網頁圖片
PDF
ePub 版

ation he order the timceedin

appeal, and stays the execution of the judgment or order appealed from, without an undertaking or other security. Code Civ. Pro., § 1313, as am'd L. 1889, c. 501.

22 Security on appeal by domestic municipal corporation. Upon an appeal, taken by a domestic municipal corporation, 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. Code Civ. Pro., $ 1314, as am'd L. 1877, c. 416. 75 Hun, 186; 57 N. Y. St. R. 846; 27 N. Y. Supp. 283.

23 When papers to be transmitted to appellate court. Where an appeal is taken from a final judgment as prescribed in title second or thirdt of this chapter, the appellant must, within twenty days after it is perfected, cause a copy of the judgment roll and of the case and notice of exceptions, if any, filed after the entry of judgment and a certified copy of the judgment given thereon and of the notice of appeal 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 and fifths 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. Code Civ. Pro., $ 1315, as am'd L. 1890, c. 312. 92 N. Y. 537, 538, 632; 8 Civ. Pro. 414, 417.

24 Interlocutory judgment, etc., brought up for review. An appeal, taken from a final judgment, brings up for review, an interlocutory judgment, or an intermediate order, which is specified in the notice of appeal, and necessarily affects the final judgment; 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. Code Civ. Pro., § 1316. 25 Hun, 49, 51; 27 id. 384, 386; s. c. 15 W. D. 213; 95 N. Y. 645; 38 Hun, 531; 41 id. 455,

45752'N. Y. Super. 112; 18 W. D. 128; 9 Civ. Pro. 125, 358; 10 id. 122; 12 id. 78; 104 N, Y. 394, 398; 18 Abb. N. C. 409; 21 id. 361, n.; 42 Hun, 604; 7 Daly, 446; 121 Ñ. Y. 156; 18 Civ. Pro. 250; 20 id. 366; 21 id. 317: 126 N. Y. 423; 137 id. 409; 138 id. 669; 111'id. 166; 74 Hun, 521; 75 id. 512; 81 id. 128; 3 Misc. 614; 84 Hun, 396; 87 id. 152; 27 Abb. N. C. 411; 30 N. Y. St. R. 500; 38 id. 437, 857, 1006; 42 id. 8; 51 id. 73; 52 id. 124: 53 id. 295; 56 id. 686, 719; 57 id. 672; 60 id. '401;'62 id. '658, 662;'2 N. Y. Supp. 253; 3 id. 92; 6 id. 261, 891; 8 id. 143; 9 id. 415; 14 id. 521; 15 id, 58; 17 id. 490; 23 id. 15; 30 id. 700; 32 id. 356; 33 id. 1024; 4 App. Div. 365; 65 N. Y. St. R. 555; 67 id.

764; 68 id. 584. 25 Judgment or order on appeal. Upon' an appeal from a judgment or an order, the appellate division of the supreme court or 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

* This subject, SS 32–63. Id., SS 32–53. Id., $S 32-53, 64–69.

1

[ocr errors]

from aediate order, whieht; and which has the te

new trial or hearing. A judgment, affirming wholly or partly a judgment, from which an appeal has been taken, shall not, expressly and in terms, award to the respondent, a sum of money, or other relief, which was awarded to him by the judgment so affirmed. Code Civ. Pro., § 1317, as am'd L. 1895, c. 946. 5 Daly, 136; 7 id. 74; 9 id. 482; 54 N. Y. 221; 57 id. 560; 64 id. 272; 46 id. 556; 50 id. 480;

2 id. 500; 21 id. 185; 17 id. 28; 16 id. 543; 57 id. 637; 53 id. 298; 74 id. 216; 69 id. 462; 75 id. 370, 479; 76 id. 585; 88 id. 339; 109 id. 151; 15 Alb. L. J. 470; 6 Lans. 299; 4 id. 299; 5 Bosw. 110; 4 E. D. Smith, 27; 8. c. 10 How. Pr. 369; 15 Abb. Pr. 368; 1 id. 130; 15 id. 368; 5 Abb. N. C. 1; 8 Barb. 421; 6 How. Pr. 463; 6 Rob. 53, aff'd, 45 N. Y. 665; 9 W. D. 518; 8 id. 349; 16 Hun, 104; 17 id. 338; 30 id. 282, 287; 32 id. 352; 33 id. 435; 45 N. Y. Super. 1; 36 N: Y. 561;,8 Civ. Pro. 13. How: IT; A

1. 36 N Y 561: 8 Civ. Pro. 1: i How. Pr. N. S. 145; 13 Daly, 212: 121 N. Y. 156: 126 id. 423: 128 id. 303, 645: 138 id. 669; 141 id. 166; 60 Hun,

** 337; 69 id. 432; 75 id. 512; 1 Misc. 74; 83 Hun, 426; 25 Abb. N. C. 95; 30 N. Y. St. R. 500, 706; 33 id. 971; 38 id. 437, 878; 40 id. 84, 274; 46 id. 451; 48 id. 410; 50 id. 879; 52 id. 616; 53 id, 294; 56 id. 686; 57 id. 672; 3'N. Y. Supp. 154; 5 id. 151, 622; 9 id.

