v. Flint, 15 Abb. 368. (4) Eno v. Crooke, 6 How. 460; DeAgreda v. Mantel, 1 Abb. 130; Halsey v. Flint, 15 id. 368; Beers r. Hendrickson, 6 Rob. 53; s. c., 45 N. Y. 665; Beardsley Scythe Co. v. Foster, 36 id. 561.

§ 1318. When no appeal lies from judgment of reversal. — 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 new trial, taken, as prescribed by law, the judg ment of reversal must also be reviewed.

New. See Caughey v. Smith, 47 N. Y. 244; Mehl v. Vonderwalbeke, 46 id. 539.

1319. Mode of enforcing affirmed or modified judgment. 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 appellate court, as if the appeal therefrom had not been taken.

New. See the note to 1322, post. § 1320. Id.; as to order. Where a final order, from which an appeal has been taken, from one court to another, as prescribed in title fifth of this chapter, 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.

New. See the note to 1322, post.

§ 1321.* Mode of cancelling docket of reversed or modified judgment. — Where a final judgment for a 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 an appeal, taken as prescribed in title third or fourth of this chapter; 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 reversal of the judgment, or of the amount to which it has been reduced, upon his docket-book, in each place, where the judg ment 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 original docket; and thereupon the

county clerk must correct his docket accordingly. The lien of a judgment, the docket of which is not corrected, as prescribed in this section, 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. New. See the note to the next section.

§ 1322. Id.; when reversal, etc., was by court of appeals. Where a final judgment for a sum of money, or directing the payment of a sum of money, has been reversed, or affirmed as to part only of the sum, upon an appeal to the court of appeals, the docket may be corrected, as prescribed in the last section, at any time after the remittiture has been filed in the court below.

New.

1323. [Amended, 1877, 1880.] Restitution; when awarded. --Where a final judgment or order is reversed or modified, upon appeal, the appellate court, or the general term of the same court, as the case may be, may make or compel restitution of property or of a right, lost by means of the erroneous judgment or order; but not so as to affect the title of a purchaser, in good faith and for value. Where property has been sold, the court may compel the value, or the purchase price, to be restored, or deposited to abide the event of the action, as justice requires. (1) When the appeal is from a judgment in favor of the owner of real estate, in an action to compel the specific 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 ap pellant 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 penalty in such 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 undertaking 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.

Substitute for Co. Proc., part of 330. Marvin v. Brewster Iron Co., 56 N. Y. 671; Coster v. Peters, 7 Rob. 386; Estus . Baldwin, 9 How. 80; Sheridan e. Mann, 5 id, 201; Britton r. Phillips, 24 id. 111; Whitbecky. Patterson, 22 Barb. 83; Safford r. Stevens, 2 Wend, 164; Young v. Brush, 18 Abb. 171. (1) Marvin v. Brewster Iron Mining Co., 56 N. Y. 671; O'Gara v. Kearney, 77 N. Y. 423.

TITLE II.

Appeal to the court of appeals.

BEO. 1324. What appeals may be taken.

1325. Limitation of time to appeal.

1326. Security to perfect appeal.

1327. Security to stay execution on judgment, etc., for money.
1328. Id., on judgment, etc., for delivery of property.

1329. Id.; on Judgment for a chattel.

1330. Id.; on judgment, etc., directing conveyance.

1331. Id.; on judgment, etc.. for possession of real property.

1332. Construction of the last five sections.

1333. The last six sections qualified.

1334. Undertakings may be in one Instrument; form, and service thereof.

1335. Exception to sureties; Justification.

1336. Appeal from final judgnient rendered after affirmance of inferlocutory judgment, or denial of motion for new trial.

1337. What questions are brought up for review.

1338. When questions of fact to be reviewed.

1339. When a case to be prepared, etc., for the appeal.

§ 1324. What appeals may be taken. — An appeal may be taken to the court of appeals, in a case where that court has jurisdiction, as prescribed in sections 190 and 191 of this act.

Co. Proc., 333, first sentence.

