granting or refusing a new trial...............0 eee eee 308
Orders involving some part of the merits...................2005 308
Orders affecting a substantial right.............. 02... eee eee eee 310
Orders determining action and preventing judgment............ 310
Orders determining unconstitutionality of a statute............. 310
Orders upon a summary application after judgment............ 811
Orders made out of court.......... 00. cece cece eee eet ee eee eeee 311
Orders made in a special proceeding. ..............0. cece eens 312
Of the Supreme Court an appeal from an inferior court................ 361
From what courts an appeal may be taken to Supreme Court.......
26, 27, 361, 362
What judgments of inferior courts may be reviewed................ 362
Review of interlocutory judgments and intermediate orders......... 364
Upon appeals from orders in actions...... 0.0... .. cece eee ee eee 364-368
Orders affecting a substantial right............. 0... c ee eee eee 365
Discretionary orders: scsi. 0c dvaivocoavenre@seassacesvess 365
Upon appeals from orders made in special proceedings.............. 366
Upon appeal from a Surrogate’s Court............. .. 381, 382, 397, 400
Decrees or orders made upon default... ...........--. 0002 ee eee 381
LE DONC. OTGELS 5.55 fecais iavasia eee held LEGS TAREE WERE S EMR RON Mobs 381
Orders affecting a substantial right........... 0.2... cece ee eee 382

Orders opening, vacating, modifying, a prior order or decree.... 398
Orders granting a new trial for fraud, newly discovered evidence,

Otis tepednebiseta bocunisiaae sata antics sreeurtere sss ele taeda weet 398

Upon appeal from the City Court of Yonkers................... 462, 463

Of the Common Pleas upon appeal from the City Court of New York.... 402
General statutory provisions ......... 0... cee cece ce eee eee eee ee 402
Upon appeal from a judgment. 2... 0... 0 ce cce eee cece ene eee 403
Upon appeal from an order granting a new trial................5.5. 404
Upon appeals from orders generally. ....... 60... cece eee e eee eee 404, 405
Questions of discretion. ....... 00. c cece cece cence eee ete eens 412
QireStidNs Of facta cee ceecsesaitineiewinwia. soeee eed evans ctlen pebn es 412

Of the Common Pleas an appeal from a District Court...............06. 455
Of:the- county Courts ois eu caradedemiernne eigen eatery eG ee ee 6s pe ee ws Ftd 414
To review judgments rendered by a justice of the peace............. 414

To review judgments and orders of certain city courts.............. 415

Of City Court of Auburn... 2... ccc ccc eect ween 415

Of Municipal Court of City of Rochester................00e eee 415

Of City Court of Albany. ...... (cece cece cence cece eee e eee naee 415

Of City Court of Yonkers....... 0... cc cece eee eect ee eee eens 416

Of City Court of Utica... .... ccc cece ccc ee ee eee rete etree nee 417

To review orders made in special proceedings .............--..005- 417

In summary proceedings... ...... ccc cece cece nce eee e ences 417

Proceedings against estrayS....... cee cece cece eee ee eect ee eens 417
614 InpEx.

JURY. (See QuEsTions or Fact.) Page
What interference with jury will be a ground for new trial...... seeeeees 536
Sending papers not in evidence to jury OOM. ........ eee eee ee eee ee 536
Statements by third parties as to credibility of witness...........-.- 536
Interference by officer in charge..........56 ceecceee seer eter etenee 536
Communications between jurors and officer.......-. .6- eeeeeeeees 537
Furnishing intoxicating liquor to jurors...........00: ee ee eee eens 537
Communications between judge and jury during dceliberations....... 587
Compelling the jury to agree .. 2... .. ccc cece eee cee nent e tenes 538
Disqualification of a juror as a ground for new trial.......6.5- -- serene 539
What misconduct of.the jury will be a ground for new trial........ ...- 540
Irregularities which could not affect the verdict, disregurded..... 540, 542
Reading papers not in evidence............. ee eee cere eee 540, 541, 542
Determining verdict by lot...... 0... cece ec ee eet cece teen ee en eees 541
Making independent investigations.............:seeee ee ee eee neces 542
Receiving liquors, refreshments or favors from prevailing party..... 542
Affidavits of juror not received to impeach their verdict.............--.. 543
Affidavits of jurors may be received to show misconduct of others....... 543
May be received to sustain verdict...........020e cece eee e nent eee 543
May be received to show mistake in entry of verdict .............+- 543
Error in charge to jury a ground for new trial..........+-.. essence eee . 548
Verdict of jury contrary to instructions will be set aside........... .... 505
Review of exceptions to rulings on challenge to a juror..........2-se eee 122
Verdict contrary to evidence as a ground for new trial...........-.-20e 502
Review of errors in taking or refusing to take the case from the jury..... 185
(See VERDICT.)
JUSTIFICATION :
Service of notice of exception to sureties.......- seeseeeereeees 100, 387, 429
Time within which sureties must justify after exception........ 100, 387, 430
Waiver of justification........ 0... cece cee ee cence eee nee ences 100, 101
Proceedings on justification. .... 0.0... cece eect e eee eee eee eens 101, 480
Qualification of the sureties........-.....008 afd eaiee wad eee oe tanks as . 102
Decision of the judge. ...... 2... cc cc cece eee e eee ee eee eeeeneeee 103, 387, 430
Effect of failure to justify... 2.0.00. cece cece eee e eect te eeeees 1038, 430
Service of notice of allowance of the sureties..............eeee eens 108, 387
JUSTICE’S COURT. (See Jusricz of THE PEACE.)
Review of judgments of, by appeal to the County Court................ 414
Review by Court of Appeals of actions originating in............. see. 208
JUSTICE OF THE PEACE:
Judgment of, reviewed by appeal to County Court...............5 shames 414
Has jurisdiction of summary proceedings to recover lands.............. 417
Mode of reviewing final order of, in summary proceedings........... 417, 419
Mode of reviewing orders of, in proceedings against strays...... 417, 419, 426
Service of notice of appeal UPOD....... 2... ee eee eee eee 421
Costs in judgment and fee for return must be paid to................... 422
Approval of undertakings on appeal by justice or County Judge......... 424
Undertaking on appeal must be filed with the justice.............. .605. 425
Justification of sureties before... 1.0... eee eee eee eens 429, 430
Return of, on appeal... i.e cece cree ence cece een enenee Miia winds aioe 134, 433
INDEX. 615

JUSTICE OF THE PEACE—(Continued): Page
Time within which return must be made.......... ceseeeeeeeeesees 433
Payment of fee for making the return essential................. 422, 433
Contents -of the returns ss6 sessccarcesnes smesecus Sertsassenee sea 433
Compelling return or a further return....... 0... cee eee eee ee 433-435
Substitute for return where the justice is dead, etc..............e08- 434

Exception to ruling of, not necessary to present qu°stion for review..... 124
Want of jurisdiction of, may be first raised on appeal.................-. 447
Review of orders of arrest made DY... . csc cece eee cece eee ee ce eeeaee 448
Review of attachments issued by........... 0. cece eee e sree eee eeeeeeeeee 448
Conclusiveness of determination of, upon questions of fact.............. 448
New trial before justice, when ordered by County Court...............4 441
Appeals to the Court of Appeals in actions commenced before........... 208

LACHES :

May defeat application for leave to amend........... cece eee e eee ee ences 119

LEGATEE :

When entitled to appeal from decree of surrogate ...........ceeceeeeees 36
When to be made respondent ........... ccc cee cece cece cece eeeeeeeaeeae 40

LEVY:

Upon personal property not superseded by stay of proceedings.......... 106
Proceedings to obtain discharge of levy pending appeal............. 106, 107
LIEN :
Proceedings to suspend the lien of a judgment appealed from........... 107
Suspending lien in another county.......... ccc ccc cc eee eee ee ee reees 108
From what time the lien is suspended.............. 00sec eee eee ee ee eee 109
Effect of the order....... Settee neta ete e tenn ee tenet teense en nenes 109
MANDAMUS :
How appeal should be taken from order in............ sce eee ee ence ee eee 51
Time within which to appeal from order granting..............-0..0005 56
Security on appeal from order in....... cc. cee cece cece ete e eee e ene 87
Preference of cause on appeal. .... 2. cc -ce ec eee etre teense ensue eeeoes 158
Review by Court of Appeals of order granting ..................0 06 228, 232
MODIFICATION :
Of judgment or order on appeal........... ce cece eee eee eee 189, 354, 400, 412
By the General Term on appeal ......... 0. cece cece een cee e ees 354, 400
Reducing the recovery .ics.i ees. dee east owe tag aes sews eneenee aeons 355
Increasing Uhe:lccOveryis sis esc s och tegen sors aka sea Ree Gewenenetie 356
Of OrderSieckucena sy coe oes det MesbeeGmeN eae Vad co 5 Feo sR 4 BRR 856
Review by Court of Appeals of modified judgment..................... 276
MOTION :
For substitution of party on appeal... 2... .. cece eee ee en eee eens 41, 395
For dismissal of appeal for failure to procure-order of substitution. ...42, 395
For order directing the entry of judgment............ ccc cece eee e eens 43
For order directing the entry of am order.......... cc cece eee ee ee ec eeene 44
For order vacating order not entered .............. cee e eee ania. 45

For a new trial when a preliminary to appeal........... sees eeeeees 45, 120
616 Inpex.

MOTION—(Continued): Page
To set aside judgment for irregularity or error in fact........++++e+eeees 6
To correct a mistake in a judgment..........-0..ceeeeceeee cece eee eeees q
To correct error in the taxation of Costs..........eeeeeeeeeeeereeceere 7, 496
To set aside ev parte Order... 1... ccc cece eee ee cece cece ee eeenerseeeeee 8
To vacate order made out of court upon notice..........6.eeeeeeere ees 8
Towpenr d elAUle, sei seesece vasaieies se Mawecs Re aw Seema Wen rwas sents 9
To set aside judgment for want of jurisdiction ...........0:.0eseeeeeeee 12
That a writ of certiorari issue............ cece cece ee eee cee cote ee eneee 13
For a stay of execution of judgment or order appealed from........-.. 82, 85
That security on appeal be dispensed with or limited.............- 91-93, 371
For the discharge of a levy on personal property ..........0eseeeeeeeeee 106
To suspend the lien of a judgment appealed from.... .........+eeeees 107
That appellant file a new undertaking. .............eeeseeceeee 110, 111, 393
To amend proceedings to take an appeal or stay execution...... 116, 119,