699: 11 id. 411; 14 id. 826; 20 id. 532; 21 id. 330; 70 N. Y. Št. R. 685; 4 App. Div. 449. 26 Judgment of reversal, how reviewed. Where a judgment, from which an appeal is taken, is reversed upon the appeal, and a new trial is granted, an appeal cannot be taken from the judgment of reversal; but upon an appeal from the order granting a new trial, taken, as prescribed by law, the judgment of reversal must aiso be reviewed. Code Civ. Pro., § 1318. 47 N. Y. 244; 46 id. 539; 67 How. Pr. 18; 112 N. Y. 408, 412; 25 Abb. N. C. 95.

27 Affirmed or modified judgment to be enforced by court below. Where a judgment, from which an appeal has been taken, from one court to another, is wholly or partly affirmed, or is modified, upon the appeal, it must be enforced, by the court in which it was rendered, to the extent permitted by the determination of the appellate court, as if the appeal therefrom had not been taken. Code Civ. Pro., $ 1319. 32 Hun, 352; 40 N. Y. St. R. 947; 49 id. 467; 16 N. Y. Supp. 829.

28 Affirmed or modified order to be enforced by appellate court or court below. Where a final order, from which an appeal has been taken, 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. Code Civ. Pro., § 1320. 4 N. Y. Supp. 934.

29 Correcting docket of reversed or modified judgment; lien of same. Where a final judgment for a sum of money, or directing the payment of a sum of money, has been reversed, or has been affirmed as to part only of the sum, upon an appeal, taken as prescribed in title 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. Code Civ. Pro., § 1321, as am'd L. 1877, c. 416.

30 Same: when reversal, etc., was by court of appeals. Where a final judg. nient for a sum of money, or directing the payment of a sum of money, has been reversed, or affirmed as to part only of the sum, upon an appeal to the court of appeals, the docket may be corrected, as prescribed in the last section, at any time after the remittitur has been filed in the court below. Code Civ. Pro., $ 1322. * This subject, 88 64-69.

† Id., $$ 48–63.

[ocr errors]

31 Restitution, when and how awarded; when owner may sell real estate after appeal taken, cancelling lis pendens, etc. When a final judgment or order is reversed or modified, upon appeal, the appellate court, or the general term of the same court, 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. When 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. When the appeal is from a judgment in favor of the owner of real estate, in an action to compel the specific performance of a contract for the sale thereof, such owner shall have the same right to sell or dispose of the same as though no appeal had been taken; unless the appellant shall file with the clerk of the court a written undertaking, in a sum fixed by the court, or a judge thereof, upon a notice to the respondent of at least ten days, and to be approved by such court or judge, to the effect that the appellant will, in case the judgment appealed from shall be affirmed, pay to such owner such damages as he may suffer by reason of such appeal, not exceeding the amount of the penalty in such undertaking. Such undertaking may be filed at any time during the appeal, but any sale of such real estate or contract to sell the same in good faith and for a valuable consideration, after said judgment and before the filing of such undertaking, shall be as valid as if such undertaking had not been filed. In case such undertaking shall not be filed, the respondent shall be entitled, at any time during such appeal, to an order discharging of record any notice of pendency of action filed in the action, and also canceling and discharging of record said contract, in case the same has been recorded. Code Civ. Pro., $ 1323, as am'd L. 1877, c. 416, and L. 1880, c. 529. 56 N. Y. 671; 77 id. 423; 80 id, 66; 100 id. 616; 98 id. 480, 481; 146 id. 345; 7 Rob. 386; 9

How. Pr. 80; 5 id. 201; 24 id. 111; 22 Barb. 83; 2 Wend. 164; 18 Abb. Pr. 171; 8 Civ. Pro. 125; 8 id. 363; 13 id. 86; 9 Daly, 174; 29 Hun, 215, 216; 42 id. 241; 42 id. 644; s. c. 25 W. D. 293; 53 N. Y. Super. 386; 19 Civ. Pro. 387; 132 N. Y. 363; 1 Misc. 121; 7 id. 15: 11 id. 267; 24 Abb. N. 0. 236; 25 id. 95, 103; 28 id. 175; 32 N. Y. St. R. 1086; 36 id. 795; 38 id. 888; 44 id. 405; 48 id. 699; 57 id. 101; 65 id. 435-437; 66 id. 649; Ý N. Y. Supp. 594, 657; 11 id, 824; 13 id. 333; 14 id. 528; 20 id. 704; 27 id, 368; 32 id. 251; 1 App. Div. 130.

