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45 Barb. 348; 42 id. 441; 7 Rob. 443; 1 Keyes, 483; 16 Hun, 586; 16 id. 507; 24 id. 320; 27 id. 18, 20; 29 id. 652, 653, 670, 31 id. 289; 39 id. 437; 2 L. B. 16; 4 East. Rep. 787; 1 N. Y. St. R. 99; 5 Civ. Pró. 143; 10 id. 122; 14 id. 362; 15 id. 23, 50; 13 id. 221; 15 id. 45; 17 How. Pr. 192; 19 id. 515; 6 Dem. 288; 9 W. D. 114; 18 Civ. Pro. 286; 19 id. 203; 21 id. 210; 60 Hun, 473; 63 id. 492; 80 id. 255; 6 Misc. 575; 26 Abb. N. C. 48; 30 N. Y. St. R. 223; 33 id. 209; 39 id. 536; 45 id. 346; 57 id. 786; 61'id. 766; 65 id. 102; 2 N. Y. Supp. 10, 33, 145, 194; 3 id, 830; 9 id. 304; 12 id. 146; 13 id. 836; 15 id. 191; 18

id. 565. 60 Security to stay execution. Upon an appeal from a final judgment, taken as prescribed in this title,* the appellant may give the security, required to perfect an appeal to the court of appeals, from a judgment of the same amount, 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. Code Civ. Pro., § 1352. 16 W. D. 41; 21 id. 73; 6 Civ. Pro. 259; 8 id. 420; 13 id. 221; 15 id. 45; 40 Hun, 557; 90

N. Y. 476, 479; 19 Civ. Pro. 203; 21 id. 47; 70 Hun, 363, 33 N. Y. St. R. 209; 53 id.

812; 2 N. Y. Supp. 10, 33, 145, 194; 12 id. 145; 24 id. 69. 61 Upon what papers appeal to be heard. An appeal from a final judgment, taken as prescribed in this title, must be heard upon a certified copy of the notice of appeal, of the judgment-roll, and of the case or notice of exceptions, if any, filed, as prescribed by law, or the general rules of practice after the entry of 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, judge or justice, upon the hearing of the demurrer, application for judgment, or motion as the case requires. Unless the appellate division shall in a special case otherwise direct, before an appeal shall be placed upon the calendar, the appellant shall file with the clerk of the appellate division the case and exceptions or the other papers, upon which the appeal shall be heard, printed as required by the rules of practice; in case the appeal is from a judgment the printed case and exceptions must be ordered filed by the justice or referee before whom the case was tried. Code Civ. Pro., § 1353, as am'd L. 1895, c. 946. 85 N. Y. 353; 46 N. Y. Super. 102; 7 N. Y. St. R. 420; 40 Hun, 545; 8. c. 9 Civ. Pro. 431:

37 Hun, 276; 32 id. 216; s. c. 5 Civ. Pro. 281; 21 id. 102; 61 Hun, 1; 73 id. 377; 7 Misc. 347; 39 N. Y. St. R. 666; 50 id. 938; 55 id. 919; 58 id. 691; 60 id. 448; 6 N. Y.

Supp. 100; 8 id. 790; 15 id. 158, 391. 62 Judgment-roll after affirmance. When judgment of affirmance is rendered upon the appeal, the judgment-roll consists of a 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. Code Civ. Pro., § 1354, as am'd L. 1879, c. 542. 6 How. Pr. 462; 1 Abb. Pr. 130; 82 N. Y. 366; 5 Civ. Pro. 283, 284.

63 Hearing, etc., in the supreme court. An appeal taken to the appellate division 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, or unless appeals pending in one department are transferred for hearing and determination to another, pursuant to article six, section one, of the constitution. The order made upon the appeal must be entered in the office of the clerk of the appellate division, and a certified copy thereof with the original case or papers upon which the appeal was heard, filed as provided in section thirteen hundred and fifty-three must be transmitted by the clerk upon payment of his fees, to the clerk of the county where the judgment or order appealed from was entered, and upon such certified copy of the order and the case or papers upon which the appeal was heard, the county clerk shall enter the judgment in his office. Code Civ. Pro., § 1355, as am'd L. 1895, c. 946. 6 How. Pr. 191; 65 N. Y. St. R. 293.