254, 872, 888, 407
To amend a notice of appeal ........... 0. cece cece eee ee erent eeeee 117, 119
To amend an undertaking. .......... cece cece eee eee e cece eens 118, 119, 120
For extension of time in which to file exceptions................2..006 129
For dismissal of appeal for failure to procure return................ 136, 266
For extension of time within which to make a case............0.0008 6 140
That cause be preferred on the calendar.............00.00 sews eeee 169, 260
For amendment of pleadings on appeal.............0..eeeeeeee 166-169, 437
To amend an order or record of the appellate court.................005- 170
TOvamM end O,CHSO ice o-cs.5s6 ek he ok NG «oe poe RE tees be genera e Das dseaiesnaGaeoe 171
For restitution after reversal, CtC........ ccc cece cece cece cece eeenee 194, 454
Bringing on appeal to Court of Appeals as a motion................0005 20
To restore a dismissed appeal......... 0... ce cece cece ener ee eeeeeeeeeeeee 262
To dismiss appeal for failure to serve a CaSC........... 0. eee eee eee 267, 325
POP @FUTHE? TETUTD oo vc eae des aeana soda asda ewan we whe Mees eee 268
To stay the filing of the remittitur....... 0.0... cc cece eee eee eens 297
To amend the remittitur.. 0.00... ccc cece ee eee nee tine Ba ate sa a ida RA 297
For re-argument in Court of Appeals....... 0... cece cece cece e eee ee cece 299
For dismissal of appeal to the General Term................0 ecco 821, 325
To put a cause on the calendar............ cc cece eee e ee tence eee nee 824
To Correct thé. CAlCNOALS d:c.0cccege wieeriwenveargedetas eaee aeyeiesenes 382
To strike a cause from the calendar.............cccc ec ececcceceaes 324, 875
For re-argument at General Term........... ccc cece cece eee eens 358, 360
To stay issuing of warrant in summary proceedings................. 425, 426
To stay proceedings against animals straying, etc.................. 426, 427
To compel justice to file return... ... 6... cece cece et cee eee eee eee 433
For:asfurther return vis.csig csces deccdisiesiowtays Seo is gen ses eon amentaideaneas 434
To transfer appeal to law calendar...........c. cece cece cece eee neeeneee 436
For a new trial, on the minutes..... 0... ccc cece eee ee ee ence eee ees 498
That exceptions be beard at General Term................ ccc eceeeeeaee 509
For new trial, at General Term... .. 10... cece cece cect eens teerene 512
For new trial, at Special Term. .......... ccc cece cece cece cece eee eees 519

(See New TRIAL.)
MUNICIPAL CORPORATIONS :

When required to give security on appeal............. ie acavaneecebsnssraneieeiae 91
Execution of undertakings by........... sees Wai duewaes Sidi eluie si eoiae . 91
InvEx. 617

MUNICIPAL COURT OF BUFFALO: Page
Judgments of, reviewed by appeal to Superior Court of Buffalo...... 29, 414
Procedure on the appeal the same as on appeal to County Court from

Justice's COUP caciseseoiss ae aaediavivernesubeanscdaw esi 29

Person not a party cannot appeal from judgment of...............6.-6- 35

Time within which an appeal must be taken from judgment of.......... 55

Payment of costs of action and fee for return.............. cece eens 73, 442

Requisites of note of issue on appeal... ... ccc eee cee cece cee eee eee 318
(See County Court.)

Costs on appeal from judgment of....... 0... cece eee eee eee eens 472

MUNICIPAL COURT OF THE CITY OF ROCHESTER :

Judgments of, reviewed by County Court of county of Monroe. ..... 81, 415
Practice on appeal the same as on appeal to County Court.............. 415

Costs of appeal same as on appeal to County Court from Justice’s Court.. 472
NEWLY-DISCOVERED EVIDENCE:

When a ground for granting a new trial......... eee cece ee oe 524-529
Must have been discovered since the trial. .......... ce eee eee eee eee 524
Inability to obtain it at the trial must be shown................- 524, 526
Must be material to the issues............ 0... cece eee ee eect eens 525
Must go to the merits and not merely to impeach................ 525, 527
Must not be cumulative...... 00... cece cen eee e eect eeeeeees 525, 528
Must be decisive of the case. ..........0. cc ace c eee ee ee eenes 525, 527
Names of witnesses must be Ziven......... cece cece eee e ee ee ee eee ee
Affidavits of newly discovered witnesses should be produced........ 528

Motion must be made at Special Term............. 0... e eee eee eee ee - 520

Motion must be based both upon affidavits and case.................-06- 524

Office of the case on motion for new trial........ cc eee eee eee eee 547

Decision of the motion rests in discretion of the court................60. 529

Moving party must pay costs of former trial............. cc eee ee enone 529

Motion costs only allowed, if aMy.......... ec eee eee ee ence ence e eee ennee 547

Order granting new trial for, not reviewable by Court of Appeals. ...... 234

Surrogate may grant new trial upon the ground of newly discovered evi-
ONCE oi en's onda Bie Saeed sae vate s su tancatanddatbocasa cea 398

Review of order of surrogate by Supreme Court...............cc00e eee 398

Special Term cannot grant new trial for, in a proceeding before surro-
Alls dorediscaewaren twas ene oe wR TSS AG Gs Se ees MHaRReN Ow eRENCaw.S 398

Order of County Court granting new trial for, not appealable............ 366

Order of City Court granting new trial, not reviewed by Common Pleas 412
NEW TRIAL :

Jurisdiction of Court of Appeals to review orders granting or refusing...
196, 197, 202, 233-235

Where the matter in controversy is less than $500........... 197, 202, 288
Where a controverted question of fact was involved and the trial was
by Gury iiss casas tieesade ups Uae ee cles ad 283, 273, 281, 296
Upon reversal of a judgment entered on decision of court or report of
Veleree s vxvis ic 24 ges ete acinkeeeedecwtaweww euesies eeaes ove we eae 278
Where the motion was on the ground that the evidence did not sus-
tain the: Verdicts.i:c-c0sscccccsaevew sejcee celeiuweads eevee eat eae 284

Where the motion was based on excessive damages..............55- 284
618 Invex.

NEW TRIAL—(Continued): Page
Where the motion was based on newly discovered evidence...... . » 284
Where the motion was based on misconduct of the jury...........+- 234
Where the motion is based on improper communication to jury....... 284
Where the motion was made at General Term..........2 0.00 eee sees 234
Where the order grants a new trial in a special proceeding.......... 34,

Stipulation for judgment absolute on appeal from order granting....
64, 233, 246

Risks attending an appeal from an order granting................+- 246
Court of Appeals may grant new trial without wholly reversing judg-
MEN bei: seine ses esse eee seo yess eves ceeeee es oa She soe ce meen 204

Jurisdiction of General Term to 1eview orders granting or refnsing. . .805, 308
Questions reviewed on appeal from order granting or re!..cing. . ..387-3°

When the General Term must order new trial on reversal......... 852-354

‘When new trial may be ordered on affirmance in part........... 350, 351
Review by Supreme Court of orders of inferior court granting or deny-

WMP is sae Sede se BE AEE MANAG @ couande Hig ed de ees 365, 366, 377, 378
Power of the surrogate to grant a new trial........... 20... eee eee eee 46, 308
Review of orders made by surrogate granting or refusing........ 46, 398, 500
Review by Common Pleas of orders of City Court granting new triai.....

402, 404, 412

Stipulation for judgment absolute............... eee eee eee eee 64, 404
In the appellate court, not authorized on appeal from a District Court.... 455
In the District Court, may be ordered on reversal by Common Pleas..... 461
In the County Court, on appeal from an inferior court.................. 443

Must be demanded in the notice of appeal... ....... ccc cece eee eee ee 421

Demand for new trial cannot be inserted by amendment............ 421

When the appellant may demand a new trial in the County Court.... 428

Respondent’s remedy where new trial is demanded in improper case. 436

Security required to perfect appeal for........ stig AMAL eer aai nay acew ore 423

Offers to compromise on appeal for new trial..............000 eee ee 430

Return on appeal for new trial... 0.0.6... cece cece eee een ee cae. 488

Note of issue and notice of trial... .......... oi bret pao weitere cnitinfereeatan'ate 438

Proceedings on new trial in the appellate court..... ............0.- 443

Judgment on the appeal for new trial......... 0c. cece eee ee 454

Costs on the appeal for a new trial... ... 6... cee ee eee 488
When the County Court may order new trial before a justice............ 441
When a motion for a new trial is indispensable to areview of the facts.45, 499

When all the issues were tried by a jury... ........ ce eee e eee ee eee 45, 337

Where surrogate has sent certain coutroverted questions of fact to a

GUIY ss ceeded bes 434545 Seer Cdde a Wea bRRee Eve L awe ag 46, 47, 500

Where issues or fact in an equity case have been sent to ajury....47, 500
When an appeal must be taken from the order granting, only...... ..... 48
When the appeal should be taken from both judgment and order........ 49
Motion for a new trial on the minutes of the presiding judge............ 498

Grounds upon which the motion may be made...................0. 498

Discretionary with the judge whether the motion will be entertained. 498

When the motion on the minutes is proper................0..00. 499-501

Where issues in an equity action have been sent to a jury..... ...... 499

Must be a verdict to authorize the MOLION...... 6... cece ee ee ee eee 501

Cannot be made on the ground of surprise........-....eeeceee ee OL
Inpex. 619

NEW TRIAL—(Continued): Page
Time at which the motion may be made. ....,.....0..0esceeee -. .. 501
Case not necessary: .acissxsuw ace seae eect ace edad sawed vide ince weees 501
Reference to notes of stenographer as part of the minutes.......... . 502
Grounds of motion must be stated. ........ 0... cece cece eee nee ee 502
Duty of the court to examine the questions on the merits........... 502
Decision of the Motion. ......6.. 00. c cece cece eee nets teen eee 502-509

Verdict contrary to evidence or against weight of evidence. . 502-504
Verdict contrary to instructions ... ..... ists Sih raha ta diate is seeee 505
Excessive or insufficient damages. ..........6 ce ece eee e eee eeees 505
Erroneous admission or exclusion of evidence sk ee a Aree cusaneies 506
Where specific questions have been submitted to jury... ....... 506
Erroneous rulings as to misjoinder of parties.................45 507
Where no exceptions were taken on the trial .......... +++ -507, 508
Terms imposed on granting the motion............6.6--. cece seen 508
Costs on motion on the minutes... 0.0.0... cece eee ee eee eee eee 508
Rehearing of the Motion. ........ 0.0... cee cece eee e eee eee ee anee -.. 509
Motion that exceptions be heard at General Term .................-.-.- 509
When the motion is authorized................ seduce Gals teaevadees 509, 511, 512
When and where the motion must be made ........... cece eee 510, 511
Decision of the motion...............2. miei ae Saeaseva aghast eee. O11
Entry of the. Orders scc00 asananncecasudeag ey esesseevest abu sa svete 511, 512
Revocation or modification of the order...... ..... ew eWeek eee 509, 512
Outline of proceedings subsequent to the order..... dsiaads4 eae 509, 510
Motion at General Term for a new trial...............666 6 cee eee 512-519
Where exceptions have been ordered heard at General Term......... 512
Where the trial was by the court or referee and interlocutory judg-
MENU GIVE CHEM MCU Gy ss 55 cccpensdx oS. a Gg dea ce ootsbvens Goonies ony a Seuunereaoanatateieies 513
Making, serving and settling a case.... 16... cece cece eee eee tenes 514
Obtaining a stay of proceedings.. 1.2.2.0... . cece eee eee eee eee ee 515
Noticing the motion for hearing........... 0. cece cece cee eee eens 516
Papers and points for the court and adverse party........ ace sete eit 516
Note: of iss sooo. uty sans uateord a yee ee ela asa See Paani 517
Practice on the argument... 2.0.0... cee ec cee eee teen een ee en ees 517
Principles governing the decision of the motion............... teas OLT
Costs allowed by statulé ccccccccwasseecdaieces sede ves dee sees tawes 518
Proceedings subsequent to decision............... ski A Ree aaeee aT 510
Motion at Special Term for a new trial ........... cc eee e ee eee eens 519-547
When the motion is authorized....... 0.0... cece cee eee eee eens 519
Grounds upon which the motion may be made...-......... se. - 520
Newly discovered evidence, when a ground for new trial......... 524-529
Surprise, when a ground for new trial... ........ 0. cece eee e eens 530-585
Improper interference with the jury is a ground for.... ........... 536
Communications between the court and jury...... Saisie s oe iat 537
Compelling agreement by jury. .......... 0c. cece eee eee setabivetdiseye 588
For disqualifications of a juror... 60.6... eee eee e cence eee ceeee 539
For misconduct of the jury............ .eeeee oe ewes pes Sia ce 540-548
For erroneous charge to the jury....... 0... ccc eee e ee eens  WeOROEt 543
For error in receiving or rejecting evidence ......... a tie SR Aeeyeaie 548
For error in granting or refusing 4 nonsuil. ............. te ceeeeee B44

When and at what term the motion must be made...... Bde s.2 aks 519-522
620 Inpex.

