chapter, except where the judgment or order, of which he complains, was rendered or made upon his default.

TITLE 1.

appeal;

Title of

§ 1295. The party or person appealing is designated as the appel- Parties to lant, and the adverse party as the respondent. After an appeal is how desigtaken to another court, the name of the appellate court must be substi-nated. tuted, for that of the court below, in the title of the action or special cause. 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.

party may

§ 1296. A person aggrieved, who is not a party, but is entitled by When a law to be substituted, in place of a party; or who has acquired, since itled to be. the making of the order, or the rendering of the judgment appealed come a from, an interest, which would have entitled him to be so substituted, appeal. 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.

§ 1297. Where the adverse party has died, since the making of the Appeal order, or the rendering of the judgment appealed from, or where the verse party judgment appealed from was rendered, after his death, in a case pre- has died. scribed 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.

ings, when

appeal.

§ 1298. Where either party to an appeal dies, before the appeal is Proceed. heard, or has heretofore died and the appeal has not been heard, if an party dies, order, substituting another person in his place, is not made, within pending 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 justice requires.

substitu

§ 1299. Where the appeal is from one court to another, an applica- Order of tion for an order of substitution, as prescribed by the last three sections, tion. 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.

how taken.

§ 1300. An appeal must be taken, by serving, upon the attorney for Appeal, 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, to the effect, that the appellant appeals from the judgment or order, or from a specified part thereof.

TITLE 1. When no

§ 1301. Where the appeal is from a final judgment, or from a final tice of ap order in a special proceeding, and the appellant intends to bring up, peal to spe- 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.

cify interlocutory judgment,

etc. Proceed

ings, if at party not

torney or

found.

Defects in proceed

ings may be supplied.

Order appealed

§ 1302. 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, in the manner prescribed by law for serving it upon an attorney. 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.

$1303. 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.

§ 1304. An appeal cannot be taken from an order made by a judge, from must out of court, until it is entered in the office of the proper clerk. Where be entered. such an order has not been so entered, or the papers, upon which it ings to com- was founded, have not been filed in the same clerk's office, the judge pel entry. who made it, or, if he is absent, or unable or disqualified to act, a

Proceed

Security may be waived.

Deposit, in lieu of

ing.

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 last section but one apply to the service of an order, or a notice, as prescribed in this section.

§ 1305. An undertaking, which the appellant is required, by this chapter, to give, or any other act which he is so required to do, for the security of the respondent, may be waived by the written consent of the respondent.

§ 1306. Where the appellant is required, by this chapter, to give an undertak undertaking, he may, in lieu thereof, 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. 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. 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.

Undertak ing must be filled.

§ 1307. An undertaking, given as prescribed in this chapter, must

be filed with the clerk, with whom the judgment or order appealed from is entered.

TITLE 1.

dertaking

ties are in

§ 1308. The court, in which the appeal is pending, upon satisfactory New unproof, by affidavit, that since the execution of an undertaking, given to be given, as prescribed in this chapter, one or more of the sureties therein have when surebecome insolvent; or that his or their circumstances have become so pre-solvent, carions, the there is reason to apprehend, that the undertaking is not etc. sufficient for the security of the respondent; 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. If the 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.

to be

§ 1309. An action shall not be maintained, upon an undertaking, Action given upon an appeal, taken as prescribed in title third, fourth or fifth going dertaking, of this chapter, until ten days have expired, since the service, upon when not the attorney for the appellant, of a written notice of the entry of a brought. judgment or order, affirming the judgment 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 maintained upon the undertaking, given upon the preceding appeal, until after the final determination of the appeal to the court of appeals.