* This subject, 88 54–63.

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Appeal from a Final Determination in a Special Proceeding. 64 Appeal from order made in the same court. An appeal may be taken, to the appellate division of the supreme court, from an order, affecting a substantial right, made in a special proceeding, at a special term or a trial term of the supreme court; or made by a justice thereof 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. Code Civ. Pro., § 1356, as am'd L. 1895, c. 946. 19 Barb. 657; 26 id. 176; 43 id. 280; 10 How. Pr. 168; 23 id. 256; 30 id. 276; 14 id, 511; 10

Abb. Pr. N. S. 182; 2 Abb. Pr. 368; 8. c. 12 How. Pr. 97, 98; 12 Abb. Pr. 317; 5 id. 272; 18 id. 356; 8 id. 192; 5 Abb. Pr. N. S. 96; 12 N. Y. 406; 36 id. 182; 27 id. 629; 60 id. 457; 69 id. 219; 90 id. 402, 407; 16 Hun, 57; 14 id. 93; s. c. 78 N. Y. 601; 34 Hun, 584, 585; 41 id. 9, 11; 42 id. 164; 49 id. 17; 6 Lans. 313; 70 N. Y. 5; 43 Hun, 506; 32 id. 218, 219; s. c. 5 Civ. Pro. 284; 15 id. 121; 58 Hun, 287; 69 id. 275; 74 id. 179: 76 id. 74; 63 id. 492; 81 id. 401; 29 Abb. N. C. 187; 34 N. Y. St. R. 557; 37 id. 803; 38 id. 796; 45 id. 346; 48 id. 619; 53 id. 38; 56 id. 555; 58 id. 740; 1 N. Y. Supp. 503, 763; 12

id. 318; 15 id. 63, 868; 18 id. 565; 20 id. 611; 23 id. 609; 3 App. Div. 108. 65 Idem; when made by another court or judge. An appeal may also be taken to the appellate division of 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 appellate division of the supreme court, is expressly given by statute. Code Civ. Pro., § 1357, as am'd L. 1895, c. 946. 4 Hun, 416; 33 id. 279; 41 id, 9, 11; 29 id. 47; 33 id. 202, 281; 43 id. 506; s. c. 7 N. Y. St.

R. 133; 49 Hun, 17; 90 N. Y. 402, 407; 72 id. 1: 107 id. 272, 276: 12 N. Y. St. R. 332: 16 Abb. N. C. 282, 285; 15 Civ. Pro. 121; 63 Hun, 492; 66 id. 302; 37 N. Y. St. R. 803; 38 id. 730: 45 id. 346; 49 id. 290; 4 N. Y. Supp. 933; 15 id. 29; 18 id. 565; 21 id. 62;

36 id. 400; 4 App. Div. 543. 66 When intermediate order reviewed. An appeal, authorized by this title, * brings up for review, any preceding order, made in the course of the special proceeding, involving the merits, and necessarily affecting the final order appealed from, which is specified in the notice of appeal. Code Civ. Pro., § 1358, as am'd L. 1877, c. 416. 6 N. Y. 209; 7 N. Y. St. R. 421; 9 How. Pr. 361; 6 id. 240; 1 How. Pr. N. S. 193; 53 Barb.

62; 20 W, D. 128; 26 id. 249; 43 Hun, 506; 15 N. Y. Supp. 868. 67 Within what time. An appeal, authorized by this title, * must be taken within thirty days after service of a copy of the final order, from which it is 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. Code Civ. Pro., $ 1359. 2 Abb. Pr. 209; 12 Abb. Pr. N. S. 221; 43 Hun, 506; 63 id. 492; 45 N. Y. St. R. 347; 18

N. Y. Supp. 565. 68 Security; hearing; entry, etc., of order. The provisions of title fourtht of this chapter, relating to perfecting an appeal from an order, taken as therein prescribed; to staying the execution of the order appealed from; to hearing the appeal; and to the entry and enforcement of the order made upon the appeal, apply, where an appeal is taken, as prescribed in this title, * except as otherwise specially prescribed by law. Codé Civ. Pro., § 1360. 39 Hun, 437; s. c. 23 W. D. 212; 26 Abb. N. C. 48; 37 N. Y. St. R. 803; 13 N. Y. Supp.