NEW TRIAL—(Continued): Page
The motion papers............cececececececeeecneotnseeeeeees 528, 524
When the motion may be made on affidavits............+000005 523

When the motion must be made on a case... ....2eeeeeeeee 528, 524
Affidavits of jurors not received to impeach their verdict........ 548

Notice of the motion........... 0... cece cece cece eee e eens 524

Terms upon which motion granted for newly discovered evidence.... 529
Costs on motion for new trial..... 0.0... cee ce eee ee eee renee 546, 547

In: ejéctment tics. ccna woue s chien de awncas aa. carck ete eeaties vee camer 544-546
Terms upon which a new trial may be claimed asa right... ... ... 544
Terms upon which second new trial may be granted in.............. 545
But one new trial as a matter of legal right ........ 0... cece eee e eee 545
Where the judgment was not rendered on trial of issue of fact....... 545
When the motion may be made in case of disability............-..66 546
When the statute does not apply ....... 0. . cece cece ee ce ee cece veces 546
Defenses upon new trial in ejectment......... ccc cee ee ee ee eee eee 546
Restitution may be ordered when new trial is granted...............005. 191

NEW YORK, CITY COURT OF:

Formerly the Marine Court....... 00.0 cceec cece eee rence eeeeneeee 29, 403
Justices, officers and attendants of the court......... 00. eee cree ance eens 29
Appointment of General Term. ......... 0... cece eee cere ee eee ene eeee 29
Number of justices sitting at General Term.......... 60. e eee e ee eeeeee 29
Concurrence necessary tO a AeCision.......: cece eee e eee e eee eee eee eae 29
Appellate jurisdiction... os eaceicieayere seeds needs weaileegeeceaee¥e 30

Appeals to the General Term from determinations of the same court. 30,
301, 402

Appeal governed by the general provisions as to appcals to a General
DOM sy cess vac: ae Sele des be eed eu ea Eee nei aoe wet teen 402
Jurisdiction of the General Term... ........... cose sence ee 302, 305, 311
Time within which the appeal must be taken ..................- 54, 313
Requirements as to contents and filing of note of issue.............. 319
Rule as to filing case and exceptions. .............06 ceeceeeeces 152, 153
Papers upon which the appeal will be heard...... ..........000000 132
Appeal book must be printed............ ESAS ERAN Rae teu, Seer 182
Contents of the appeal DOOK.. 2.2. c ccc ccc cee cc eee eee e eens 182
Service of printed copies of appeal papers............00.. 0 ccc enue 320
Effect of failure to serve printed copies...........0.. cece cues ee eees 325
The General Term calendar......... 2.0.0... cece eee eee e cee e ees 823
Delivery of papers to the clerk on the hearing.............0..e0e0e 330
Time allowed counsel on the argument of the appeal................ 832

(See GENERAL TERM.)

Submission of controversy without action.............. cc cece ee ee eee 346-349
Appeal from City Court to Court of Common Pleas................55 402-413

(See Common PEs, Court oF.)
Transmission of papers to Common Pleas in appeal from City Court.. 185
Requisites of the return to the Common Pleas..................00008 184
Resettlement of the case by the City Court on appeal.,............. 172
Judgment absolute by Common Pleas on affirmance of order for new
trial.......-.. peacgaies paused’ sia ose> cain ade a's in's Gola Reatalchvats 190, 412
Invex. 621

NEW YORK, CITY COURT OF—(Continucd) : Page
Judgment of Common Pleas remitted to City Court to be enforced.131,
412, 413
Allowance of an appeal to Court of Appeals ia actions brought in City
Court ........... ddd anethes Aaraelbees Suen esa a ataice shad AMIS 208
No appeal to Court of Appeals from judgment of City Court on
TOEMUUU a e2 ti 254 sis Apaaa Wee es Gs SER Goa Clay comienste 200
Transmission to Court of Appeals of the judgment, etc. of Common
PIAS senior casigew: Sipe sidiawa setae iae sakes eens ead 181, 135
Judgment or order of Court of Appeals remitted to City Court....... 190
Costs on appeal in the City Court....... 0.0... cece cece eect ee ee eee 468, 497
NEXT OF KIN:
When entitled to appeal from decree of surrogate... .....-...-.eeeeeeeee 36
Must be substituted before the hearing of the appeal.................006 37
When to be made respondent............2.. ce cece cece cee e een eeeees 40
NONSUIT :
Review of errors in granting or denying a nonsuit............ .....0. 185-188
Exception to a nonsuit may be heard in first instance at General Term.... 511
Cannot be reviewed by motion on the minutes fora new trial............ 501
May be reviewed by motion at Special Term for new trial......... ..... 544
NOTE OF ISSUE:
Not used on appeal to Court of Appeals. ............ ce eceeec ec ee ee eeee 259
On appeal to General Term. ......... 0. cee cece cece e ee eee eens 317, 319
On appeal to Supreme Court from inferior court................ ... 374, 396
On appeal to the Court of Common Pleas ..................22 cee 409, 460
On appeal to County Court........ 0... ccc cece cence cece ee eeee cee 438
NOTICE :
Of entry of judgment to limit time to appeal............. 2.0... e cae 56
Of appeal ...cesc sangyeuineauicnveneiss 62, 245, 314, 368, 384, 406, 420, 456, 464
Of filing undertaking on appeal............ 0.0... cece eee eee eee 99, 253, 425
Of exception to sureties .....-..... 0.2 eee ee eee cece eee 100, 264, 387, 429
Of justification. 6.0.02... .ccceceee ce eeeeeeeee caveeeseneeeeeuees 101, 430
Of allowance of sureties. ...... 0.0... ccc ee eee cece eect eee eenenees 108, 480
Of exception to findings of the court or of a referce........ ........220. 127
Of settlement of a Ca8€ ess. cvsweaa cess oh Coens e eee ed ee be be ead eee -. 149
Of the day upon which a preferred cause will be moved................. 159
Of argument of appeal.......... ,. .259, 270, 317, 319, 375, 396, 409, 488, 459
Of affirmance on default......... 0.66.66 cece ce cece ee eee cena 272, 273
To appellant to file return... .. 0... ..... 6 cece cece ee cee cence eee 409, 457
Of acceptance of offer of judgment. ......... 20... 0. cece eee ee eee 430, 431
Of trial in County Court................085 Wwialsieie'els s'earielems 6 se sone Be 438
Of taxation or retaxation Of COStS....... 0... cee eect cece ee eee ee eeeees 494
NOTICE OF APPEAL :
Requisites of the notice. . 6.66: sccseseeee sera ca se ceedseesaceees 62, 245, 384
Need not state the grounds of the appeal....... 0.0.0... cece eee eee eee 62
Must state grounds of an appeal from award of Board of Claims....... 68, 245

Should be signed by attorney of record, or attorney substituted....... 62, 420
622 Inprx

NOTICE OF APPEAL—(Continued); Page
Signed ‘“ of counsel” irregular.......... Sassen agus RGR etait NREL wa Sate ees 62
From Surrogate’s Court..........ccccececccesceecenseee eeeees ....-68, 384
From a justice’s Court....... 0.0... cece cece cence cere ceeseees 68, 420, 421
Specifying interlocutory judgment or intermediate order...... 62, 64, 245, 406
Stipulation for judgment absolute on appeal from order granting a new

TAL a siccec. Aciuairs saa pains Pee Ghee eheuaeen eaare ed een oe 64, 245
Upon whom served...........ccc cee e eee eeeeeee 64, 65, 66, 247, 314, 368, 406
OW SOPVE i6 ocsie-s 2 sista er 2 yee oo Bde oe ee ea 66, 67, 68, 369, 384, 421, 456, 464
Curing defects in the service of the notice..... ........ 65, 116, 254, 372, 388
When the service of the notice perfects the appeal........... faerie 69, 70, 392
Amendment of the notice...........2.0.0 0 ce ce ee ee eee eee 59, 60, 117, 118
Certified copy of, must be returned on appeal. pstieg ae eataxraaasiaite 134, 135, 254
With: whom Dle@ice cave xeeas cg ce pene lvedelseen's saaiag, Mendgueesiene, 247, 248
When service of the notice stays execution. ... 0.0... cece sewer ee eee 251
Service of affidavit showing right of person not a party to appeal........ 384

OPINION:

Of the court below, a part of the papers on appeal.............-- 129, 131-134
Not referred to by Court of Appeals to, ascertain ground of reversal. .278, 281
ORDER :
When reviewable only by appeal.........c..ecce eee e eee eee eee eee 3, 4
Order made by one judge cannot be reviewed on motion by another...... 4
Ex parte orders not appealable. ...... 2... eee eee cece cet ete ence eeeeees 8
Review or orders made out of court upon notice...............00 eee ee 8
Made upon default not appealable........ 0. cee cece eee cee eee een eee 9
Relief from order void for want of jurisdiction or for frand.......... 11, 12
Waiver of right to appeal from.... 2... c cece cece eee e rene ee ee eee 19-22
In supplementary proceedings, how reviewed... .......eseeeeee coeeee 8
Right of a person not a party to appeal from................eeee eee eee 34
When person not a party must be made respondent..................265 39
To bring in or substitute parties. ..... 0 62... eee cee cece eee teen ee 41
Dismissing appeal for failure to procure substitution ................... 42
Directing the entry of judgment by adverse party......... Sieeevsvaky vse 43
Compelling the entry of an order...... 1... cece eee cece ee ee cence eens 44
When appeal should be taken from an order only........... see eeeeeee 48
When appeal should be from both judgment and order...............- 49
Mode of reviewing orders in special proceedings...........-. 0... cece eee 51
‘Time within which an appeal must be taken from an order............. 53-62
When security is required to perfect an appeal from .... .......... e000 68
When security not required to perfcct appeal from.................2008. 69
To stay execution on appeal ...... ccc cece ee cece ee ne neces 82, 85, 425, 426
Dispensing with, or limiting security on appeal.............+...-. 91-93, 253
Discharging levy upon personal property .......... Oe re eee 106
Suspending lien of a judgment..........ssseee seen eee e ree cene cere eeen 107
Requiring appellant to file new undertaking,.......-.....eeeseeee eens 110
Extending time to make a case... 1... cee cece cece cece eect et eee eee e ees 140
Preferring a cause on the calendar. ......... cece eee ee eee tees enees 159, 160
Amendment of orders on appeal. ...... 00... cece cece e ee cone eee ee eeee 170
On decision of appeal ..... cece ect cece ee teen ceneeeeees Risla:nie s winatay 189
InpEx. pot, “by, 623

ORDER—(Continued) : Page
Intermediate order reviewable on appeal from final judgment...... eee’ 211
Jurisdiction of the Court of Appeals ou appeal from orders.............. 214

Orders which affect a substantial right... 0.0.0... ce. ec eee cece eneee 215
Orders which do not affect a substantial right..............00.0-00e 220
Discretionary orders not reviewable. ..........ceceeeeeesee ees eees 221
Determining action and preventing final judgment................., 2382
Granting or refusing a new trial. ......... 0 ccc eee cece cece cece eee 233
Striking out a pleading or part of a pleading.................2..+-+ 235
Deciding an interlocutory application or practice question..... ... » 236
Determining constitutionality of a statute........... see e cere eeeeee 236
Made on summary application after judgment.............eeseeeee 237
Final orders in special proceedings. .............ces eee eee ee eeceees 237
Made conclusive and non-appealable by statute............e.eees eee 239