§ 1310. Where an appeal has been perfected, as prescribed in this when apchapter, and the other acts, if any, required to be done, to stay the peal stays proceed execution of the judgment or order appealed from, have been done, ings; effect the appeal stays all proceedings to enforce the judgment or order thereof. 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 judgment 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, if it was taken as prescribed in title fifth of this chapter, into the supreme court.

property,

perseded

§1311. Where an appeal, taken, from a final judgment, to the court Levy upon of appeals, has been perfected, and the security, required to stay the personal execution of the judgment, has been given; or where the security, when sugiven upon an appeal, taken from a final judgment of the supreme court, by appeal. a superior city court, a county court, or the marine court of the city of NewYork, is equal to that required to perfect an appeal to the court of appeals, and to stay the execution of the judgment; the 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 undertaking, discharging a levy upon personal property, made by virtue of an execution, issued upon the judgment appealed from. But this section does not authorize the discharge of a levy, made by virtue of a warrant of attachment.

limit

§ 1312. Where an appeal is taken, as prescribed in title second or Court may fourth of this chapter, the court, in or from which the appeal is taken; amount of or, where an appeal is taken as prescribed in title third or fifth of this security in chapter, the court, to which the appeal is taken; may, in its discretion, cases.

*So in the original.

certain

TITLE 1.

No security necessary,

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 limited, in the discretion of the court.

2. The aggregate sum, in which one or more undertakings are re quired to be given, may be limited to not less than fifty thousand dol lars, where it would otherwise exceed that sum.

§ 1313. Upon an appeal, taken by the people of the State, or by a on appeal State officer, or board of State officers, the service of the notice of apby the peo- peal perfects the appeal, and stays the execution of the judgment or ple, etc. order appealed from, without an undertaking, or other security.

Id.; on appeal by a domestic

corpora

tion.

§ 1314. Upon an appeal, taken by a domestic municipal corporation, the service of the notice of appeal perfects the appeal, and stays the exemunicipal cution 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 this chapter, 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 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 to the corporation, may execute, in behalf of the corporation, an undertaking, so required to be given.

Papers to be trans

mitted to appellate

court.

§ 1315. Where an appeal is taken from a final judgment, as prescribed in title second or third of this chapter, the appellant must, within twenty days after it is perfected, 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. Where an appeal from an order, or a part of an order, is taken as prescribed in title second, third, or fifth of this chapter, 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 order was founded, to be transmitted to the appellate court, by the same clerk. If the appellant fails so to do, the respondent may cause those papers to be so transmitted; and he is entitled to tax the expense thereof, as a disbursement, where 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. § 1316. An appeal, taken from a final judgment, brings up for review, an interlocutory judgment, or an intermediate order, which is ate order, specified in the notice of appeal, and necessarily affects the final judgmay be re- ment; and which has not already been reviewed, upon a separate appeal therefrom, by the court or the term of the court, to which the appeal from the final judgment is taken. The right to review an interlocutory judgment, or an intermediate order, as prescribed in this section, is not affected by the expiration of the time, within which a separate appeal therefrom might have been taken.

Interlocu. tory judg. ment, or intermedi

viewed.

Judgment or order on appeal.

§ 1317. 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 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 judgment, from which an appeal has been taken, shall not, expressly and in termis, award to the respondent, a sum of money, or other relief, which was awarded to him by the judgment so affirmed.

TITLE 1.

§ 1318. Where a judgment, from which an appeal is taken, is When no reversed upon the appeal, and a new trial is granted, an appeal cannot appeali from judg be taken from the judgment of reversal; but upon an appeal from the ment of reorder granting a new trial, taken, as prescribed by law, the judgment of reversal must also be reviewed.

versal.

§ 1319. Where a judgment, from which an appeal has been taken, Mode of from one court to another, is wholly or partly affirmed, or is modified, enforced or upon the appeal, it must be enforced, by the court in which it was ren- modified dered, to the extent permitted by the determination of the appellate court, as if the appeal therefrom had not been taken.

judgment.

order.

§ 1320. Where a final order, from which an appeal has been taken, Id.; as to 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.

docket of

modified

judgment.

§ 1321. Where a final judgment for a sum of money, or directing Mode of the payment of a sum of money, has been reversed, or has been affirmed cancelling as to part only of the sum, upon an appeal, taken as prescribed in title reversed or 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 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 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.

etc., was

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

tion; when

§ 1323. Where a final judgment or order is reversed or modified, Restituupon appeal, the appellate court, or the general term of the same court, awarded. 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.