836; 14 id. 14. 69 This title qualified; general provisions. This title* does not confer the right to appeal from an order, in a case, where it is specially prescribed by law, that the order cannot be reviewed. The proceedings upon an appeal, taken as prescribed in this title,* are governed by the provisions of this act, and of the * This subject, $8 64–69.

† This subject, $$ 54-63.

general rules of practice, relating to an appeal in an action, except as otherwise specially prescribed by law. Code Civ. Pro., § 1361. 32 Hun, 218; 8. c. 5 Civ. Pro. 284; 128 N. Y. 93; 38 N. Y. St. R. 846; 1 N. Y. Supp. 503,

763. For earlier laws on this subject, see Birdseye's Chronological Table of Statutes, under Code of Procedure, L. 1848, c. 379, SS 233–371.

Appeals in Criminal Cases, When Allowed and How Taken. 70 Writs of error and certiorari abolished; appeal substituted. Writs of error and of certiorari in criminal actions and proceedings and special proceedings of a criminal nature, as they have heretofore existed, are abolished; and hereafter the only mode of reviewing a judgment or order in a criminal action or proceeding, or special proceeding of a criminal nature, is by appeal. Code Crim. Pro., § 515, as am'd L. 1884, c. 372. 31 Hun, 526; 21 W. D. 364; 1 N. Y. Cr. R. 456; s. c. 16 W. D. 347; 32 Hun, 536, 538; 3

N. Y. Cr. R. 286; 45 Hun, 54; 20 Abb. N. C. 298; 5 N. Y. Cr. R. 527; 109 N. Y. 413, 419; 12 N. Y. St. R. 332; 143 N. Y. 219; 62 Hun, 30; 82 id. 242; 41 N. Y. St. R. 301; 48 id. 811; 62 id. 176; 63 id. 832; 69 id. 87, 206; 10 N. Y. Supp. 910; 16 id. 325; 20 id.

577. 71 Parties how designated; title of cause. The party appealing is known as the appellant, and the adverse party as the respondent. But the title of the action is not changed, in consequence of the appeal. Code Crim. Pro., § 516.

72 Appeal by defendant. An appeal to the supreme court may be taken by the defendant from the judgment on a conviction after indictment, except that when the judgment is of death the appeal must be taken direct to the court of appeals, and, upon the appeal, any actual decision of the court in an intermediate order or proceeding forming a part of the judgment-roll, as prescribed by section four hundred and eighty-five, * may be reviewed. Code Crim. Pro., § 517, as am'd L. 1887, c. 493, § 1. 3 N. Y. Cr. R. 286; id. 443; 21 W. D. 364; 34 Hun, 260, 262; 4 N. Y. Cr. R. 341; 42 Hun,

366, 368; 21 Abb. N. C. 448; 109 N. Y. 413, 419; 128 id. 529, 629; 58 Hun, 571; 35 N. Y. St. R. 148; 38 id. 857; 40 id. 411, 481, 482; 69 id. 321; 2 N. Y. Supp. 606; 12 id.

695: 14 id. 519; 15 id, 513. 73 In what cases by the people. An appeal to the appellate division of the supreme court may be taken by the people in the following cases and no other:

1. Upon a judgment for the defendant, on a demurrer to the indictment.

2. Upon an order of the court, arresting the judgment. Code Crim. Pro., $ 518, as am'd L. 1895, c. 880. 31 Hun, 526; 42 id. 366; 44 id. 193.

74 Appeal to the court of appeals. An appeal may be taken from a judgment or order of the appellate division of the supreme court to the court of appeals in the following cases and no other:

1. From a judgment affirming or reversing a judgment of conviction;

2. From a judgment affirming or reversing a judgment for the defendant on a demurrer to the indictment, or from an order affirming, vacating, or reversing an order of the court arresting judgment;

3. From a final determination affecting a substantial right of the defendant. Code Crim. Pro., § 519, as am'd L. 1892, c. 189, and L. 1895, c. 880. 14 W. D. 125; 92 N. Y. 560, 563; 107 id. 607; 135 id. 663; 48 N. Y. St. R. 566.