Allowing an appeal to the Court of Appeals........ cece eee ee renee 241

Vacating order dismissing appeal...........02 ceceeee eee eee nee e ees 262-264

Dismissing appeal for failure to file return............ cece cece eee eee 266

Dismissing appeal for failure to serve case....... Kgiae'e toy vgseera Wiel Few Base 267

Jurisdiction of General Term on appeal from orders........ .......-..- 304
Discretionary ordersics eis «6's vos oh esiee eaeravlbesaenneewes eeate dyes ee 306
Granting, refusing, continuing or vacating provisional remedy....... 307
Granting or refusing a new trial.. ...... ee ea 308
Involving the Merits.< 66 ccsac ceca wwnadseermed cg s Faces eee wees 308
Affecting a substantial right... 0.0... .. cc ccc ccc cece ee eee eee eees 310
Determining action and preventing judgment.................0000. 310
Determining the unconstitutionality of a statute.............00ee eee 310
Made on summary application after judgment..................008- 311
Made: Olt Of COUP: <i: sacins Gra ocd See ae baad ovis tee Mele eve serene Rael 311
Made in special proceedings...........-. cece cece cece ee tcceteeee 312

Questions reviewable by General Term on appeal from order............ 337

Of the General Term on appeal...... .... cece cece cence cece etree eens 350

Review of orders by Supreme Court on appeal from inferior court....... 364
Appeal from orders made in actions. ...... 0.0 cece eee ec eee eens 364
Affecting a substantial right 0... 06... cece ccc cece ee eee e een eee 365
Discretionary orders........... 0... e eee eee eee pe desantwensuniseanishrarasoonsenace 365
Orders made in a special proceeding. ............ 0... cece ee eee eee ee 366

Determining appeal to Supreme Court from inferior court............... 379

Review of orders made iu proceedings before a surrogate... ............. 381

Revicw of orders of the City Court on appeal to Common Pleas......... 404

Review of orders of the City Court of Yonkers,............55 esse eae 463

PARTIES :

By whom an appeal may be taken.......-. 0... cece cece cee erence eee 31, 382
Party ageriovedscs.e ses es seheast asa ta satis t 8d seers eed Saude 31
Party who has ceased to have an interest... .........ce eee e cece eee 32
BAMKS UP c5.c:0:0.5 scace Sod aeerar ape ba Maetian ieee ye sees Res are Gy eae Ap amedernos 33
"WAlG: yoncisnafccisaws Seaiitauiedinser Peduanedhaanes Di enbarqeewnanmeaiees 33
Devisees or legatees.........cccccc reece cece neceneeeeeecesees 4s BOOB?
TT PUASUGG wanes ioe d dhecig d codeiauees etiwesia Wats Se cig aG o cele reves es leeds settee sett 338, 35
Stranger fo the TecOrd sca cess cce coearea eae ee Sw eeensvey sucess 33

AOI Yi. es epestehicae key sea dededousmd ed darndese Saree. BE Mele 34
624 Inpex.

PARTIES—(Continued) : Page
Referee sss s3as0a seine cae's Maa wards Goudie eeeeesaee dieeiern eriaiceie be oe 34
Policy-holder.... .. PEGA cosuNens araceieiar qievesareiteie liaise ie sata iieteraghieriee 34
Creditor...... wiepsiesaldisia G dyre'ene dil die aierea Sin wate wwe mee eee wei 84, 36, 382
BUTE by chic cts. eit dave crane Goa pln deatcras Seiwk Swear sees . 34
One of several parties may appeal...........c.seese cere eeneeeeceee 34
When a person not a party may appeal............s..ceeeeeeeere 33, 35
POOF Persons sspensseinrsncax Sieosswoers skies via alain ates slesa eee aeacuaesiets 38
Who should be made parties on appeal. .............e cece ec eeeceree eee 39

On appeal from Surrogate’s Court............0000% eeeaseees 39, 382, 383
Proceedings to bring in or substitute parties.............0.2eeeeeeees 41, 395
Remedy for failure to procure substitution........2...22ecesceeeeeeeree 42
Affidavit on appeal by person not a party..........c cece cece cree ener ees 384
Designation of parties in the appeal papers...........6..eee eer eeees 38, 383

PEOPLE :

No security required on appeal by the people............ ayerd oes, sleia-exaiara 69, 91
Preference of appeals in which the people are parties............+.0+005 156

PLEADINGS :

Review by Court of Appeals of orders on motion to strike out....... 218, 235

Of orders to make more definite and certain.............ceeeeeee eee 220

Of order to strike out irrelevant matter .... ......cece esse ee eeees 220

Of order denying leave to serve supplemental answer.............-- 226

Of order refusing to entend time to demur.................2000eeeee 226

Of order denying motion to compel election between causes of action. 226

Of order granting or denying bill of particulars .................... 227

No appeal lies from order refusing judgment upon a pleading as frivolous 306

Review by General Term of orders striking out or refusing to strike out.. 309

Review by General Term of orders granting or refusing leave to amend.. 309

Disregard of defects in pleadings on appeal..............20e. secre 164, 165

Amendment of pleadings on appeal. ...... 6... cece eee eee eee 165, 166, 437
Review of orders of inferior courts amending or refusing leave to amend.

365, 449

Objections to pleadings, not taken below, not reviewed by County Court. 447

POINTS :

How prepared vec iss cages oceans cease eeed ceases 158, 270, 316, 378, 442, 460
Printing ic sckaiceen doa Saw ee G4 said teak ed ccs eee 155, 270, 316, 378, 410

PRACTICE :

Review of determinations of questions of practice ........... ..... 222, 223

PREFERRED CAUSES :

Order in which causes will be preferred............ccceeeeeneeeeees 156-159
Proceedings to obtain a preference. ....... cc cece eect eee eee eeeeees 159, 160
PRESUMPTIONS :
That the case contains all the evidence........... ccc eee eee eee eens 143
In favor of a judgment or order appealed from. ......-..sesseeerseeeees 173
In support of findings...........ccc cece cere eee ee tenes ee nen ee eeees 174
As to the grounds of reversal. ........ cece cece eee ee ee eter ereeeeeens 278
InpEx. 625

PROBATE :
Who may appea}’from surrogate’s decree on application for............. 33
Who are necessary parties to an appeal from a decree for..........-.-6+ 40
Preference of probate cases on the calendar...........0. 0s sees ee eens 159
Jury trial on reversal or modification of decree.......... eee eee ee eeeee 400
When case should be remitted to surrogate on reversal........cecseeeeee 401

PROHIBITION :

Security to stay execution appeal from order...........ecseeeeeeeeesers 87
Preference of cause On appeal.......cessecces cece enccercceneeesstescee 158
Final order in proceedings instituted by writ reviewable by appeal only..
Execution of void judgment cannot be restrained by.............05 sees Ik
Denial of the writ discretionary....... 0... cc cece cece eee cen e nee 228
Writ cannot be demanded as a legal right........... 0. cece cece eee nee 228
Review by Court of Appeals of order granting the WYit...........e++ee. 228

(See SPECIAL PROCEEDINGS.)

QUESTIONS OF FACT:

Mode of presenting questions of fact for revieW......00 weeceecseeeeees 120
After the trial of all the issues by a jury....... cc. ce cece ee en eee 45, 120
After the trial of specific questions of fact by a jury............. 47, 120
Upon a challenge to @ juror ....... 0 cece cece cece e cece ee en eee 122
After a jury trial of an issue of fact in a special proceeding...... 47, 122
After a trial by the court or a referee... 11... cece ee eee eee eee eee 122
After a trial before a surrogate 1.1... . cece eee ee eee eee e nent eee eees 123
After a trial before a justice of the peacce......... 6... ese e eee eee ee 123

When a motion for a new trial is indispensable to a review of........... 45

Review of, by the Court of Appeals... .... ccc eee eee cece cette eens 278-285
Where the questions arise upon conflicting evidence.... .........4. 278
Where the trial was by the court or by a referee..............-.. 278-281
Where the trial was by @ jury... cc. cece cece eee cece eee eens 238, 281-283
Where the trial was before a surrogate... . 0... 60. cece eee cece neces 283
Upon appeal from an order....... cece cece cette ee ence eee 288, 284
How far the court will be controlled by the findings below.......... 287
Principles governing review of inconsistent findings of fact.......... 286
Review of facts found without evidence...... 1.0... . eee eee eee eee 289
Review of refusals to find upon questions of fact............... «6. 291

Review of, on appeal to the general term of the same court.......... 832, 342
Where the appeal is from a judgment entered on a report or decision

: 334, 342
Where the appeal is from a judgment entered on a verdict. .835, 343, 499
‘Where the appeal is from an interlocutory judgment............... 336
On appeal from an order made upon a motion fora new trial.45, 120, 387
On appeal from orders generally ....... 0 . 6 ec ec ee cece eee ee renee 839

Review of, cn appeal to Supreme Court from an inferior court.......... 377

Review of, on appeal to Supreme Court from Surrogate’s Court......... £98

Review of, on appeal to Common Pleas from the City Court............ 412

Review of, on appeal to the County Court..........cceeeee erence ences 448

Cannot be considered on motion at General Term for a new trial........ 517

Presumptions in support of findings ON. ......... cece eee eee e cence eens 174
15
626 Inpex,

QUESTIONS OF LAW. (See ExcErtion.)

Mode of presenting questions of law for review....... Sualasacaee es seeeee 124
Usually presented by exceptions in a case, or bill of exceptions......... 124
When reviewed in the absence of exception...........000eeeeeeeees 125, 276
Refusal to find upon a question of fact may present a question of law... 124
Finding of fact without evidence presents a question of law......... 124, 128
Review of, by the Court of Appeals.... ........ceeeee cess ence 278, 277, 285
Review of, by the General Term on appeal from the same court........

832, 836, 337, 341
Review of, upon appeal to Supreme Court from inferior court.......... 376
Review of, upon appeal from a Surrogate’s Court...........+ aiarasaeae 398
Review of, by Common Pleas on appeal from City Court.............-- 412

Review of, by County Court on appeal from judgment of justice....445, 447
RE-ARGUMENT :

Where the judges of the appellate court fail to concur... ............ 28, 29
Motion for re-argument in the Court of Appeals...........-.e.0000% 299, 300
Motion for re-argument at the General Term...........e..eeeeeeeeee 358-360
Motion for re-argument on the question of restitution..............00685 461
Court of Appeals will not review order denying. ..............eeeseeeee 227
RECEIVER :
Restraining interference with property in possession of..........-+..e00% 227
Orders granting or denying leave to sue, not reviewable by Court of
AD PCAs: wiisisiias Garemisomaed opakanattanim heaven deamasieinameeege ten 227
Preference of Appeals to which receiver is a party.........0ecee eee wees 157
REFERENCE :
Review by Court of Appeals of orders on motion for....... 219, 220, 223, 224
Waiver of right to appeal from order Of. ...... 0.0... ee eee e ee ere eee eee 22
Appeal by referee from order depriving him of fees............-.... 34, 219
Supreme Court will not review order referring a referable action......... 366
By County Court on appeal....... cc. cece cece cece cece tence erences 444
RELEASE :
Of interest in a suit terminates right to appeal.............eeeeee wees 32
REMITTITUR :
From the Court of Appeals. i i.issssscsee sew eadevevaaecdeeedeeerieecees 296
FOVM-And CONDI s <e saccc coma aeeeiseNeRs dha dwdd Paton se kECR EAs 296
Staying the filing of the remittitur..... 0... 6. cece eee eee enone 297
Amending the remittitur... 0.0.0.0... cece ee eee eee ence eens 297
Entry of judgment on the remittitur............ 00. cece eee ee eee 298
REPLEVIN :
Undertaking to stay execution of judgment in.........-.. eee eee eee TT, 428
When party entitled to demand new trial of action in County Court..... 428
Review in County Court of affidavits on which requisition issued........ 448
Amount in controversy, how determined. .......... cece eee e cece e eee e eee 202
Costs of course to the prevailing party on appeal......... eee ee eee eens 468
Modification of judgment in, by the General Term.......... Saseeeeasese 355
RE-SALE:

Review by Court of Appeals of orders made on motion for.............. 229
RESTITUTION : : Page
Upon appeals BEmerAY . og eeecv cere cece cece ceeeenenecen eee venees 191
May be made or compelled upon reversal or modification. ittineiiewinsien, LOL
Rests in discretion OF CHE COUT ssecccaseseseesreae Seavsinyarsveinpdie a cep eiploreaiolove-gene-acae 191
Where property Has NECNiSOld sie oo ccd cceeurvieinh ons veauwaenaamage nee 191
Where rights of third parties have intervened.............cceseeeeeees 191
Where an attachment has been executed pending appeal................ 192
In ejectment, where right has expired pending appeal. ...............4. 192
Remedy is cumullativesc. cicssccsace ses svecacedeensneeswecaeeeavesnees 192
May be awarded on reversal, etc., of decree of surrogate.... ....... 191, 400
May be ordered where new trial is granted.........65 cee cece ener eee c ens 191
May be ordered on review by certiorari. ..... 0... cece eee cece eee eee 191
May be ordered on appeal from justice’s judgment. ..................192, 454
In summary proceedings. ...... 6... cece ec ee ee cee eee eet e tenet eeees 193
Proceedings to obtain restitution. ...........0esceeeeeenees 194, 195, 454, 461

RETURN :

On appeal to the Court of Appeals........... ceecec cess cece ene tee 129, 185
Papers composing the return............ eee eee e eee 129, 185, 254, 255
Duty. of appellant to cause return to be made and filed...... 135, 136, 255
Dismissal of the appeal for failure of appellant to procure return.136, 266
Return must be certified by clerk of court below... secs vee cues 186, 255
Must be filed by clerk of appellate court......... 0... cece ee eee eee 135
Fees for making, certifying and filing return............2...04. 256, 493
Procuring a further return. ......... ccc eee scene eee eee ee seen en enes 268
Motion to amend or correct the return....... cocci cece eee eee eee 268

On appeal to the Supreme Court from an inferior court...............4- 135
Papers composing the return............ cece eee eee seen 131, 135, 372
Transmission to the appellate COUTt........... cece e eee ee ee ee eee 135, 372

On appeal to the Common Pleas from the City Court........... 133, 185, 408
Papers composing the return. 2.2.0.0... 2. ee eee eee eee eee 138, 1385, 408
Transmission to the appellate court...........c ccc eee eee eee e eee 135, 408
Dismissal of appeal for failure to file the return................ 186, 409
May be compelled by attachment......... 0... cece ccc eee nee 136, 409
Cause not put on calendar until return has been on file eight days... 409

On appeal to Common Pleas from a District Court...... ........-.- 184, 457
Payment of fee for making return... 0.2... ccc cee eee eee ee eee 456
Contents of the return. ....... 0c. ccc cece nero tenon nese eseeneeens 457
Dismissal of appeal for failure to procure return.... ......2.05 eee 457
Attachment to compel return. ........ 0... ccc cece tenes 457
Substitute for a return where the justice is dead, etc..........-- 457, 458

On appeal from the City Court of Yonkers............ ce. eee cece eee: 465

On appeal to the County Court....... 0... cece eee eee eee cn eeee 184, 135, 433
Contents of the returns. ccccsasonataa eee er eek oe tease ves Gaemanasa 433
Compelling return or further return............ eect ee eee 433, 4384
Substitute for return where the justice is dead, etc............4--.- 434
Aiding or contradicting the return. ......... 0c cece eee cece eee 435
Payment of fees for making return... ... 0... cece eee eee eee 422

Amendment of the return..... je aliny Wie gatierece exo Oe ldo snmmnanstetann te 2s 165

REVIVOR:

Review of order reviving am action... 0... cece eee eee e er ee eneee 220
628 InpEx.

REVERSAL . Page

Power of an appellate court to reverse wholly or in part. ...189, 295, 350,
400, 412, 450, 454

Restitution upon reversal... .... 0... cece cece ence cence eee cee eee tees 191, 380
No appeal from judgment of, where a new trial is ordered.........-+..- 48
Judgment of, must be entered before appealing from the order.......... 49
Error must be affirmatively shown to justify a reversal........++-.se+0- 285
When the entire judgment must be reversed... ....0.eeeessecenecereeers 295
When a new trial must be ordered on reversal. .........0+s++eeeeeee 852, 353

When General Term may render judgment absolute on reversal......... 353
Inserting grounds of reversal in the order of the General Term. .278, 281, 352

Presumptions as to the ground of reversal...... ....-ee-eeeeee noes eres BTS
By default not allowed on appeal to Court of Appeals....... Sie seces 272
By default not allowed on appeal to General Term ..........e-eeeeeeee 830
ROCHESTER :
Review of judgments of Municipal Court Of.........cseeeeeeeeeeeee 81, 415
RULES OF PRACTICE:
How far binding upon the courts..........645 eealelea Beisiis slates sasislecsiers 222
SECURITY. (See UNDERTAKING.)
To perfect an appeal ......... cece cece cece cree ence eee c eee eeneenees 68
When security is required ...... 0c. cece e cece eter ee eeeee <pioeamne 68
When security is not required... .... 0. cece cece eee ence eee eee 69, 91
Appeal not perfected until security is given..........e sees ee eee eens 71
Requisites of the security given to perfect an appeal......... z Siena G1-75
To stay execution on appeal ...... sci e cece cence eee eee eee n ee eeeeenees 75
(See Stay or ExEcurION.)
Waiver of security... ... ccc ccc cece cece eee e teen eee tte neeeeeenees 89
Deposit in lieu of undertaking........ sis VevenesG chevScaeceie 4 aoe Acetate areas sia 89
Dispensing with or limiting security..........26. cece cence eee ee ees 91-93
Compelling appellant to furnish further or other security................ 110
SETTLEMENT :
Of case and exceptions ...... cece eee cc ence en cece eeeeenee veeees 149-152
(See Case.)
SET-OFF :
Of damages against COStS....... cece eee e etn ence tence eee en teen eeeeeee 453
SPECIAL PROCEEDINGS :
Appeal the proper remedy for review of final orders in...............005 4
Final order in prohibition reviewed only by appeal................. 3
Appeal lies from final order in summary proceedings.............65 4
From final order adjudging a party guilty of contempt.............. 4
From order in supplementary proceedings in County Court........ 5, 68
From orders in proceedings by habeas corpusS.............0eeeeeeee 5
From awards by Board of Claims 2.2.0.0... .. cc cece cece eee ee ences 5
From order granting peremptory writ of mandamus................ 5
To review appraisal and report of commissioners in proceedings to

take lands: ae sacs wipes os ce etnies. ce eoneweeaw one detaus souuae 5
To review determination of drainage commissioners..............66 5
InveEx. 629

SPECIAL PROCEEDINGS—(Continued): Page
Waiver of appeal from determinations of commissioners of appraisal..... 21
Party aggrieved by order in supplementary proceedings.... ............ 32
Mode of taking appeal from determinations in special proceedings,...... 51

TDIMANAAMUS paws ouesns sa'siee genes soie's Oe ods pais Fe see wanlamavemerus $i
In arbitrations ..... WivkeieW Gaile isa ves ee Phas bees Godse Neetu gee 82
Tn certionarl wcssccosewa ie ye sae vies ess sa5d de sien aeleeaineseereuwes 52
In proceedings against estrayS....... ccc eee eee eee erence eens 52, 417
In summary proceedingS...........ccc ccc cere ee eeeesscnsee ee 52, 417
In supplementary proceedings.......... cscs cess ee eee eer eeeeeenens 8
In proceedings under General Assignment Act.............0eeee eee 53
Time within which the appeal must be taken........... cece ee eee eee ee 55
Stay of execution on appeal from orders in special proceedings.85, 370, 425, 426
In habeas: Corpus scas esta stay Seca cant nusis: esos wate ot ete dsnaeuaiats 85
In Mandamuses svecdascodsge coke sess ns sets atesdeu Gow sbusioeg caues 87
In probivitionivcs tac s se veax ceed ecan eine aceadewe ewe ree eeseees oe 87
In summary proceedings...............000% LA ye Gays alse: eesies Hsie 85, 425
An anbitration vcs sie ccs eos sees 23 eek dese easardesenene, ERe ae eee 88
In proceedings against eStrayS..... 6. cee ec cee cece ee eee tener ee tees 426

Case not required on appeal from order confirming report of arbitrators.. 189
Preference of appeals where writ of mandamus or prohibition has issued. 158

Restitution on review by certiorari... 00... cece eee cee eens 191

When Court of Appeals may or may not review orders in..... ......... 237
Order must beefing issacdscaes-enc8 oe ese nwa tet gouse wai es bday 237
Order must affect a substantial eon. die SEER ae: Se Yk eee Sees 237
Orders refusing to punish for contempt..................6- 218, 220, 229
Orders adjudging party guilty of contempt, etc.................0.08. 238
Order granting writ of probibition................ Rie Sunnie Ret aid 228
Order granting writ of mandamus. ......... 0... cece eee cence 22
Order quashing common law certiorari. ..... 20.0... ce cece eee eee eee 228
Order of reference in certiorari to review assessment................ 238
Order granting new trial of the special proceeding................ 238
Order vacating assessment for local improvement, etc............... 238
Order reviving special proceeding............ cee ee eee eee eee e ee . 238
Orders affirming or vacating reports of commissioners of appraisal... 239

Review by General Term of orders in special proceedings. ............... 812

Review by Supreme Court of orders of inferior court in special proceedings. 366
Review by Common Pleas of order of inferior court in summary proceed-

INGS i aseuee eee sy eooe ede te 4 eeed sed Heese eae ewettewend-s ye 405, 455
Review by Supreme Court of orders of Surrogate’s Courtin.............. 381
(See SURROGATE’s COURT.)
Review by County Court of orders of inferior court in............. 20. 417
(See Counry Court.)
Costs on reversal of order made in summary proceedings............ 274, 475
Costs on reversal of order affirming report of commissioners of appraisal. 473
Costs of appeals in special proceedings, when discretionary............. 475
Amount of costs taxable on appeal from orders in... ........ 00 eee ee ee eee 487

SPECIFIC PEREORMANCE:
Stay of execution pending appeal from judgment in action for........... %9
630 Inpex.