Appeal to the Court of Appeals. 32 In what cases. 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. Code Civ. Pro., § 1324. See cases cited under Court of Appeals, $$ 1, 2.

33 Limitation of time to appeal. 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 appellate division of the supreme court, 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. Code Civ. Pro., § 1325, as am'd L. 1877, c. 416, and L. 1895, c. 946. 4 X. Y. 418: s. c. 5 How. Pr. 200; 57 N. Y. 363, 370; 60 id. 112, 115; 75 id. 250; 54 id. 269,

275: 101 id. 17, 18; 75 id. 611; 101 id. 611; 107 id. 577, 579; 110 id. 639; 5 How. Pr. 360; 3 How. Pr. N. S. 211; 15 Abb. Pr. 160; 11 Abb. Pr. N. S. 115; 10 W. D. 22; 17

id. 315; 15 Civ. Pro. 49, 50; 1 N. Y. Supp. 358. 34 Security to perfect appeal. 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 damazes, 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. Code Civ. Pro., § 1326. 60 N. Y. 371, 375; 31 id. 350; 3 id. 335; 1 id. 606; 76 id. 106, 107; 75 id. 611; 85 id. 241; 109 id. 646; 82 id. 610; 8. c. 10 W. D. 572; 92 N. Y. 632; 8. C. 16 W. D. 563; 38 Barb. * Court of Appeals, SS 1, 2.

+ This subject, SS 32-47.

ding the appceeding a below. The cohat the

238; 8. c. 14 Abb. Pr. 368; 8 Barb. 306, 309; 15 Abb. Pr. 369; 24 How. Pr. 467; 63 id. 84; 67 id. 274; 5 Cow. 27; 3 Keyes, 150; 1 L. B. 83; 6 Civ. Pro. 171; 6 id. 386; 14 id. 417; 26 W. D. 321; 48 Hun, 344; 89 id. 370; 2 N. Y. 569; 1 id. 430; 17 How. Pr. 394; aff'd, 35 id. 487; 4 Dem. 87'; 18 Civ. Pro. 377; 76 Hun, 339; 3 Misc. 55; 31 N. Y. St. R. 277; 39 id. 73; 40 id. 272; 51 id. 836; 59 id. 136; 1 Ñ. Y. Supp. 358, 447, 622; 3 id.

284; 9'id. 744; 15 id. 295; 22 id. 559; 69 N. Y. St. R. 825. 35 Security to stay execution. 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, 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 thc 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. Code Civ. Pro., § 1327. 4 Keyes, 237; 1 T. & C. 239; 102 N. Y. 227; 108 id, 114, 117; 19 Alb. L. J. 517; 63 How.

Pr. 84; 66 id. 283; 21 W. D. 73; 29 Hun, 598; 8. c. 4 Civ. Pro. 335, 339; 8. c. 17 W. D. 400, 401; 31 Hun, 629, 631; 8. c. 18 W. D. 513; 4 Dem. 85; 26 W. D. 321; 19 Civ. Pro. 203; 23 id. 48; 124 N. Y. 189; 128 id. 303; 55 Hun, 401; 76 id. 339; 89 id. 370; 26 Abb. N. C. 48; 33 N. Y. St. R. 209; 35 id. 223; 40 id. 272; 59 id. 136; 63 id. 161; 67 id. 288; 1 N. Y. Supp. 787; 5 id. 502, 731; 8' id. 450; 12 id. 145; 13 id. 836; 69

N. Y. St. R. 825. 36 Same, on judgment or order for assignment, etc., of documents or personal property. If the appeal is taken from a judgment or order, directing the assignment or delivery of a document, or of personal property, it does not stay the execution of the judgment or order, until the thing 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. Code Civ. Pro., § 1328. 8 W. D. 198; 20 id. 35; 39 Hun, 435, 437; 107 N. Y. 645, 647; 11 Abb. Pr. 413; 35 N. Y.