75 A matter of right. All appeals, provided for in this chapter,t may be taken as a matter of right. Code Crim. Pro., § 520. 109 N. Y. 413, 419; 7 Misc. 371.

76 Time for appeal. An appeal must be taken within one year after the judgment was rendered or the order entered. Code Crim. Pro., $ 521, as am'd L. 1892, c. 189. 87 Hun, 339.

77 Notice of appeal. An appeal must be taken, by the service of a notice in writing on the clerk with whom the judgment-roll is filed, stating that the appellant appeals from the judgment. Code Crim. Pro., § 522. *Judgment, etc., & 111.

+ This subject, SS 70–87.

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78 Same: to district attorney. If the appeal be taken by the defendant a similar notice must be served on the district attorney of the county in which the original judgment was rendered. Code Crim. Pro., § 523.

79 Same: to defendant. If it be taken by the people, a similar notice must be served on the defendant, if he be a resident of, or imprisoned in the city or county; or if not, on the counsel, if any, who appeared for him on the trial, if he reside or transact his business in the county. If the service cannot, after due diligence, be made, the appellate court, upon proof thereof, may make an order for the publication of the notice, in such newspaper, and for such time as it deems proper. Code Crim. Pro., § 524. 44 Hun, 193.

80 Appeal, when perfected. At the expiration of the time appointed for the publication, on filing an affidavit of the publication, the appeal becomes perfected. Code Crim. Pro., § 525.

81. No stay on appeal by the people. An appeal taken by the people, in no case stays or affects the operation of a judgment in favor of the defendant, until the judgment is reversed. Code Crim. Pro., § 526. 44 Hun, 193.

82 Stay of proceedings on appeal, etc. An appeal to the appellate division of the supreme court from a judgment of conviction, or other determination from which an appeal can be taken, stays the execution of the judgment or determination upon filing, with the notice of appeal, a certificate of the judge who presided at the trial, or of a justice of the supreme court, that, in his opinion, there is reasonable doubt whether the judgment should stand, but not otherwise. And the appellate court may order a new trial if it be satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below. Code Crim. Pro., § 527, as an'd L. 1882, c. 360; L. 1887, c. 493, § 1, and L. 1895, c. 880. 92 N. Y. 560, 563; 12 Abb. N. C. 187; 29 Hun, 382, 387, 520, 525; 91 N. Y. 245, 249; 14

W. D. 125; 92 N. Y. 554, 557; 1 N. Y. Cr. R. 393; 3' id. 111, 116, 253; 2 id. 407, 446; 34 Hun, 260, 620; 100 N. Y. 503; 101 id. 632; 38 Hun, 418, 426; 41 id. 332, 343; 4 N. Y. Cr. R. 193, 198, 343, 345; 5 id. 15, 47, 120, 124; 9'id. 155; 44 Hun, 187, 189, 565; 46 id. 645; 107 N. Y. 414, 417; 108 id. 67, 76; 22 N. Y. St. R. 969; 125 N. Y. 740; 128 id. 585; 131 id. 321; 59 Hun, 398; 73 id. 203; '76 id. 371; 83 id. 605; 7 Misc. 371; 11 id. 141; 36 N. Y. St. R. 837; 38 id. 748; 39 id. 166; 43 id. 298; 49 id. 643; 56 id. 264; 57 id. 141; 1 N. Y. Supp. 527; 5 id. 374; 13 id. 416; 14 id. 907; 20 id. 756; 28 id. 175; 29

id. 1034; 35 id. 73. See Judgment, etc., $ 112.

