ing 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. An exception 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. 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 prepared or settled. See Code Pro., §§ 333 and 265; Wait's Code, 654, 470; 3 Wait's Pr. 433; 4id. 268; Reinmiller v. Skidmore, 59 N. Y. (14 Sick.) 661; Jaycox v. TITLE III. Appeal to the supreme court from an inferior court. SEC. 1340. Appeal from judgment. 1341. Limitation of time; security. 1342. Appeal from order. 1343. Limitation of time and stay of proceedings. 1344. Appeal, where and how heard. 1345. Judgment or order, where entered. from § 1340. An appeal may be taken, to the supreme court, from a Appeal final judgment, rendered by a county court, or by any other court judgment. of record, possessing original jurisdiction, where an appeal therefrom to a court, other than the supreme court, is not expressly given by statute. Code Pro., § 344, first sentence, amended. See Wait's Code, 678; 4 Wait's Pr. 341. The county court has no power to order exceptions to be first heard at the general term. Boyd v. Cronkrite, 10 Hun, 574. See Beatty v. Myers, 6 N. Y. Sup. Ct. (T. & C.) 456; S. C., 4 Hun, 266. An appeal will not lie from a judgment rendered on the report of a ref eree, in an action pending in a county of time; § 1341. [Amended, 1877.] An appeal, authorized by the last Limitation section, must be taken within sixty days after service, upon the attor- security. ney for the appellant, of a copy of the judgment, and notice of the Appeal from order. Limitation of time and stay of proceedings. Appeal, where and how heard. Judgment or order, where entered. entry thereof. Upon such an appeal, security must be given, to perfect the appeal, or to stay the execution of the judgment, and the sureties may be excepted to, and must justify, as upon an appeal to the court of appeals, from a judgment of the same amount, or to the same effect. Code Pro., § 345 and part of § 331, as amended by Laws of 1876, ch. 431, § 13. See Wait's Code, 679; 4 Wait's Pr. 224, 338, 343. If after notice to limit the time to appeal has been given, the judgment is amended in amount, even nunc pro tunc, a new notice is necessary to limit the time to appeal from the amended judgment. Smith v. Evans, 1 Abb. N. Č. 396. Security is not essential to effectuate an appeal from the special to the general term in the city court of Brooklyn. Ib. § 1342. 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 a court, specified in the last section but one. From Code Pro., § 344, amended. See Wait's Code, 678; 4 Wait's Pr. 319; see, also, Woodbury v. Morton, 44 How. 56; Crosby v. Brown, id. 149; Hathaway v. Warren, id. 161. § 1343. [Amended, 1877.] An appeal, authorized by the last section, must 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. Security is not required to perfect it; but it does not stay the execution of the order from which it is taken. The appellate court, or a judge thereof, may direct such a stay, upon such terms, as to security or otherwise, as justice requires. Code Pro., § 331, as amended by Laws of 1876, ch. 431, § 13. And see Code Pro., § 350; Wait's Code, 652, 692; 4 Wait's Pr. 332; Genet v. Davenport, 60 N. Y. (15 Sick.) 194, 197; Clinch v. South Side Railroad Co., 2 Hun, 154; S. C., 4 N. Y. Sup. Ct. (T. & C.) 683; West Side Bank v. Pugsley, 47 N. Y. (2 Sick.) 368; S. C., 12 Abb. N. S. 28. § 1344. An appeal, taken as prescribed in this title, must be heard at the general term. The provisions of title fourth of this chapter, relating to the hearing of appeals, taken in the supreme court, and to the subsequent proceedings thereupon, apply to an appeal, taken as prescribed in this title, except as specified in the next section. Code Pro., § 346, remodelled in accordance with Laws of 1870, ch. 408, §§ 5, 6 and 10. See ante, § 231; and see Wait's Code, 679; 4 Wait's Pr. 311, 347. § 1345. A judgment of the supreme court, rendered upon an appeal authorized by this title, 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 such an appeal, must be entered, and the papers, upon which the appeal was heard, must be filed, in the office of the same clerk. The filing of the judgment-roll, or the entry of the order, as prescribed in this section, is a sufficient authority for any proceeding in the court below, or before the judge, who made the order appealed from, which the judgment or order 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. Substituted for Code Pro., 347. See Wait's Code, 680; 4 Wait's Pr. 315. Where an order is made by a county court, upon a motion in an action pending in that court, an appeal to the supreme court from such order brings nothing into the appellate court TITLE IV. Appeal to the general term of the supreme court, or of a superior city court. SEC. 1346. Appeal from judgment. 