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ized for that purpose, he must comply with the provisions of this title, and perform the duties thereby required of the former sheriff.










The court of appeals.

ARTICLE 1. Jurisdiction, and mode of exercising the same; general powers; terms

and sittings.

2. The clerk of the court.

3. The state reporter; publication and distribution of the reports.




$ 190. Cases in which court of appeals
has jurisdiction.

191. Exceptions and qualifications.
192. Appeals from certain orders, how

193. Court may make rules.

194. Remittitur; when judgment ab


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$190. The court of appeals has exclusive jurisdiction to review, upon appeal, every actual determination, made at a general term, by the supreme court, or by either of the superior city courts, in either of the following cases, and no others:

1. Where a final judgment has been rendered, in an action commenced in either of those courts, or brought there from another court; and, upon such an appeal, to review an interlocutory judgment or intermediate order, involving the merits, and necessarily affecting the final judgment.

2. Where an order has been made in such an action, affecting a substantial right, and not resting in discretion, which either (first) in effect determines the action, and prevents a final judgment, or (second) discontinues the action, or (third) grants or refuses a new trial, or (fourth) strikes out a pleading, or part of a pleading, or (fifth) decides an interlocutory application, or a question of practice, or (sixth) determines a statutory provision of the State to be unconstitutional, and the determination appears from the reasons given for the decision, or is necessarily implied in the decision.

3. Where a final order, affecting a substantial right, has been made in a special proceeding, or upon a summary application in an action, after judgment; and, upon such an appeal, to review any intermediate order, involving the merits, and necessarily affecting the order appealed from.

4. [am'd 1882.] When an interlocutory judgment has been entered on the decision of a demurrer, provided that the appeal shall be taken within sixty

days after the service on the attorney for the appellant of a copy of the judgment and notice of the entry thereof, and provided also that, excepting in the case of appeals now pending, the general term shall certify that in its opinion the question arising therein is of sufficient importance to render a decision by the court of appeals desirable before proceeding farther.

So much of the provisions of the subdivision hereby added to said section one hundred and ninety as precedes the second proviso thereof, shall apply to appeals already pending in the court of appeals, as well as to those which may hereafter be brought, excepting that so much of said subdivision as limits the time for the taking of said appeals shall not be applicable to appeals already pending.

§ 191. [am'd 1877.] But the jurisdiction, conferred by the last section, is subject to the following limitations, exceptions, and conditions:

1. An appeal cannot be taken, from an order granting a new trial, on a case or exceptions, unless the notice of appeal contains an assent, on the part of the appellant, that if the order is affirmed, judgment absolute shall be rendered against the appellant.

2. An appeal cannot be taken, in an action commenced in a court of a justice of the peace, or in the marine court of the city of New York, or in a district court of that city, or in the city court of Yonkers, or in a justices' court of a city, unless the court below allows the appeal, by an order made at the general term which rendered the determination, or at the next general term after judgment is entered thereupon. An action discontinued because the answer set forth matter showing that the title to real property came in question, and afterwards prosecuted in another court, is not deemed to have commenced in the court wherein the answer was interposed, within the meaning of this subdivision.

3. An appeal cannot be taken from a judgment, or from an order granting or refusing a new trial, except in an action or special proceeding affect. ing the title to real property, or an interest therein, if the matter in controversy, excluding costs, is less than five hundred dollars; unless the court below, by an order made at the general term which rendered the determination, or at the next general term after judgment is entered thereupon, allows the appeal, on the ground that a question of law is involved, which ought to be reviewed by the court of appeals.

If an appeal is taken, by the plaintiff, from a judgment rendered in an action not founded upon a contract, the sum for which, the complaint demands judgment, or, if the action is to recover one or more chattels, the value of the chattels, as stated in the complaint, is deemed to be the amount of the matter in controversy, within the last subdivision, unless the defendant has interposed a counterclaim; in which case the counterclaim must be ¡ncluded, in determining the amount in controversy.

192. An appeal from an order, under subdivision second of the last section but one, except an order which in effect determines the action and prevents a final judgment, or discontinues the action, or grants or refuses a new trial upon a case or exceptions, may be noticed for hearing on a motion day, and heard as a motion.

§ 193. The court may from time to time make, alter, and amend, rules, not inconsistent with the Constitution or statutes of the State, regulating the practice and proceedings in the court, and the admission of attorneys and counsellors at law, to practice in all the courts of record of the State.

§ 194. The judgment or order of the court of appeals must be remitted

to the court below, to be enforced according to law. Upon an appeal from an order granting a new trial, on a case or exceptions, if the court of appeals determines that no error was committed in granting the new trial, it must render judgment absolute upou the right of the appellant; and after its judgment has been remitted to the court below, an assessment of damages, or any other proceeding, requisite to render the judgment effectual, may be had in the latter court.

§ 195. Upon a second and each subsequent appeal, including a case where a former appeal has been dismissed for a defect or irregularity, the time of filing the return, upon the first appeal, determines the place of the cause upon the calendar.

§ 196. The terms of the court of appeals must be appointed to be held, at such times and places as the court thinks proper, and continued as long as the public interest requires.

§ 197. A term of the court may be appointed to be held in a building, other than that designated by law for holding courts. A term may be adjourned from the place where it is appointed to be held, to another place in the same city. One or more of the judges may adjourn a term, without day, or to a day certain.

$198. The court may, from time to time, by an order entered in its minutes, appoint and remove its clerk, its reporter, and such attendants as it deems necessary.