83 Stay, upon appeal to court of appeals; new trial in capital cases. An appeal to the court of appeals, from a judgment of the supreme court, affirming a judgment of conviction, stays the execution of the judgment appealed from, upon filing, with the notice of appeal, a certificate of a judge of the court of appeals or of the supreme court, that in his opinion there is reasonable doubt whether the judgment should stand, but not otherwise. When the judgment is of death, an appeal to the court of appeals stays the execution of course until the determination of the appeal. When the judgment is of death, it shall be the duty of the clerk of the court in which the judgment of conviction is had, immediately after the service of the notice of appeal upon him, to transmit by special messenger to the sheriff of the county or to the agent and warden of the state prison in whose custody the defendant shall be, a certified copy of the notice of appeal with a certificate of the service thereof upon him, and take receipt therefor, which he shall immediately file in his office, and no other notice to the officer having the defendant in custody shall be required to make said stay operative. The actual and necessary expenses of the said special messenger shall be a county charge, payable out of the court fund on the certificate of the county clerk, approved and countersigned by the county judge. When the judgment is of death, the court of appeals may order a new trial, if it be satisfied that the verdict was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below. Code Crim. Pro., § 528, as am'd L. 1882, c. 360; L. 1887, c. 493, § 1, and L. 1895, c. 119. i Note. 14 W. D. 125; 92 N. Y. 554, 557; 107 id. 414; 108 id. 657; 109'id. 345, 349; 110 id. 618;

The above section was also amended by L. 1895, c. 880, but see § 4 of that act.] 117 id. 480; 125 id. 136; 128 id. 529, 629; 131 id. 651; 137 id. 517; 138 id. 398; 147 id. 80; 148 id. 476; 60 Hun, 379; 34 N. Y. St. R. 842; 36'id. 953; 39 id. 878; 40 id. 484; 50

id. 22; 52 id. 918; 69 id. 321; 15 N. Y. Supp. 512. See Judgment, etc., f 112.

84 Certificate of stay not to be granted, but on notice to district attorney. The certificate mentioned in the last two sections can not, however, be granted upon an appeal on a conviction of felony, until such notice as the judge may prescribe has been given to the district attorney of the county where the conviction was had, of the application for the certificate. But the judge may stay the execution of the judgment in the meantime. And when an application for such certificate shall have been made to and denied by the judge who presided at the trial or by a justice of the supreme court other than the one who presided at the trial, or in case of an appeal to the court of appeals by a judge of that court or a justice of the supreme court, no other application for such certificate shall be made to or entertained by any other judge or justice. Code Crim. Pro., $ 529, as am'd L. 1894, c. 502, and L. 1895, c. 880. 7 Misc. 371.

85 Effect of the stay. If the certificate, provided in sections 52 and 528, be given, the sheriff must, if the defendant be in his custody, upon being served with a copy of the order, keep the defendant in his custody, without executing the judgment, and detain him to abide the judgment upon the appeal. Code Crim. Pro., 530.

86 Same: in case execution of judgment have commenced. If, before the granting of the certificate, the execution of the judgment have commenced, the further execution thereof is suspended, and the defendant must be restored by the officer in whose custody he is, to his original custody. Code Crim. Pro., § 531.

87 Transmitting the papers to the appellate court. Upon the appeal being taken, the clerk, with whom the notice of appeal is filed, must, within ten days thereafter, without charge, transmit a copy of the notice of appeal and of the judgment-roll, as follows:

1. If the appeal be to the appellate division of the supreme court, to the clerk of the department where the appeal is to be heard.

2. If it be to the court of appeals, to the clerk of that court. Code Crim. Pro., $ 532, as' am'd L. 1895, c. 880. 73 Hun, 473; 57 N. Y. St. R. 294.

Dismissing an Appeal for Irregularity. 88 For what irregularity, and how dismissed. If the appeal be irregular in a substantial particular, but not otherwise, the court may, on any day in term, on motion of the respondent, upon five days' notice, served with copies of the papers on which the motion is founded, order it to be dismissed. Code Crim. Pro., $ 533.

89 Dismissal for want of return. The court may also, upon like motion, dismiss the appeal, if the return be not made, as provided in section 532, unless, for good cause, they enlarge the time for that purpose. Code Crim. Pro., $ 534.

Argument of the Appeal. 90 Appeal to the appellate division, how and where brought to argument. An appeal to the appellate division of the supreme court may be brought to argument by either party on ten days' notice, on any day, at a term, held in the department in which the original judgment was given. Code Crim. Pro., $ 535, as am'd L. 1884, c. 384, and L. 1895, c. 880.

91 In court of appeals. An appeal to the court of appeals may, in the same manner, be brought to argument by either party, on any day in term. Code Crim. Pro., $ 536.

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