TITLE 1. CHAPTER XII. APPEALS. TITLE I.—GENERAL PROVISIONS, RELAting to the appeals PROVIDED FOR IN THIS CHAPTER. TITLE II.-APPEAL TO THE COURT OF APPEALS. TITLE III.-APPEAL TO THE SUPREME COURT FROM AN INFERIOR Court. OF A SUPERIOR CITY COURT. TITLE V.-APPEAL FROM A FINAL DETERMINATION IN A SPECIAL PRO CEEDING. Writs of error abolished. TITLE I. General provisions, relating to the appeals provided for in this chapter. SECTION 1293. Writs of error abolished. 1294. When party may appeal. 1295. Parties to appeal; how designated. Title of cause. 1296. When a person entitled to become a party may appeal. 1297. Appeal when adverse party has died. 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 Levy upon personal property, when superseded by appeal. 1312. Court may limit amount of security in certain cases. 1313. No security necessary, on appeal by the people, etc. 1314. Id., on appeal by municipal corporation. 1315. Papers to be transmitted to appellate court. 1316. Interlocutory judgment, or intermediate order, may be reviewed. 1317. Judgment or order on appeal. 1318. When no appeal lies 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. 1323. Restitution; when awarded. § 1293. The writ of error in a civil action or special proceeding has When par- been abolished. ty may ap peal. § 1294. A party aggrieved 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. 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. titled to be 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 treno.. 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. verse party $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 when adjudgment 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. appeal. § 1298. Where either party to an appeal dies, before the appeal is Proceedheard, or has heretofore died and the appeal has not been heard, if an party dies, ings, when 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. $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. substitu 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 inter locutory judgment, etc. Proceed ings, if at party not torney or found. Defects in proceed ings may be supplied. § 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. Order ap§ 1304. An appeal cannot be taken from an order made by a judge, pealed 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 Undertak- the determination of the appeal. ing must be filed. § 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. 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, dertaking 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, carious, 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. dertaking, 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 an unof 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. thereof. § 1310. Where an appeal has been perfected, as prescribed in this when ap chapter, 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 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. §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 property, execution of the judgment, has been given; or where the security, when su given upon an appeal, taken from a final judgment of the supreme court, by appeal. perseded 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, *So in the original. certain TITLE 1. 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 required to be given, may be limited to not less than fifty thousand dollars, where it would otherwise exceed that sum. No security § 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 apnicipal corporation. § 1314. Upon an appeal, taken by a domestic municipal corporation, peal by mu 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 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 transmitted to court. § 1315. Where an appeal is taken from a final judgment, as prescribed in title second or third of this chapter, the appellant must, appellate 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 judg may 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. Interlocutory 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 |