CHAPTER XII. APPEALS. TITLE I- GENERAL PROVISIONS, RELATING TO THE APPEALS PROVIDED FOR IN THIS CHAP TER. TITLE II. - APPEAL TO THE COURT OF APPEALS. TITLE III. - APPEAL TO THE SUPREME COURT FROM AN INFERIOR COURT. TITLE IV. - APPEAL TO THE GENERAL TERM OF THE SUPREME COURT, OR OF A SUPERIOR CITY COURT. TITLE V.- APPEAL FROM A DETERMINATION IN A SPECIAL PROCEEDING. TITLE I. General provisions, relating to the appeals provided for in this chapter. SEO. 1293. Writs of error abolished. 1294. When party may appeal. 1295. Partles to appeal; how designated. Title of cause. 1298. Proceedings, when party dies pending appeal. 1299. Order of substitution. 1300. Appeal, how taken. 1301. When notice of appeal to specify Interlocutory judgment, etc. 1302. Proceedings, if attorney or party not found. 1303. Defects in proceedings may be supplied. 1304. Order appealed from must be entered. Proceedings to compel entry. 1305. Security may be waived. 1306. Deposit in lieu of undertaking. 1307. Undertaking must be filed. 1308. New undertaking to be given, when sureties are insolvent, etc. 1309. Action upon undertaking, when not to be brought. 1310. When appeal stays proceedings; effect thereof. 1311. Levy upon personal property, when superseded by appeal. SEC. 1313. No security necessary, on appeal by the people, etc. 1314. Id.; on appeal by a domestic municipal corporation. 1315. Papers to be transmitted to appellate court. 1316. Interlocutory Judgment, or intermediate order, may be re viewed. 1317. Judgment or order on appeal. 1318. When no appeal lles from judgment of reversal. 1319. Mode of enforcing affirmed or modified judgment. 1320. Id.; as to order. 1321. Mode of cancelling docket of reversed or modified Judgment. § 1293. Writs of error abolished. The writ of error in a civil action or special proceeding has been abolished. Substituted for Co. Proc., 333, and the first sentence of 457. See Isaacs r. Beth Hamedrash Soc., 19 N. Y. 584; Freeman v. Ogden, 40 id. 105; Freeman v. Kendall, 41 id. 518. 1294. When party may appeal. —A party ag grieved(1) may appeal, in a case prescribed in this chapter, except where the judgment or order, of which he complains, was rendered or made upon his default.(2) Co. Proc., 325, am'd by adding the final clause. Sanford, 58 N. Y. 67; Garnsey v. Knights, 1 T. & C. 259; People v. (1) Sanford v. Lynch, 54 N. Y. 681. (2) See Flake r. Van Wagenen, 54 N. Y. 25; MIIler r. Tyler, 58 id. 477; Maltby v. Greene, 1 Keyes, 548: Pope v. Dinsmore, 8 Abb. Pr. 429; s. c., 29 Barb. 367; Stewart v. Morton, 8 Abb. Pr. 429, note: Dorr r. Birge, 5 How. Pr. 323; Townsend v. Masterson, etc., Co., 15 N. Y. 587; Bennett v. Van Syckel, 18 id. 481; Knapp v. Brown, 11 Abb. N. S. 118. § 1295. Parties to appeal; how designated. Title of cause. The party or person appealing is designated as the appellant, and the adverse party as the respondent. After an appeal is 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 proceeding, and in any case, the name of the county, if it is mentioned, may be omitted; otherwise the title shall not be changed, in consequence of the appeal. Id., 326, am'd. See Willey v. Shaver, 1 T. & C. 328. 1296. When a person entitled to become a party may appeal. 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 also appeal, as prescribed in this chapter, 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, upon motion of the respondent. New. $1297. Appeal when adverse party has died. — 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, 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. In such a case, an undertaking required to perfect the appeal, or to stay the execution of the judgment or order appealed from, must recite the fact of the adverse party's death; and the undertaking enures, after substitution, to the benefit of the person substituted. New. § 1298. [Amended, 1877.] Proceedings, when party dies pending appeal. Where either party to an appeal dies, before the appeal is heard, or has heretofore died, and the appeal has not been heard, if an order, substituting another person in his place, is not made, within three months after his death, or, where he has heretofore died, within three months after this section takes effect, 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 dismissed, as the case requires. The order must specify a day, when cause is to be shown, which must be not less 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 affidavit, that notice has been given, as required by the order, may reverse or affirm the judgment or order appealed from, or dismiss the appeal, or make such further order in the premises, as the case requires. Substitute for Co. Proc., part of 121. See Beach v. Gregory, 2 Abb. 203; Miller v. Gunn, 7 How, 159; Hastings v. McKinley, 8 id. 175; Schuchardt v. Remiers, 28 id. 514; s. c., 1 Daly, 459. $1299. Order of substitution.-Where the appeal is from one court to another, an application for an order of substitution, as prescribed by the last three sections, must be made to the appellate court. Where personal service of notice of application for an order has been made, within the State, upon the proper representative of the decedent, an order of substitution may be made, upon the application of the surviving party. New. § 1300. Appeal, how taken. - An appeal must be taken, by serving.(1) upon the attorney for the adverse party, as prescribed in article third of title sixth of chapter eighth of this act, and upon the clerk, with whom the judgment or order appealed from is entered, by filing it in his office, a written notice,(2) to the effect, that the appellant appeals from the judgment or order, or from a specified part thereof. Co. Proc., 327, first sentence. (1) Morris v. Morange, 17 Abb. 86; 8. c. 26 How. 247; Ellsworth v. Fulton, 24 id. 20; Tripp v. De Bow, 5 d. 114 People r. Eldridge, 7 id. 103: Crittenden v. Adams, 51d. 310; Cotes v. Carroll, 25 id. 436. (2)Pickersgill v. Read, 5 Hun, 120; Wilson e. Allen, 3 How. 372; People v. Boylston, 17 id. 120; Sherman r. Wells, 14 d. 525; Jackson e. Fassitt, 12 Abb. 281; s. c., 33 Barb, 615: Garnsey v. Knight, 1 T. & C. 259; Barnes v. Stoughton, 6 Hun, 254. § 1301. When notice of appeal to specify interlocutory judgment, etc. Where 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. New in form. See 1316 and 1317, post. § 1302. Proceedings, if attorney or party not found. -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 dili gence, 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 dili gence, 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. New. - $1303. Defects in proceedings may be supplied. 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, or 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. Co. Proc., part of 327, am'd. People v. Eldridge, 7 How. 108; Cotes v. Carroll, 23 id. 436; Fry v. Bennett, 16 id. 355; Irvin e. Muir, 13 id. 410; Whitley v. Leeds, 27 id. 378; Mills e. Thursby, 11 id. 129; Sternhaus v. Schmidt, 5 Abb. 66; Bryant v. Bryant, 4 Abb. N. S. 135: s. c., 7 Rob. 49; Morris v. Morange, 17 Abb. 86; s. c., 26 How. 247; Ellsworth v. Fulton, 24 Id. 20. § 1304. Order appealed from must be entered. Proceedings to compel entry. 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.(1) 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. Upon proof, by affidavit, that a copy of the latter order has been served, and that the omission has not been supplied, the same judge may make, upon notice, an order revoking and annulling the original order. The provisions of the |