STAY OF EXECUTION: Page
When the service of a notice of appeal stays execution.......+++++++ 75, 91
Where the appeal is taken by the people or a State officer, etc....... 91
‘Where the appeal is taken by a municipal corporation. ...........++- 91
‘Where the appeal is taken by receiver of a bank........++.++eseeees 92
When the security to stay execution may be dispensed with or limited... 92
On appeal by an executor, administrator, trustee, etc...........+.-- 92
Application for order limiting or dispensing with security.........-. 92
Limiting the aggregate amount of security..........0ee sees cence eee 93
Waiver of security required to stay execution on appeal.........-...+-+ 89
Deposit in lieu of an undertaking... .. 0... ccc e eee ec eee ener eeeee 89, 90
On appeal to the Court of Appeals........ 0c. cece eee seen eee eee 75-80, 251
From a judgment or order for the payment of money..........--+++ 75

From a judgment or order for payment of money in installments.... 76
From a judgment or order affirming judgment or order for payment

OPTION CY.sxivics. ayavars Srscinia: -ovaiaca lose ‘ocaumya.ca-suate Guasenaracetaia> “acacia Siatsveusiaieua 76
From judgment for deficiency in foreclosure...........--e.eeee 76, 78
From judgment requiring payment in the alternative............... 76
From judgment requiring payment out of a fund in court........... 76
From judgment for assignment or delivery of a document or per-

SONA PLOPETbY siiakiss.os Saw wit eae eee tie e wena eae mnemenelus 7
From judgment for recovery of a chattel..........6. ceeeeeeeeeeee 17
From judgment for payment of money in hands of receiver......... 7
From judgment or order directing execution of an instrument...... 17
From judgment directing conveyance of lands to a receiver......... 7
From judgment entitling respondent to possession of lands ... ..... 78
From judgment or order directing sale or delivery of possession of

TANS ccicgeu een uiegainoste paises eee Sule Geo wie sae atrig le waste wa 78
From judgment for forclosure and sale of real property mortgaged. .

76, 78, 79
From judgment restraining further use of real property ............ 78
From judgment for specific performance of contract for sale of lands. 79
From orders made in special proceedings. .............0 eee ee ee ee 85-88

When an order is necessary to stay execution pending the appeal.79, 80
Proceedings to obtain an order for a stay pending the appeal..... 79. 80
When the execution is stayed by the service of the notice of appeal.91, 251

Nature of the security required to stay execution..............e ease 251
Form and contents of an undertaking given to stay execution....... 252
Filing the undertaking and serving a case............. eee ee eee 98, 253
Obtaining an order limiting or dispensing with security............ 253
Curing defects in proceedings to stay execution................ 116, 254
Effect of a perfected appeal and stay of execution thereon........... 104
Where the appeal is from a judgment restraining the appellant.. 105
Continuance of: the stay. scss asa an oseieons sc oraeesawa seen 106
Discharge of levy upon personal property..............0005 106, 107
Exception to suretics and justification and allowance of sureties..... 100
On appeal to the Supreme Court from an inferior court ............. 80, 369
On appeal from a judgment... .... 0... ccc cece cece cence ene e eens 80
On appeal from an Order... ... cece cece eee cere neat eee eeeees 81, 370
Limiting or dispensing with security... 00... ccc cee e cence ee eeeees 371

Curing defects in proceedings to obtain a Stay... .ccceceecceee eee 372
Inpex. 681

STAY OF EXECUTION—(Continued): Page
On appeal to the General Term of the same court....... .....eeeeee 81, 314
By giving:an undertaking. 5 ou. sccwcencaessac teed eee sense ewinn a1

By obtaining an order for a stay........ cece eee ee ee eee e nee wee 82
Motion for an order staying execution pending the appeal........ 82, 84

On appeals from orders under the General Banking Act............. 84

On appeals from orders made in special proceedings. .............6- 85

On appeal to the Supreme Court from a Surrogate’s Court.............. 388
Of decree for payment, etc., of money or delivery of property...... 688

Of order granting leave to issue execution. ..... . 6. cece weer eee eee 389

Of decree or order directing commitment.............. 00. esse eens 390
When an appeal does not operate as a stay... 26... eee eee eee ee ee 391
When a perfected appeal effects a stay........ giants eeu woee is ebe'ad 392
Curing defects in proceedings to obtain a stay............ ee eee 116, 393
Motion by respondent for increase of security.................0005- 893
Waiver'of security: scsneccwsece spss ce eee os 545 80 2 owe mnie een, . 89
Deposit in lieu of undertaking ............. eee eee eee ee eens 89, 90
Requisites of an undertaking to stay execution of a decree... .97, 388-890
Filing the undertaking. ........ 0.0.0. cece cece eee reece es 98, 99
Compelling the execution of a new undertaking............ 110, 112, 392

On appeal to the Common Pleas from the City Court of New York...... 407
On appeal to the Common Pleas from a District Court of New York..... 456

On appeal to the County Court......... 0. ccc ee cece cece ee eee tence eeens 428
Pron AGU SMe be asa ys igre. cas sh neefas oi ela Sh tieddcaig oda or ek epee ye wisi gre ears 423
Form and contents of the undertaking. ............0. ee eevee 72, 98, 423
Approval of the undertaking. ...............66. ise wwe ewueee oF 96, 424
Service and filing of the undertaking............. 0... cece eee eee 425
On appeal from an order in summary proceedings. ............. 425, 426
On appeal from an order in proceedings against estrays............. 426
Exception to sureties and justification of sureties...............6.- 429
Allowance of surcties and notice thereof............. 0.0. cece eee 430
On appeal from the City Court of Yonkers. .......... 0... eee e cence ees 465
STAY OF PROCEEDINGS :
On appeal pending motion for resettlement of the case.................- 172
Objection on appeal that proceedings are stayed for non-payment of costs. 331
On motion at General Term for a new trial......... 2.0. c eee eee eee eee 515
STIPULATION :
Waiver by stipulation of right to appeal.................000% 514 aansiauele 18
Power of the court to set aside stipulations and orders thereon.......... 224
Setting a cause down for a day certain. ........ ec ee eee cee 261

SUBMISSION OF A CONTROVERSY :

Who may submit a controversy... ... 66.66 cee eee ee ee eee ence eee 346, 347
What controversies may be submitted. ......... 20... 200k cee eee eee eee 347
Case containing statement of the facts........... 0.000. e cece eee ee 346, 348
Affidavit to accompany the case... ...... eee eee eee eee eee eee eens 346, 849
Submission must be acknowledged or proved, and certified............. 346
Where filed, and effect of the filing. ...... 0... ccc cece cece eee e cere eens 346
‘Arrest, injunction or attachment cannot be granted.............0sseeeee 346

Printing papers and bringing on the hearing....... ....cseeeveeeveees . 34s
632 * Typex.

SUBMISSION OF A CONTROVERSY—(Continued): Page
Must be tried upon the case at Gencral Term.... ....seeceeeeeee ieterainis 346
What questions will be considered.............cceeeceeeseeceeeueeeneee 348
Dismissal of submission for defects in the Case........cecceeeeeeeee cere 347
Judgment, and judgment roll......... ccc. cece eens ee eeee eset ee eeeee ces 346
COStS ieahiattrireere acta: os weadaluis crabs Suda pie oaweio exe wcae dear detkwre owe swale 846

SUBSTITUTION :

Of stranger to the record in place of a party..........0.+ec00 seeeeee 35, 41
Of heir, devisee, executor or administrator of deceased party ......... 37, 41
Proceedings to substitute or bring in parties on appeal..............- 41, 395
Remedy for failure to procure substitution. .........eccceceeseeneeereee 42
SUMMARY PROCEEDINGS :
Appeal from orders in, how taken...........ccceeececeeeseeceeaeces 52, 417
New trial in County Court not authorized............ccce cece e cece eee . 58
Time within which appeal must be taken.... .........-008 ceeneeeeees 56
Security to stay execution of Warrant........ccsececueeeececneesceece 88, 425
Restitution upon reversal... ..... 0... eee e es cece eee eeeeet et eeesecntenes 193
SUPERIOR CITY COURTS:
What courts are included in that term.............cccceceseeceereeence 28
Judges, officers and attendants Of.......... ccc ees ece eee e cee een eeees 28
Appointment of General Terms..............05 ce cee eeeeeeeeeeeeeeee 28
General Term must be held by at least two judges.............ce eee eee 28
Concurrence necessary to a decision.......... 0 ce cece eee eect cence eeece 28
Appellate jurisdiction of........... vaieuiacspuniaia oyacehenesdl Stem fteuotedetdiais uaa ac 28, 29
Appeal to the General Term from judgment or order of the same court.
301-360
(See GENERAL TERM.)
Appeal to the Common Pleas from City Court of New York.......... 402-413
(See Common PLEAs.)
Appeal to Common Pleas from District Court................0..0 eee 455-462

(See Common PLEAs.)
Appeal from the Municipal Court of Buffalo to Superior Court of Buffalo

29, 414
(See County Courts.)
Appeal to Court of Appeals from determinations of.................. 196-301
(See Court oF APPEALS.) -
SUPERIOR COURT OF BUFFALO :

Judges, officers and attendants of the court.......... 28
Appointment of General Terms. ......... 06.00 cee ec cece cece erence ens 28
Number of judges sitting at General Term. ......... ccc cece cee eee ee eeee 28
Concurrence necessary to & Gecision......... 6. eee cece eect ee ee ee eees 28°
Appellate jurisdiction of the COUrt......... cece cece cece eee tee e teen es 28, 29
Review of judgments of the Municipal Court of Buffalo.............. 29, 414
Person not a party cannot appeal from judgment of Municipal Court, 35
Time within which the appeal must be taken............... 0. ccc eee 55
Payment of costs of action and fee for return.............. cece ee 72, 422

Appeal to the General Term from the judgment or order of the same court
301-360

(See GENERAL TERM.)
InnrEx. 633

SUPERIOR COURT OF BUFFALO—(Continued):

Page

Requisites of notes of issue for the General Term ..............005. 318
Calendar of the General Term...........cccee cee ece cence esesences 323
Delivery of copy of appeal papers to clerk for law library........... 330
Submission of controversy without action. ......... ccc. cece eee eae 346-349
SUPERIOR COURT OF THE CITY OF NEW YORK. (See GruneraL TERM.)
Judges, officers and attendants of the Superior Court................005 28
Appointment of General Terms......... 0.0 cee cece cece eee e ence eeaenes 28
General Term must be held by at least two judges..........c sce e eee wees 28
Two judges must concur in a decision. .........ccsc cece een cence enone 28
Appellate jurisdiction of the General Term of......... ....... 28, 29, 301-313
Time within which an appeal must be taken to........... 00... ceeees 54, 318
Rule as to filing case or exceptions,......... 6. cece eee eee cece eee 152, 153
Rule as to points on an appeal based upon errors of fact............. 154, 316
Requisites of notes of isSU€ 1... 6. cece cece eee eee eee e etree tee eens 3818
Time Of ANDE NOG OF ISSUE. occ eccnaonanee Gargiretalocsioaie GeameEds 319
Effect of failure to comply with requirements as to note of issue......... 325
Rule as to filing printed copies of case, papers and points...... ..... 321, 330
Order of causes on the calendar........... ccc cece e cece eee ee eneees 822, 323
Appeals from orders placed on a special calendar................-. eee 323
Call of the: general calendars: scccsewcwesasrraos anew usmeraeseaww aes 327
Sctting down or reserving CaUSCS...... 66... cece cece ee eee eect neees 823
Papers for the Superior Court reporter... ........ cece cece cece cere eens 329
Pa persPor thes elenk i ovscc teanacessnieieieveiawe La aera lemeacaarecaouebonn guaaleenamains 329
Default may be taken on the hearing of appeals from orders........ ... 330
Proceedings where the appellant fails to serve the case, &.............. 831
Motion for reargument must be submitted on the papers................ 360

General practice on an appeal to the General Term of the court..... ..301-860

(See GENERAL TERM.)

Submission of a controversy without action............ 0... cece eee 346-349
Appeals from the Superior Court to the Court of Appeals............ 196-300
(See Court or APPEALS.)

SUPPLEMENTARY PROCEEDINGS :
Who may eppeal from order made in... ... cece cece eee cece eee 382
OTAEP IT, HOW TEVICWER: a5, ccc rneaieiecwie eis vince wo te watee @ieasendrerg parenaeeaeienonstaca 8
Time within which appeal must be taken... 20.1... 0. .e cece cece enone 56

(See SPECIAL PROCEEDINGS.)

