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.

Appeal from judg ment.

Appeal

from order.

TITLE IV.

Appeal to the general term of the supreme court, or of a superior city court.

SECTION 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 judgment, 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.

§ 1346. An appeal may be taken, to the general term of the supreme court, or of a superior city court, from a final 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.

2. Where the judgment was rendered upon the verdict of a jury, the appeal may be taken upon questions of law.

§ 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 nine hundred and seventy-one 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 judgment, 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.

TITLE 4.

made out

§ 1348. An appeal may also be taken, to the general term of either Id.; when of those courts, from an order, made in an action, upon notice, by of court. 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.

from inter

§ 1349. An appeal may also be taken, to the general term of either Appeal of those courts, from an interlocutory judgment, rendered at a special focutory term or trial term of the same court, or, in the supreme court, at a term judgment. of the circuit court.

from final

afteraflirm

Review in

§ 1350. Where final judgment is taken, at a special term or trial Appeal term, or pursuant to the directions of a referee, after the affirmance, judgment, upon an appeal to the general term, of an interlocutory judgment; or ance of inafter the refusal, by the general term, of a new trial, either upon an terlocutory application, made, in the first instance, at the general term, or upon or denial of judgment, an appeal from an order of the special term, or of the judge, before new trial. whom the issues, or questions of fact, were tried by a jury; an appeal the court of to the general term from the final judgment brings up, for review, only appeals. 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.

of time;

§ 1351. An appeal, authorized by this title, must be taken, within Limitation thirty days after service, upon the attorney for the appellant, of a copy order to of the judgment or order appealed from, and a written notice of the stay proceedings. entry thereof. Security is not required to perfect the appeal; but, except where it is otherwise specially prescribed by law, the appeal does not stay the execution of the judgment or order appealed from; unless the court, in or from which the appeal is taken, or a judge thereof, makes an order, directing such a stay. Such an order may be made, and may, from time to time, be modified, upon such terms, as to security or otherwise, as justice requires. If security is given, either as a condition of granting the order, or as prescribed in the next section, the provisions of title second of this chapter apply thereto, as if the general term was specified in those provisions, in place of the appellate court, and a judge of the same court, in place of a judge of

the court below.

proceed

§ 1352. Upon an appeal from a final judgment, taken as prescribed stay of in this title, the appellant may give the security, required to perfect ings withan appeal to the court of appeals, from a judgment of the same amount, out order. or to the same effect; and to stay the execution thereof. In that case, the execution of the judgment appealed from is stayed, as upon an appeal to the court of appeals, and subject to the same conditions.

§1353. An appeal from a final judgment, taken as prescribed in this Upon what title, must be heard upon a certified copy of the notice of appeal, of the papers apjudgment-roll, and of the case or notice of exceptions, if any, filed, as heard. prescribed by law or the general rules of practice, after the entry of

peal to be

the judgment, and either before or after the appeal is taken. An appeal from an interlocutory judgment, or from an order, taken as prescribed in this title, must be heard upon a certified copy of the notice of appeal, and of the papers used before the court or the judge, upon the hearing of the demurrer, application for judgment, or motion, as the case requires.

§ 1354. Where judgment of affirmance is rendered upon the appeal, the judgment-roll consists of a certified copy of the judgment, annexed to the papers, upon which the appeal was heard. Where subsequent proceedings are taken, at the special term or trial term, before the entry of final judgment, the judgment-roll must also contain the proper papers relating thereto.

§ 1355. An appeal taken to the general term of the supreme court, as prescribed in this title, must be heard in the department, embracing the county, in which the judgment or order appealed from is entered; unless an order is made, as prescribed in section two hundred and thirty-one of this act, directing that it be heard in another department. The judgment rendered, or the order made, upon the appeal, must be entered, and the judgment-roll, or the papers upon which the appeal was determined, as the case requires, must be filed, in the office of the clerk of the county, where the judgment or order appealed from is entered. If the appeal is determined at a general term, held in another county, the clerk of that county must, at the expense of the successful party, transmit a certified copy of the determination, and the other papers, if any, required to be filed, to the clerk of the county where the judgment or order is to be entered.

Appeal from order

TITLE V.

Appeal from a final determination in a special proceeding.

SECTION 1356. Appeal from order made in the same court.
1357. Id.; when made by another court or judge.

1358. Intermediate order may be reviewed.

1359. Limitation of time to appeal.

1360. Stay of proceedings; hearing of appeal; decision thereupon. 1361. This title qualified. Application of provisions relating to actions.

