TITLE 1. 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, 69y from which an appeal has been taken, shall not, expressly and in 62. terms, award to the respondent, a sum of money, or other relief, which was awarded to him by the judgment so affirmed. § 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 appealles 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. enforcing § 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, nor upon the appeal, it must be enforced, by the court in which it was ren- modified judgment. dered, to the extent permitted by the determination of the appellate court, as if the appeal therefrom had not been taken. 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 Id.; 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, Restitu upon 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. اش 251 TITLE 2. What appeals may be taken. Limitation of time to appeal. Security to perfect appeal. Security to stay execution on etc., for money. TITLE II. Appeal to the court of appeals. SECTION 1324. What appeals may be taken. 1326. Security to perfect appeal. 1327. Security to stay execution on judgment, etc., for money. 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 judgment rendered after affirmance of interlocutory 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. An appeal may be taken to the court of appeals, in a case where that court has jurisdiction, as prescribed in sections one hundred and ninety and one hundred and ninety-one of this act. § 1325. 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. 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. § 1326. 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. 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. § 1327. If the appeal is taken from a judgment for a sum of money, or from a judgment or order, directing the payment of a sum of money, judgment, 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 affirmed. 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, requiring 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. TITLE 2. etc., for de § 1328. If the appeal is taken from a judgment or order, directing Id.; on the assignment or delivery of a document, or of personal property, it judgment, does not stay the execution of the judgment or order, until the thing livery of 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. property. for a chat § 1329. If the appeal is taken from a judgment for the recovery of a Id.; on chattel, it does not stay the execution of the judgment, until the appel- judgment lant gives a written undertaking, in a sum fixed by the court below, or tel. a judge thereof, to the effect that the appellant will obey the direction of the appellate court, upon the appeal. etc., direct § 1330. If the appeal is taken from a judgment or order, directing Id.; on the execution of a conveyance, or other instrument, it does not stay the judgment, execution of the judgment or order, until the instrument is executed, ing conand deposited with the clerk, with whom the judgment or order is veyance. entered, to abide the direction of the appellate court. of real § 1331. If the appeal is taken from a judgment, which entitles the Id.; on respondent to the immediate possession of real property, or from a judge for judgment, ment or order, directing the sale or the delivery of possession of real possession property, it does not stay the execution of the judgment or order, until property. 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 occupation 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 a judge of the court below. Where the judgment is for a sale of mortgaged premises, and the payment of a deficiency, the undertaking must also provide for the payment of the deficiency. last five § 1332. Where the judgment or order, from which an appeal is taken Constructo the court of appeals, affirms a judgment or order, to the effect speci- tion of the fied in either of the last five sections, the undertaking must be the sections. same, as if the judgment or order, from which the appeal is so taken, was to the same effect, as the judgment or order so affirmed. sections § 1333. The last six sections do not extend to a case, where it is The last six specially prescribed by law, that an appeal may be taken, or the exe- qualified. cution of a judgment or order appealed from may be stayed, without security, or where the security to be given, for either purpose, is specially regulated by law. ings may form, and § 1334. Where two or more undertakings are required to be given, Undertakas prescribed in this title, they may be contained in the same instru- n one inment, or in different instruments, at the option of the appellant. Each strument; undertaking, given as prescribed in this title, must be executed by at service least two sureties; must be approved by a judge of the court below; thereof. and must specify the residence of each surety therein. A copy thereof, with a notice showing where it is filed, must be served on the attorney for the adverse party, with the notice of appeal, or before the expiraration of the time to appeal. Exception § 1335 The attorney for the respondent may, within ten days after to sureties; TITLE 2. justifica tion. Appeal from final judgment after affirm service of a copy of the undertaking, with notice of the filing