SUPREME COURT. (See GeneRraL TERM.)
Organization of the General Terms..... . 26... cece cece cence eee eeee 24
Judicial departments of the state 2... ccc e eee cence eee renee 24, 25
GET CTA VOM FUSECES) ss. ameivave onsiarsraved ania trie aaviohesedeieeta seats weaeraatacdmnanveege 25
Officers and attendants of the General Term.............. 0c. cece cee eee 25
JAPpOINtMentiOM terms: <cin6cucarrenaio Bicsaneiai gage merguncine seas inansat 25

From what courts or terms an appeal may be taken to........ .. 2... 26
Appeal to the Court of Appeals from determinations of
(See CourT or APPEALS.)
Appeal to the General Term from judgments or orders made in
(See GENERAL TERM.)
634 Inpex.

SUPREME COURT—(Continued) : Page

Appeal. to Supreme Court from Surrogate’s Court......eeseeeees 861, 881-401

(See SurRocAtTE’s CouRT.)
Appeal to the Supreme Court from City Court of Yonkers....... 862, 462-467
(See Yonkers, Crry Court oF.)

Appeal to the Supreme Court from inferior courts generally.........- 861-380
From what courts an appeal may be taken .......-...-+e+ eee 26, 27, 361
What judgments of an inferior court may be reviewed.........-.-++ 362
Judgment must be final to be appealable.........-6.. ee eeee reese 861, 362
What judgments are ‘‘ final” within the meaning of the Code ...210, 3638
Review of interlocutory judgments and intermediate orders......... 364
Appeal from orders made in actionS..........6-. 0 cee ee ee eee eee 864

Orders in actions taken to County Court by appeal............- 364
Order granting leave to issue execution on judgment on tran-
SCT pbs scctsd dd acraiciay nicadeaaaiais pa cmsccade onan ta wade Hea ees 364
Orders affecting a substantial right..........0 eee eee e cree ee ees 365
Discretionary orders 2.0.0... cece c cece ence teen een e teen ences 365
Appeal from orders made in special proceedings............00eeeeee 366
Time within which the appeal must be taken..............-0-00- 54, 367
Serving notice of appeal... ...... cece cee ee cece tee ee eee tenes 368
Security to perfect the appeal ......... ec. eee e cece eens enone 68, 369
Staying execution of judgment or order appealed from........... 80, 369
(See Stay or EXECUTION.)
Limiting or dispensing with security on appeal........- ......-. ee 371
Curing defects in the proceedings to take the appeal or to stay execu-
TOD wsicaldwexved Gamideensaw wsibs mardndqemitesssentacstetsians 116, 372
Transfer of the papers upon which the appeal is to be heard to the
appellate COUT: sas. 5 nate nase aed mans Mees Eoey aa aeweeows 185, 872
Upon what papers the appeal will be heard. ... .............-- 131, 372
Making, serving, and settling a case. ........ 187, 189-146, 148-152, 373
(See Casz.)
Preparing points for the court and adverse party ............... 158, 873
Printing the papers to be used on the appeal and service of copies.155, 874
Putting the cause on the calendar.......... 0c. c cece eee eee ene 374
Securing a preference on the calendar................. 066. 156-160, 374
Striking the cause from the calendar ....... 0.06.0... ce eee cece eee 875
Notice of argument c.02.c005 coceeesennsis sateee pete sacine a4 819, 375
Hearing of the appeal, and proceedings thereon .............. ee eens 376
Questions brought up for review by the appeal... ...... eee eee 376
On appeal from a fina] order in a special proceeding. ........... 37
On appeal from a final judgment. ...... 0... cee cee eee es 376
Review of questions of fact ......... 0... cece eee ee ee eee 377, 378
Review of determinations of County Court on appeal from justice
GOULT crsra a cannaitie sates gave Nocoarnaieninanes aan wala eeNoae 377-379
Judgment or order on the appeal and proceedings thereunder... .879, 380
Entry of the judgment ....... 0... ccc cece cece e cece eee enees 379
Entity of the Orden icc caiaduadeaumlosguceaivecees tees ae Vie 3%
Enforcement of the Judgment........... 0. cc cece eee eee ee 879, 380
Enforcement of order made in special proceedings.............. 3880
Correcting docket Delow..... 0... cc cece ec eee eee eter et eneeerees 380

Restitution cccwsnysanawrveewi vn dgeikai wey esa suek «seatean 191, 3880
Inpex. 635

SUPREME COURT—(Continued): Page
Costs on the appeal . 2... ++ See wispisiwesh 2 pale feeb eeer ss bocereeencnes 468-497
7 Gp eee Ee - (See Costs.)

SURETIES :

Number of sureties required in an undertaking on appeal........... 71-78, 94
Affidavit of sureties as to property qualifications....... dad amas evan stain 95
Acknowledgment of undertaking by suretics............cceeceecceeeees 96
Approval of surcties in undertakings. ............ cc cece eee e een eee sees 96
Exception to sureties... 0... 0... cece cece ccc e cee cence cece eeneeneeesenes 100
Justification of sureties. .... 0... ccc eee eee ce eee cece ee een eee eeeees 100, 101
Qualifications of ....... Siauatepacevea seco: ing tis Va sisliod wedanreaeQuares 102
ANOWANCEIOE. + sessincispesty, aseerieisd bv eaameled oa sa'eicee ee emeehamnas emendes 103
Notice of sureties of application to discharge a levy.............000% 107, 108
Insolvency of sureties in undertakings given on appeal... .........20005 110
Liability of sureties in undertakings given on appeal..............0..00% 112
Discharge of sureties from liability. .......... ccc cece ceeeecseeeeeeceees 114
Limitation of actions against......... cc. cece ccc eee eee e cette cen cen sence 115
When entitled to maintain an appeal........... cece cece cece et ee see ee ees 84
SURPRISE :
Meaning of the term when used in relation to legal proceedings........... 580
When a ground for a new trial. ........ cc ec cence eee cence eee eee ee 630-535
Must relate to a matter of fact ........ cece cece cece e eee eee eens 530
By evidence of witnesses of adverse party...........ecc cece cece cues 531
By acts and declarations of adverse party, or counsel..............45 532
By unexpected testimony of witnesses of moving party.............. 534
By absence of witnesses for the moving party. ...........0.0005 584, 585
Failure to move for postponement of the trial, when fatal.... ...... 533
Motion for new trial must be made at Special Term....... 2.02.2... 520
Case not necessary on motion for new trial for............ eee e eee eee . 528
Moving party must not be guilty of laches........... 02. eee e cece eee eee 535
Granting of new trial for, rests in discretion of the court................ 5385
Costs of former trial may be imposed as condition of new trial.......... 5385
Only motion costs allowed on denying motion.............. cece eee wees 547
SURROGATE’S COURT:
Nature of an appeal froma decree of a surrogate. .........0e: cece ee eneee 2
Objections to decree which can be taken only by appeal ..............4. 3
TSA COUTMOLTOCONG fi caine diclar  daiarews.dis.o:8(e we Reo. wie Re HA dao astresavdneisulerans 361
Not embraced in the scheme originally provided for appeals............. 361
Appeal to the Supreme Court from a Surrogate’s Court............2..06 881
What decrees or orders are appealable..........c cece eee eens 881, 382
Decrees or orders upon default cannot be reviewed...............4- 281
Ex parte orders not appealable......... cece cece ect eet ee ee eneee 881
Orders affecting a substantial right....... 0... eee e cece cece cece eee 382
Parties to the-appeals:s.232. asawicaseaveeaees ae edse geese es Keses 86, 882
Who may appeal.asisctegs04 sea io 5 5 th enen aseroseegiteaesiaw ee is 86, 882
Who must be made respondeht..........sceeesee eee eneneee 89, 40, 383
Bringing in persons not parties. ........ ccc e eee eee eee 89, 40, 41, 395

- Dismissal of appeal of a person not a party for falure to procure sub-
BUM ON ss deccd je cegunneisew essa ee sieiakiapensanamabiee sig ween R186 42, 395
636 i InpEx.

SURROGATE’S COURT—(Continued): Page
Designation of the parties in the title...,......... eiaefeiset es 88, 383, 384
Service of the notice of appeal............00.0006 iene slew wmwiss Cees eee 384
Requisites of the notice of appeal.........eccceececeeeeeeneeeree cee 38+
Affidavit of facts showing right of person not a party to appeal...... 384
Time within which the appeal must betaken.... .......eseeee.  eeeee ee 885
Security to perfect the appeal... .......0. cecccsceee cece ceeececreceeees 885
When no security is required to perfect the appeal.........-...0006 386
Requisites of an undertaking to perfect appeal.............. 72, 385, 386
Deposit in lieu of undertaking...... 0... cece eee cece eee een ee eees 386
Undertaking must be approved........ A eaweaasae es weed we Oa BRE 96, 386
Proceedings on insolvency of surety.........0csee cee e eee eee e eens 387
Exception to and justification of sureties in New York.............. 887
Curing defects in proceedings to take the appeal...........-..e eee 116, 388
Staying execution of the decree or Order... .... cece ccc eee ere eee eeeeens 388
Staying decree for payment of money or delivery of property....... 888
Staying order granting leave to issue execution ...........00eeeeeee 389
Staying decree or order directing commitment.............006 eeeee 390
Issuing letters, not stayed by appeal from decree for probate........ 391
Stay not effected by appeal from decree revoking probate........... 391
When perfected appeal effects a stay....... cece cee eee eee ee cece eee 892
Curing defects in proceedings to obtain a stay............ 2. «- 116, 393
Increase of security on motion of respondent ...........-..0ce cee ee 893
Making case containing exceptions .......... . 6. cece eee eee ee ee eens 394
When a case is required on appeal from a decree................065 394
When no case is required on an appeal............0.. eee eee 188, 394
Time within which the case must be made and served............... 140
Extension of time to make @ Cas... .. ccc cece cece eee eee cece eeee 141
Serving amendments and notice of settlement...............04. 148, 149
Case must be settled and signed by the surrogate....... 128, 187, 149, 394
Proceedings on the settlement of the case........... 2.0.0 150, 151, 394
Exceptions when taken and filed............ sees e eee ees 128, 394
Printing, serving and filing the papers to be used on the appeal...... 155, 396
Ailing: NOtEIOLASSUE. ways sk ea duane eines Mine eo oman 317, 396
Order of preference on the calendar of the appellate court. .............. 157
Service of notice of argument............. ee eee cece eer eeee ee ee eens 896
Proceedings on the hearing. ........ ccc ceee cece cece cece eens cenceee 131, 397
Receiving evidence on the appeal........ccc eee eee cess eee anes 168, 164, 398
Questions reviewable on the appeal.............. 0. cece eee ee cee eee 397
Intermediate order specified in the notice of appeal..............06 397
Decisions excepted to by the appellant reviewed in all courts........ 397
On appeal from decree settling executor’s accounts............ee0ee 397
Power of the Supreme Court where the appeal is upon the facts..... 398
Objections not taken below not considered on appeal............... 398
Principles governing the decision of the appeal. ............eceeeeeeeees 399
When error in admitting or rejecting evidence not a ground for reversal
178, 399
Judgment or order on the appeal ...... cece eee ees cece reece eens en eee 400
Appellate court may reverse, affirm, or Modify..........ceeeee eee 400
Entry of the judgment or order........... i. Secu n acale-o-Wiacooiaie iwieie io RIS 6 400

Enforcement of the judgment........sceseeeceecees Lovaas wees wens 400
INDEX. 637