$1325. [Amended, 1877.] Limitation of time to appeal. 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.(1) 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.(2)

Substitute for Co. Proc., 331. McMahon r. Harrison, 5 How. 360; Blydenburgh v. Cotheal, id. 200; Jones e. Porter, 6 d. 286; Bank of Geneva v. Hotchkiss, 5 d. 478; Purdy v. Peters, 15 Abb. 160; Peet v. Cowenhoven, 14 id. 56; Sherwood r. Pratt, 11 Abb. N. S. 115. (1) King . Platt, 3 Abb. N. S. 174; s. c., 34 How. 26; Thurber v. Chambers, 60 N. Y. 29: Hubbard v. Copcutt, 9 Abb. N. S. 289: Cambios r. Butterfield, 15 id. 197; Catlin . Grissler, 57 N. Y. 363. (2) Matter of N. Y. C., etc., R. R. Co., 60 N. Y. 112; Cushman v. Brundrett, 50 Id. 296.

1326. Security to perfect appeal. To render a notice of appeal, to 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 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.(1) The appeal is perfected, when such an undertaking is given and a copy thereof, with notice of the filing thereof, is served, as prescribed in this title.

Co. Proc., part of 334, am'd. (1) Post v. Doremus, 60 N. Y. 371; Kelsey v. Campbell, 38 Barb. 238; s. c., 14 Abb. 368; Griswold v. Fowler, 15 1d. 368; Gardner v. Barney, 24 How. 467; Robinson & Plimpton, 25 N. Y. 484; Smith v. Lynes, 2 id. 569; Schermerhorn v. Anderson, 1 i. 430; Wilson v. Allen, 3 How. 369; Doolittle . Dininny, 31 N. Y. 350; Re Estabrooks, 5 Cow. 27; Blood v. Wilder, 6 How. 446; Thompson v. Blanchard, 3 N. Y. 335: Coithe r. Crane, 1 Barb. Ch. 21; Newton v. Harris, 8 Barb. 306; Hoppock r. Cottrell, 13 How. 461; Drummond r. Husson, 14 N. Y. 60; Poppenhusen v. Seeley, 3 Keyes, 150; Parsons v. Travis, 2 Duer, 662; 5 id. 650; Tiers v. Carnahan, 3 Abb. 69; Ford r. David, id. 385; Langley v. Warner, 1 N. Y. 606; Seacord v. Morgan, 4 Trans. App. 319; 17 How. 394; and 35 id. 487.

§ 1327. Security to stay execution on judgment, etc., for money. If the appeal is taken from a judg ment 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 dismissed, 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 athrined. But where the judgment or order directs the payment of money in fixed instalments, the undertaking must be to the effect, that the appellant will pay each instalment, which becomes payable, pending the appeal, or the part thereof as to which the judgment or order is affirmed, 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, requir ing 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, as prescribed in this section.

Id., 335, first sentence, am'd. N. Y. C. Ins. Co. v. Safford, 10 How. 344: Britton v. Phillips, 24 id. 111; Curtis v. Leavitt 1 Abb. 274; 10 How. 481; Parfitt v. Warner, 13 Abb. 471; Sternhaus v. Schmidt, 5

Abb. 66; Tlers v. Carnahan, 2 id. 69: McMahon. Allen, 22 How. 193; Valton v. Nat. Loan Fund, 19 id. 515; Horner v. Lyman, 4 Keyes, 237; Shankland v. Hamilton, 1 N. Y. Sup. Ct. (T. & C.) 239.

1328. Id.; on judgment, etc., for delivery of property. If the appeal is taken from a 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 next section.

Co. Proc., part of 2 336, am'd. Elliott v. Buckland, 37 How. 71.

1329. Id.; on judgment for a chattel. - 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 written 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.

1330. Id.; on judgment, etc., 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 deposited with the clerk, with whom the judgment or order is entered, to abide the direction of the appellate court.

Id., 337, extended to an appeal from an order. Waring v. Ayres, 12 Abb. 112; Worrall v. Munn, 17 N. Y. 475

1331. [Amended, 1879.] Security to stay execu tion on judgments for possession of real property. -If the appeal is taken from a judgment, which entitles the respondent to the immediate possession of real property, or froin 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 committed, 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 occu pation 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 to the judgment or order, not exceeding a specified sum, fixed by