§ 1356. An appeal may be taken, to the general term of the supreme made in the court, or of a superior city court, from an order, affecting a substantial same court. right, made in a special proceeding, at a special term or a trial term of the same court, or, in the supreme court, at a term of a circuit court; or made by a judge of the same court, in a special proceeding instituted before him, pursuant to a special statutory provision; or instituted before another judge, and transferred to, or continued before him.

Id.; when made by

another

court or

judge.

§ 1357. An appeal may also be taken to the supreme court, from an order, affecting a substantial right, made by a court of record, possessing original jurisdiction, or a judge thereof, in a special proceeding instituted in that court, or before a judge thereof, pursuant to a special statutory provision; or instituted before another judge, and transferred to, or continued before, the judge who made the final order.

But this section does not apply to a case, where an appeal from the order, to a court, other than the supreme court, is expressly given by statute.

TITLE 5.

may be re

§ 1358. An appeal, authorized by this title, brings up for review, any Intermedipreceding order, made in the course of the special proceeding, in- ate order volving the merits, and necessarily affecting the final order appealed viewed. from, which is specified in the notice of appeal.

of time to

§ 1359. An appeal, authorized by this title, must be taken within Limitation thirty days after service of a copy of the final order, from which it is appeal. taken, with a written notice of the entry thereof, upon the appellant; or, if he appeared, upon the hearing, by an attorney at law or an attorney in fact, upon the person who so appeared for him.

cision

§ 1360. The provisions of title fourth of this chapter, relating to per- Stay of profecting an appeal from an order, taken as therein prescribed; to stay- hearing of ceedings; ing the execution of the order appealed from; to hearing the appeal; appeal; deand to the entry and enforcement of the order made upon the appeal, thereupon, apply, where an appeal is taken, as prescribed in this title, except as otherwise specially prescribed by law.

visions re

§ 1361. This title does not confer the right to appeal from an order, This title in a case, where it is specially prescribed by law, that the order cannot Applica qualified. be reviewed. The proceedings upon an appeal, taken as prescribed tion of proin this title, are governed by the provisions of this act, and of the lating to general rules of practice, relating to an appeal in an action, except as actions. otherwise specially prescribed by law.

TITLE 1.

CHAPTER XIII.

EXECUTIONS.

TITLE I.-FORMS OF EXECUTION; TIME AND MANNER OF ISSUING

AN EXECUTION; GENERAL DUTIES AND LIABILITIES OF

OFFICERS.

TITLE II.-EXECUTION AGAINST PROPERTY.

TITLE III.-EXECUTION AGAINST THE PERSON.

To whom execution

TITLE I.

Forms of execution; time and manner of issuing an execution; general duties and liabilities of officers.

SECTION 1362. To whom execution directed; provision where sheriff is a party. 1363. Time of receipt to be indorsed on execution.

1364. The different kinds of execution.

1365. To what counties executions may issue.

1366. General requisites of executions.

1367. Id.; when issued on filing transcript from justice's court, etc.

1368. Requisites of execution for the collection of money.

1369. Id.; against property.

1370. Id.; where a warrant of attachment has been issued.

1371. Id.; against executor, etc.

1372. Id.; against the person.

1373. Id.; for delivery of property. How money, recovered by same

judgment, may be collected.

1374. Separate executions, where separate sums awarded.

1375. Execution of course, within five years.

1376. Execution, after death of judgment creditor.

1377. When execution may be issued after five years.

1378. Id.; leave, how obtained.

1379. No execution against decedent, except, etc.

1380. Leave required to issue execution against decedent's property.

1381. Leave, how obtained.

1382. Time of stay by order, etc., not reckoned under this title.

1383. Execution against surviving judgment debtors.

1384. Sale on execution, etc.; when and how conducted.

1385. Penalty for taking down or defacing notice of sale.

1386. Validity of sale, when not affected by sheriff's default, etc.
1387. Purchases on such sale, by certain officers, prohibited.
1388. When execution to be enforced by under-sheriff.

§ 1362. An execution must be directed to the sheriff, unless he is a directed; party or interested; in which case it must be directed as prescribed in section one hundred and seventy-three of this act. But the court may, in its discretion, order an execution, issued upon a judgment rendered against a sheriff, either alone or with another, to be directed to a person, designated in the order, instead of to the coroners, or a particular

provision where sheriff is a party.