1347. Appeal from order. 1348. Id.; when made out of court. 1349. Appeal from interlocutory judgment. 1350. Appeal from final judgment, after affirmance of interlocutory judg ment, or denial of new trial. Review in the court of appeals. 1351. Limitation of time; order to stay proceedings. 1352. Stay of proceedings without order. 1353. Upon what papers appeal to be heard. 1354. Entry of judgment or order; judgment-roll. 1355. Hearing, etc., in the supreme court. from § 1346. An appeal may be taken, to the general term of the Appeal supreme court, or of a superior city court, from a final judgment judgment. rendered in the same court, as follows: 1. 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. Appeal from order. 2. Where the judgment was rendered upon the verdict of a jury, the appeal may be taken upon questions of law. Code Pro., § 348, amended, pursuant to Laws of 1870, ch. 408, § 8; ante, § 236. See Wait's Code, 680; 4 Wait's Pr. 294. A general term has no power to review a case upon the facts on appeal from the judgment where the trial was by jury; the only mode in which the facts can be brought before it for review is by appeal from order of the special term or circuit, granting or refusing a new trial. Boos v. World Mutual Life Insurance Co., 64 N. Y. (19 Sick.) 236; affirming S. C., 6 N. Y. Sup. Ct. (T. & C.) 364; 4 Hun, 133. But the general term can review the facts, where the trial has been before the court without a jury or before a referee. Grocers' Bank v. Penfield, 7 Hun, 279; S. C. affirmed, 10 id. xiii; Walsh v. Mead, 8 id. 387, 389; see, also, Flake v. Van Wagenen, 54 N. Y. (9 Sick.) 25, 28; Hubbell v. Meigs, 50 N. Y. (5 Sick.) 480. § 1347. 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 a 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 provisional 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 this act, 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 judgment, is deemed to have been made, in the action, within the meaning of this section. Code Pro., 349, amended. See Wait's Code, 685-692; 4 Wait's Pr. 318-330. An appeal may be taken to the general term from an order affecting a substantial right, even though it may be of a discretionary character. The term "substantial" includes all positive, material and absolute rights, as distinguished from those of a merely formal or unessential nature. Secur ity Bank v. Bank of Commonwealth, 2 Hun, 287; S. C., 4 N. Y. Sup. Ct. (T. & C.) 518; 48 How. 135. And see Morehouse v. Yeager, 6 J. & Sp. 50; Rathbun v. Ingersoll, 2 id. 211; Liver more v. Bainbridge, 15 Abb. N. S. 436; S. C., 56 N. Y. (11 Sick.) 72. An order striking out an answer affects a substantial right and is appealable to the general term and to the court of appeals. Lindon v. Beach, 6 Hun, 200. But no appeal lies directly to the general term from an order made at the circuit refusing to postpone the trial of a case. Martin v. Hicks, id. 74; S. C., 1 Abb. N. C. 341. See Parker v. Warth, 5 Hun, 417; Whitman v. Nicoll, 16 Abb. N. S. 329; S. C., 49 How. 88. And an order to made out § 1348. An appeal may also be taken, to the general term of Id.; when either of those courts, from an order, made in an action, upon of court. notice, by a judge, out of court, in a case where an appeal might have been taken, as prescribed in the last section, if the order had been made by the court. First clause of § 350, See Wait's Code, 692; 4 330; see, also, Clinch v. Railroad Co., 2 Hun, 154; Code Pro. Y. Sup. Ct. (T. & C.) 683; West Side from inter § 1349. An appeal may also be taken, to the general term of Appeal either of those courts, from an interlocutory judgment, rendered at locutory a special term or trial term of the same court, or, in the supreme court, at a term of the circuit court. Code Pro., § 349, subd. 2; Wait's Code, 685. See Offinger v. De Wolf, 8 J & Sp. 446. judgment. from final after af of inter judgment, of new Review court of § 1350. Where final judgment is taken, at a special term or Appeal trial term, or pursuant to the directions of a referee, after the affirm- judgment, ance, upon an appeal to the general term, of an interlocutory judg- firmance ment; or after the refusal, by the general term, of a new trial, either locutory upon an application, made, in the first instance, at the general term, or denial or upon an appeal from an order of the special term, or of the trial. judge, before whom the issues, or questions of fact, were tried by a in the jury; an appeal to the general term from the final judgment brings appeals. 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 take a cross-appeal therefrom, notwithstanding the expiration of the time to take an original appeal therefrom. New. See Armstrong v. Weed, 62 50 N. Y. (5 Sick.) 689; Ferris v. AsN. Y. (17 Sick.) 250; Barker v. Cocks, pinwall, 10 Abb. N. 8. 137. |