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199. The clerk of the court of appeals, before entering upon the duties of his office, must subscribe and file the Constitutional oath of office, and must execute and file in the Comptroller's office a bond to the people of the State, in the penalty of twenty-five thousand dollars, with two sufficient sureties, approved by the Comptroller and conditioned for the faithful performance of the duties of his office. If the bond is forfeited by a breach of its condition, the court of appeals must, by order, direct an action to be brought thereon. The money recovered must be applied, under the direction of the court of appeals to indemnify the persons aggrieved by the breach, in proportion to their respective losses, and to make good any other loss, occasioned by the breach. The clerk must keep his office at the city of Albany, and the trustees of the State Hall must assign him suitable rooms therein for that purpose.

200. The clerk, by a writing, under his hand and the seal of the court filed in his office, from time to time must appoint, and may at pleasure re move, a deputy clerk, who is entitled to a salary, fixed and to be paid as prescribed by law. Before entering upon his duties, the deputy-clerk must subscribe and file in the clerks office the Constitutional oath of office. While the clerk is absent from his office, or from the sitting of the court,

or the office of clerk is vacant, the deputy-clerk has all the powers and is subject to all the duties of the clerk.

§201. [am'd 1877.] The clerk may, with the approbation, in writing, of the judges of the court, or a majority of them, employ as many assistants in his office as are necessary. He may from time to time appoint, and at pleasure remove, his assistants. Each assistant is entitled to a compensation, fixed and to be paid as prescribed by law. The clerk may appoint one of his assistants as special deputy-clerk; who possesses, in the absence of the clerk and the deputy-clerk, the same power and authority as the clerk at any sitting of the court which he attends, with respect to the business transacted thereat.

$202. All money, stocks, securities, bonds, mortgages and other things in action, and other property, which, were possessed by the last clerk of the court of appeals, elected by the people, by virtue of his office, have been transferred to, and have become possessed by and vested in, the clerk appointed by the court, as the successor in office of the last elected clerk, notwithstanding the change in the mode of appointment to the office and in the tenure thereof.

§ 203 All money now in the custody or under the control of the clerk, and all other money which may hereafter be paid to or received by him on account of a fund, or in a cause, must be deposited, until invested as prescribed in this article, in such bank or banks as the court of appeals directs. Accounts thereof must be kept with the banks in manner and form as the court directs.

$204. On the first Tuesday of January, and on the first Tuesday of July, in each year, the clerk must transmit to the chief-judge a statement, verified by his affidavit, of all money then remaining in court or in his hands, which must specify:

1. The fund or the title of the cause in or on account of which each sum of money was paid

2. The party by whom it was paid, and generally for what purpose. 3. The time of payment and the amount paid.

4. The bank in which it is deposited.

205. The statement must be accompanied with a certificate of the cashier of each bank in which a deposit is stated to have been made, to the effect that the total amount stated to be deposited is actually in the bank, placed to the credit of the clerk, as clerk of the court of appeals, and not mingled with any other account.

$206. The court may, by order, direct any portion of the money to be invested in the public debt of the State, or of the United States, or in approved interest-bearing mortgages upon real property. It may in like manner direct any sum of money, or any security, to be transferred or disposed of, as the court thinks proper. The clerk shall not invest any money, except pursuant to such a direction. Money deposited shall not be drawn from the bank, except on a check, signed by the clerk and countersigned by the chief-judge, or, in his absence, by an associate judge of the court.

207. The court may also, from time to time, appoint a suitable person to examine the accounts kept by, and the securities in the custody of the clerk, who shall be paid by the Comptroller for that service a reasonable sum, certified by the chief-judge.

§ 208. The court may also, from time to time, make such regulations

concerning the money and securities specified in this article, making deposits, keeping accounts and drawing money, as it deems proper; but each regulat.on so made must be entered in the minutes.



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§ 209. The reporter appointed by the court of appeals is styled the State reporter; and each provision of a statute, wherein the State reporter is mentioned, applies to the officer thus appointed.

§ 210. The State reporter must report every cause, determined in the court of appeals, which the court directs him, or which the public interest, in his judgment, requires him to report. To enable him to perform that duty, the judges of the court must deliver to him the written opinions, rendered in each cause so determined. Each decision of the court, which is reported, must be so reported as soon as practicable after it is made; and if the reporter neglects faithfully to perform that duty, it is the duty of the court to remove him from office.

§ 211. The State reporter shall not have any pecuniary interest in the reports; but a contract for the publication thereof, under his supervision, must, from time to time, be made, in behalf of the people, by the State reporter, Secretary of State, and Comptroller, with the person or persons who agree to furnish to the Secretary of State, so many copies of each volume, as may be needed to enable him to comply with the next section but one; and also to publish and sell the reports, on terms the most advantageous to the public, regard being had to the proper execution of the work, and at a price not exceeding three dollars for a volume of not less than five hundred pages. Each contract, so entered into, must provide for the publication of the reports, for three years from the expiration of the time, specified for that purpose in the last contract. If the State reporter, Secretary of State, and Comptroller unite in determining, that a contract has not been faithfully kept by the person or persons agreeing so to publish the reports, they may, by an instrument in writing under their hands, filed in the office of the Secretary of State, annul the same from a time specified in the instrument; and thereupon they may enter into a new contract, for the publication of the reports, for three years from the time so specified. Before entering into a contract, the State reporter, Secretary of State, and Comptroller must advertise for, receive, and consider proposals for the publication of the reports.

$212. [am'd 1877.] Neither the State reporter nor any other person shall obtain a copyright for the opinions contained in the reports; and the same may be published by any person. But the copyright of the statement of facts, of the head-notes, and of all other notes or references, prepare by the State reporter, must be taken by, and shall be vested in the Secre tary of State, for the benefit of the people of the State.

§ 213. Of the copies of each volume of the reports, furnished to the Secretary of State, he must deliver one to the clerk of each county, for the

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