thereof, serve upon the attorney for the appellant, a written notice, that he excepts to the sufficiency of the sureties. Within ten days thereafter, the sureties, or other sureties in a new undertaking, to the same effect, must justify, before a judge of the court below, or a county judge. At least five days' notice of the justification must be given; in every other respect, the provisions of sections five hundred and seventy-eight, five hundred and seventy-nine, and five hundred and eighty of this act apply to the justification. If the judge finds the sureties sufficient, he must indorse his allowance of them, upon the undertaking, or a copy thereof; and a notice of the allowance must be served upon the attorney for the exceptant. The effect of a failure so to justify, and to procure an allowance, is the same, as if the undertaking had not been given. § 1336. Where final judgment is rendered in the court below, after the affirmance, upon an appeal to the general term of that court, of an rendered interlocutory judgment; or after the refusal, by the general term, of a ance of in- new trial, either upon an application, made, in the first instance, at the terlocutory judgment, general term, or upon an appeal from an order of the special term, or or denial of of the judge before whom the issues, or questions of fact, were tried new trial. by a jury; the party aggrieved may appeal directly from the final judgment to the court of appeals, notwithstanding that it was rendered at a special term, or at a trial term, or pursuant to the directions, contained in a referee's report. But such an appeal brings up, for review, only the determination of the general term, affirming the interlocutory judgment, or refusing the new trial. motion for What questions are § 1337. An appeal to the court of appeals from a final judgment, or brought up from an order, granting or refusing a new trial in an action, or from for review. a final order affecting a substantial right, made, either in a special proceeding, or upon a summary application after judgment in an action, brings up for review, in that court, every question, affecting a substantial right, and not resting in discretion, which was determined by the general term of the court below, in rendering the judgment or making the order, from which the appeal is taken; except that a question of fact, arising upon conflicting evidence, cannot be determined upon such an appeal, unless where special provision for the determination thereof is made by law. Whenquestions of fact to be reviewed. When a case to be appeal. § 1338. Upon an appeal to the court of appeals from a judgment, reversing a judgment entered upon a referee's report, or a decision of the court, upon a trial without a jury; or from an order granting a new trial, upon such a reversal; it must be presumed, that the judgment was not reversed, or the new trial granted, upon a question of fact, unless the contrary clearly appears, in the body of the judgment or order appealed from. In that case, the court of appeals must review the determination of the general term of the court below, upon the questions of fact, as well as the questions of law. § 1339. Where an appeal to the court of appeals, from a judgment, prepared, rendered at a general term of the court below, upon a verdict, subject to the opinion of the court, has been perfected, a case, containing a concise statement of the facts, of the questions of law arising 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. TITLE 8. TITLE III. Appeal to the supreme court from an inferior court. SECTION 1340. Appeal from judgment. 1341. Limitation of time; security. 1342. Appeal from order. 1343. Limitation of time and stay of proceedings. 1345. Judgment or order, where entered. § 1340. An appeal may be taken, to the supreme court, from a final Appeal froin judgjudgment, rendered by a county court, or by any other court of record, ment. possessing original jurisdiction, where an appeal therefrom to a court, other than the supreme court, is not expressly given by statute. of time; security. § 1341. An appeal, authorized by the last section, must be taken Limitation within sixty days after service upon the attorney for the appellant of a copy of the judgment and notice of the 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. § 1342. An appeal may also be taken, to the supreme court, from an Appeal order, affecting a substantial right, made by the court or a judge, in an from order. action brought in a court, specified in the last section but one. of time and § 1343. An appeal, authorized by the last section, must be taken, Limitation within sixty days after service upon the attorney for the appellant, stay of pro of a copy of the order, and written notice of the entry thereof. ceedings. 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. § 1344. An appeal, taken as prescribed in this title, must be heard Appeal, where and at the general term. The provisions of title fourth of this chapter, how heard. 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. or order, § 1345. A judgment of the supreme court, rendered upon an appeal Judgment authorized by this title, must be entered in the judgment-book, kept where enin the office of the clerk of the county, wherein the court below is tered. 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 |