St. R. 224; 5 N. Y. Supp. 502, 731; 9 id. 439. 37 Same, on judgment for chattel. If the appeal is taken from a judgment for the recovery of a chattel, it does not stay the execution of the judgment, until the appellant gives a written undertaking, in a sum fixed by the court below, or a judge thereof, to the effect that the appellant will obey the direction of the appellate court, upon the appeal. Code Civ. Pro., § 1329. 8 W. D. 198: 20 id. 35; 39 Hun, 435, 437; 107 N. Y. 645, 647; 11 Abb. Pr. 413; 35 N. Y.

Pr. 413; 35 N. Y. St. R. 224; 42 id. 190; 5 N. Y. Supp. 502, 731; 9 id. 439; 16 id. 865. 38 Same, on judgment or order directing conveyance. If the appeal is taken from a judgment or order, directing the execution of a conveyance, or other instrument, it does not stay the execution of the judgment or order, until the instrument is executed, and deposited with the clerk, with whom the judgment or order is entered, to abide the direction of the appellate court. Code Civ. Pro., $ 1330. 12 Abb. Pr. 112; 17 N. Y. 475; 108 id. 114, 117; 15 Civ. Pro. 44; 35 N. Y. St. R. 224; 67

id. 288; 2 N. Y. Supp. 195. 39 Same, on judgment or order for possession or sale of real property. If the appeal is taken from a judgment, which entitles the respondent to the immediate possession of real property, or from a judgment or order, directing the sale or the delivery of possession of real property, it does not stay the execution of the judgment or order, until 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,

[ocr errors]
[ocr errors]

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. But if the judgment directs a foreclosure and sale of real property mortgaged, an undertaking is sufficient to stay the execution of the judgment, which is to the effect that if the judgment is affirmed, or the appeal is dismissed, the appellant will pay any deficiency which may occur upon the sale, in discharging the sum to pay which the sale is directed with interest and the costs, and all expenses chargeable against the proceeds of the sale, not exceeding a specified sum, fixed by a judge of the court below. Code Civ. Pro., § 1331, as am'd L. 1879, c. 542. 13 Abb. Pr. 471; 15 id. 367, n.; 2 Code R. 3; 83 N. Y. 261; 12 W. D. 244; 26 id. 321; 29

Hun, 598, 599; 8. c. 4 Civ. Pro. 336, 337, 338; s. c. 17 W. D. 400, 401: 4 Dem. 86: 13 Civ. Pro. 221; 119 N. Y. 632; 19 Civ. Pro. 103; 21 id. 47; 124 N. Y. 189; 131 id, 549; 81 Hun, 376; 35 N. Y. St. R. 223; 49 id. 783; 63 id. 182; 67 id. 288; 5 N. Y. Supp. 502,

731; 4 id. 617, 634; 11 id. 797; 20 id. 812; 30 id. 987. 40 Same, on judgment or order of affirmance. Where the judgment or order, from which an appeal is taken to the court of appeals, affirms a judgment or order, to the effect specified in either of the last five sections, the undertaking must be the 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. Code Civ. Pro., $ 1332. 58 N. Y. 583; 63 How. Pr. 84, 89; 8. c. 10 Abb. N. C. 407; 13 id. 481, 482; 128 N.

Y. 303; 59 Hun, 173; 10 N. Y. St. R. 273; 5 N. Y. Supp. 502, 731; 13 id. 437. 41 Last six sections qualified. The last six sections do not extend to a case, where it is specially prescribed by law, that an appeal may be taken, or the execution 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. Code Civ. Pro., § 1333.

42 Fort and service of undertakings. When two or more undertakings are required to be given, as prescribed in this title, they may be contained in the same instrument, or in different instruments, at the option of the appellant. Each undertaking given as prescribed in this title* must be executed by at least two sureties, 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 expiration of the time of appeal. Code Civ. Pro., § 1334, as am'd L. 1879, c. 542. 75 N. Y. 611; 98 id. 458; 21 W. D. 73; 35 Hun, 36; 33 id, 109; 1 How. Pr. N. S. 370; 7 Civ.

Pro. 133; 14 id. 310, n.; 128 N. Y. 303; 76 Hun, 339; 40 N. Y. St. R. 272; 59 id. 136. 43 Exception to sureties; justification. It is not necessary that the undertaking should be approved; but attorney for the respondent may, within ten days after the 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 the court below, or a judge thereof, or a referee appointed by the same, or a county judge. At least five days notice of the justification must be given. A referee may be appointed upon the motion of either party, or upon the court's own motion to take the justification of such sureties and to report the evidence upon the same to the court or judge with his opinion. The court may further direct that either party shall pay the expenses of such reference. If the court or 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 procure an allowance, is the same as if the undertaking had not been given. The

* This subject, 88 32-47.

of, and a notéeffect of a faid not been gi

« 上一頁繼續 »