SURROGATE’S COURT—(Continued): Page
Award Of TPESUCUHOD «6.6665 e ssi scissivials wine paeeusoed ar dawege say 400
Proceedings on reversal upon questions of fact.............eeeeeeee 400
When proceedings remitted to surrogate on reversal................ 401

Costs on appeal from, discretionary....... 2.0.0. c cece eee eee ence e eee 4%5
May be made payable out of the fund or by a party................ 477
On reversal by Court of Appeals... 02... 1. eee eee eee eee ee cee 480, 482
Separate bills of costs in case of infant parties............6.06 cece 483
Amount of costs on appeal from an order............. eee eee eee 487
Amount of costs on appeal from @ decree..... 6... eee eee eee ee eee 487

Direction for the trial of issues of fact by a jury..... 6... ce vee ee ee ees 500
Review of such trial by motion for new trial........ 6... eee eee ees 500
Appeal from order made upon motion for new trial...............- 500

Jurisdiction of, may be first questioned in Court of Appeals............. 274

Facts determined by, not reviewed by Court of Appeals.........-.-..6 283

TIME :

Within which to appeal... 22... ccc ccc cece eect ee eect ne ee ee eeeeenes 53-62
To Court of Appeals... ... cece ccc cece eee en et ee eee eeeeee 58, 244
To General Term of the same court......... 2. cece ee cee eee eee 54, 313
To Supreme Court from inferior court............ cece eee ee cee 54, 367
To Supreme Court from Surrogate’s Court............0. ee vee 54, 385
To Superior City Court from inferior court............. ee eee eee 55, 406
To County Court from inferior COUrL... 6... cc cece ener eee 55, 419
In special proceedingS...... ..ccceee ese e eee cece eens eeecenesenes 55

To take an appeal, how limited.......... cee cee cece eee cence eee eeeene 56

To appeal cannot be extended... 2.0... cece cece cece eee ee reer eee 59, 385

Waiver of statutory limit as to time to appeal. ............ eee eee ee eee 60

Computation of time. ...... ccc cette eect tener eee e eens 619

In which to take exceptionS......... cc cece cece cee cence eee eenes 126-12

Extension of time to take and file exceptions... ..........seseeeseeeee 129

In which to transmit return to appellate COUrt....... 6. eee ee eee eee eee 135

In which to make and serve & CASC... 6... eee ee eee ee ence eee ree 139

Extension of time to make @ Case... .... cece eee eee er eee n aren eeeeee 140

TRUSTEE :

When allowed to maintain an appeal..........++..06 seve ese tds 83, 35

When not required to give security to perfect an appeal..........+-+45- 69

When required to give security to stay execution.............. sentaeneg 88

UNDERTAKING :

'To perfect an appeal to the the Court of Appeals..... whys ROSNER MEE en 68, 249
Requisites of the undertaking. ........-..+.: sees sees ee een eee ees 71, 250
Time within which the undertaking must be given..........se.ee0s 71

To perfect appeal to Supreme Court from judgment of inferior court..71, 369

To perfect appeal to Supreme Court from a Surrogate’s Court........ 72, 385

To perfect appeal to Common Pleas from City Court of New York...71, 406
To perfect appeal to County Court from judgment of a justice. ...72, 78, 423

To perfect appeal from final order in proceedings against estrays..... 72, 426
To perfect appeal from City Court of Yonkers..............ee.eeere 73, 464
To stay execution on appeal to the Court of Appeals..........eeeeeeeee %

Judgment or order for payment of Money..... 6. ese ceee cece eee enes 75
638 InpEx., Hd

UNDERTAKING—(Continued): Page
Judgment or order for delivery of property...,,...26 seeeees sialewenn's 77
Judgment for the possession, sale or delivery of possession of real

PIOPCLbY csssrse's ges e urine swiss de esa eee. coer Mavetendeaniee 78
Judgment for specific performance of contract to sell lands......... 79
To stay execution on appeal to Supreme Court from inferior court... .80, 369
To stay execution on appeal to General Term of same Court.......... 81, 314
To stay execution of decree or order of surrogate on appeal to Supreme
COUrt hited arte 5 tess cisely edits alee sence yale Wikeateruer@niebelecorne teas 888-390
To stay execution on appeal to Common Pleas from City Court......... 407
To stay execution on appeal to County Court from a judgment.......... 423
From an order made in a special proceeding..............++0005 425-427
To stay execution on appeal to Common Pleas from District Courts.... 456
To stay execution on appeal from City Court of Yonkers............... 465
Execution of undertakings on behalf of a municipal corporation........ 91
Requisites as to form and execution of undertakings...........- 98, 251, 423
Formal parts of an undertaking. ............. 00. ecco e seen ees 93, 252
Number of sureties required. ..... 0.0... cece eee e eee eee ee eeeee 94
Qualifications of sureties... 0.0.0... cece eee ee cee cece tence eee eene 102
Affidavit of sureties as to Brower ty qualifications......... ..e.eeeeee 95
ACKNOWIEASMOH E5025 sovie cai dis sieisre:dsgieeereieha sinlereeieinrs Se key cele sewers oe 6 96
APPrOval . ssip:aie:cis sgrieia's s's wists er asioierssacay crest ated aero ineereneetnnaen 96, 424
Detective undertakings in:5 4% accie-ciewisisareresiauesiegaes das: sewinaeeenss ee 2 7
On appeal from a Surrogate’s Court........ cess ee eeeee ....97, 388-890
On appeal from a justice’s COUrt . 6.6... ec cece cece cence eee eens 98, 423
Serving copy undertaking and notice of filing............... 99, 258, 425
Exception to sureties, and justification thereafter..............- 100-103, 387
Compelling execution of a new undertaking............ ccc cece eee eens 110
When sureties become insolvent........... 0... cece ee ee eee ence eens 110
When the sum specified in the undertaking is insufficient........... 111
Liability of sureties on undertakings given on appeal...............00.. 112
Discharge of sureties from liability on undertakings........ ........... 114
Limitation of actionS UPOD. ...... ccc ee cece ee eee e cece e ence eee 115
Curing defects in service Of........+..ceseeeeeees 116, 254, 372, 388, 407, 429
Amendment of undertakingsS............ ccc e cece ween eee eee eeces 118, 119

UTICA, CITY COURT OF :

Appeals from judgments of, taken to County Court of Oneida........... 417
Appeal governed by general provisions as to appeals to County Courts... 417
Costs on appeal from judgment Of.......... cece cece e eee eee e eee ene 472
(See Country Court.)
VERDICT:
Review of errors in directing or refusing to direct verdict....... 185-188, 335
May be set aside for error in the Charge..........eceeeeee eects rect eeeee 182
How far conclusive upon the Court of Appeals...........cc cee eee eens 281

How far conclusive upon the Gencral Term on appeal from a judgment... 335
How far conclusive on appeal from order granting or refusing a new trial.

348, 344
Inconsistent verdict must be set aside......+.+ UNESR GATS SGN AAiSeCals 844
For excessive or insufficient damages.........+++ sacs “344, 845, 3877, 452, 505
InpEx. 639

VERDICT—(Continued) Page
How far conclusive on Supreme Court on appeal from inferior court..... 377
Review of, by the Common Pleas......... ccc eee e eee sence ence eneeee 412
How far conclusive upon the County Court on appeal............... 448, 449
Contrary to evidence, as a ground for new trial...............e beeen eee 502
Against. the weight of evidence, as a ground for new trial............ 502-505
Contrary to instructions, will be set aside...... 0... . cc eee e eee eee eee 505
For excessive or insufficient damages, a ground for new trial............ 505
Obtained by duress, should be set aside....... 2... ccc eee cece cece eeeeee 538
Determined by lot, will be set aside ......... 0 cle cece eect eee e ee ee eens 541
What misconduct of the jury will vitiate their verdict...............605 540
Cannot be impeached by affidavits of jurors........ 0... cece eee eee eee eee 543
Mistake in entering verdict may be shown by affidavit of jurors......... 543

WAIVER :

Of the right to appeal, by stipulation or agreement... ...........0.-000e 18
Of the right to appeal, by acts inconsistent with the right................ 18
By enforcement of beneficial part of a judgment................. 18, 19
By accepting the benefits conferred by an order........... 19, 20, 21, 22
By acceptance Of Costs s.6 +..4 sii cana see cans adarn ares Sanna eines 20
By renewal of a motion to vacate an order,....... 6. cece eee eee nes 21
By proceeding under an order of reference ......... seeeeeceeeeeees 22
Of exceptions to sureties in undertaking on appeal..............266. 100, 101
Of BECULILY Of APPeals ccs ce 42 scene aa eres Ada dG GAB oMenineieD 89
Of objection that the appeal was premature......... cece sete cece eens 302
Of payment of fee for making rectum. ........ cece eee nee eee e eee eee 422
Of objection that appeal was taken too late............ cece eee eee eee es 420

WIFE:

When entitled to maintain an appeal......... ccc eee e eee cece teens 83, 36

WRIT OF ASSISTANCE :

Review of order setting aside......... ccc eee eae neces ceceeeeeeeeeees 220

WRIT OF CERTIORARI. (See CertioranRt.)

When the writ'may issuGscsvcsccc sce sees ceanes saacmiedeeedos weae 13, 14
Nature of the remedy by common law certiorari ............ cece ee eeee 15
What determinations revicwed .......... 0... cece cere eee e ee eeees 18, 16
Questions determined upon the hearing. ........ 0.0... cece eee eens 16, 17
When a review is prohibited by statute... .... 0... ccc cece erence eee cee 17
Order quashing, not reviewable by Court of Appeals..... eat Ween wane 228
WRIT OF ERROR : ‘
Judgments at law formerly reviewed by the wWritiexnsaiswiens seee mse ev oes 1
Has. been abolished... 2+: 22%.n..esachvavemeamaccies Kaoee wear slew eweses os 1
How far analogous to the remedy by appeal........ cc. cece cece eee e cece 1

WRIT OF MANDAMUS. (See MANDAMUS.)
Raview by Court of appeals of order granting, etc......... sseereee 228, 232
640

InpEx.

WRIT OF PROHIBITION ; (See Pronisrrion; SPECIAL PROCEEDING.)

Final order in proceedings by, reviewable only by appeal..........++0++ . 8

Execution of void judgments or orders not restrained by.......+..0+++ » 2B

Cannot be demanded as a legal right.............. cc ceeeeeeeeeneeeeeees 228

Denial of the writ discretionary with Supreme Court.............005000 228

Review of order granting the writ by appeal to Court of Appeals........ 228

Staying execution of final order on appeal...........06 ceeeseeeeeeeeees 87
YONKERS, CITY COURT OF:

To what court an appeal may be taken from.............seeeeeeeeeee 27, 462
‘When the appeal may be taken to the Supreme Court....... 27, 362, 462
When the appeal may be taken to Westchester County Court.27, 416, 462

Appealable-orders:idais tend sd. desncind bai aa wee nceewadebawodls sae sede eee es 463

Mode of taking and perfecting the appeal.............0.0.ceeeee ceeees 464

Security to perfect the appeal. ........ 66. cee ee cece eee teen renee eees 464

Time within which the appeal must be taken.... .........0e ese ee eens 465

Transmission of papers to the appellate court.............. sees cece eens 465

Staying proceedings on the appeal......... sees eee e nce ee eet ee eseee 465, 466

Hearing and judgment........... cscs cee eee cece e eee Gs ietacciha sree a aation care 466

Enforcement of the judgment by the City Court..........::eeeee cece ee ss 466

Subsequent appeals......... cece eee ce ences ence ee eeeeseeeseeneene 466, 467

Costs on appeal from the City Court.......ccesecceceee eee eeeeeneeeene 467