92 Notice of argument.

If a counsel, within five days after the appeal, have given notice to the district attorney, that he appears for the defendant, notice of argument must be served on him, instead of the defendant; otherwise, notice must be served as the court may direct. Code Crim. Pro., § 537.

93 Papers, by whom furnished. When the appeal is called for argument, the appellant must furnish the court with copies of the notice of appeal and judgment-roll, except where the judgment is of death. If he fail so to do, the appeal must be dismissed, unless the court otherwise direct. Code Crim. Pro., § 538, as am'd L. 1887, c. 493, § 1.

See Judgment, etc., § 112.

94 Argument, when necessary. Judgment of affirmance may be given, without argument, if the appellant fail to appear. But judgment of reversal can only be given upon argument, though the respondent fail to appear. Code Crim. Pro., $539.

44 Hun, 233, 235.

95 Number of counsel; defendant's counsel to close. Upon the argument of the appeal, if the crime be punishable with death, two counsel on each side must be heard if they require it. In any other case, the court may, in its discretion, restrict the argument to one counsel on each side. The counsel for the defendant is entitled to the closing argument. Code Crim. Pro., § 540.

96 Defendant need not be present. The defendant need not personally appear in the appellate court. Code Crim. Pro., § 541.

57 How. Pr. 81.

Judgment upon Appeal.

97 Court to disregard errors not affecting substantial rights. After hearing the appeal, the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties. Code Crim. Pro., § 542.

5 Hill, 32; 34 Hun, 260; 8 Abb. Pr. 137; 5 Wend. 289; 31 Hun, 614, 360; 26 N. Y. 642; 103 id. 487; 7 N. Y. St. R. 217; 27 Hun, 469, 471; 66 How. Pr. 130; 33 Hun, 296, 300; 34 id. 260; 102 N. Y. 672; 4 N. Y. Cr. R. 207, 214; 5 id. 10, 23, 75, 120, 123, 355, 371; 103 N. Y. 213, 487, 500; 104 id. 213; 45 Hun, 460, 499; 21 Abb. N. C. 419, 433, 435, 436, 449; 107 N. Y. 1, 12; 126 id. 249; 128 id. 585; 131 id. 659; 137 id. 517; 140 id. 87; 143 id. 455; 65 Hun, 77; 68 id. 11; 71 id. 601; 73 id. 203; 77 id. 498: 79 id. 310; 80 id. 40; 83 id. 303; 91 id. 629; 36 N. Y. St. R. 77, 954; 37 id. 661; 38 id. 754; 39 id. 832; 43 id. 297, 775; 45 id. 520, 916; 46 id. 415; 47 id. 346; 51 id. 228, 805, 814; 52 id. 239; 49 id. 501; 55 id. 108, 459; 57 id. 141; 60 id. 549; 61 id. 47, 528; 62 id. 840; 1 N. Y. Supp. 160; 6 id. 222; 9 id. 686; 13 id. 27; 14 id. 234; 15 id. 366; 19 id. 551, 937; 20 id. 731; 22 id. 269, 296, 635; 24 id. 1115.

98 May reverse, affirm, or modify. Upon hearing the appeal the appellate court may, in cases where an erroneous judgment has been entered upon a lawful verdict, correct the judgment to conform to the verdict, in all other cases they must either reverse or affirm the judgment appealed from, and in cases of reversal, may, if necessary or proper, order a new trial. Code Crim. Pro., § 543.

27 Hun, 595; 2 N. Y. Cr. R. 428, 430; 38 Hun, 280, 282; 43 id. 397, 408; 109 N. Y. 413; 67 Hun, 546.

99

New trial.

When a new trial is ordered, it shall proceed in all respects as if no trial had been had. Code Crim. Pro., § 544.

109 N. Y. 413; 43 Hun, 397, 409: 59 id. 398; 36 N. Y. St. R. 837; 54 id. 455; 13 N. Y. Supp. 416; 65 N. Y. St. R. 669, 679, 681.

100 Effect of reversal when new trial not ordered. If a judgment against the defendant be reversed, without ordering a new trial, the appellate court must direct, if he be in custody, that he be discharged therefrom, or if he be admitted to bail, that his bail be exonerated, or if money be deposited instead of bail, that it be refunded to the defendant. Code Crim. Pro., § 545.

4 N. Y. Cr. R. 591, 596; 73 Hun, 473; 26 N. Y. Supp. 331.

101 Effect of affirmance in whole or part against the defendant. On a judgment of affirmance against the defendant, the original judgment must be carried into execution as the appellate court may direct, and if the defendant be at large, a bench warrant may be issued for his arrest. If a judgment be corrected,

the corrected judgment must be carried into execution as the appellate court may direct. Code Crim. Pro., § 546, as am'd L. 1882, c. 360.

102 Judgment of appellate court, how entered and remitted. When the judgment of the appellate court is given, it must be entered in the judgment book, and a certified copy of the entry forthwith remitted to the clerk with whom the original judgment-roll is filed, or, if a new trial be ordered in another county, to the clerk of that county, unless the judgment be rendered in the absence of the adverse party, in which case, the court may direct it to be retained, not exceeding ten days. Code Civ. Pro., § 547.

67 Hun, 182; 73 id. 473; 64 id. 72; 65 id. 331; 77 id. 498; 79 id. 584; 80 id. 40; 85 id. 43, 130, 138: 92 id. 50, 184; 36 N. Y. St. R. 77; 45 id. 916; 55 id. 110; 57 id. 294; 60 id. 549; 61 id. 529, 584; 2 N. Y. Supp. 605; 6 id. 765; 7 id. 716; 9 id. 686; 19 id. 937; 21 id. 137; 22 id. 96.

103 Form, etc., of remittitur.

The decision of the court and the return shall

be remitted to the court below in the same form and manner as in civil actions. Code Crim. Pro., § 548, as am'd L. 1884, c. 505.

42 Hun, 366, 368; 67 id. 182; 73 id. 473; 64 id. 72; 65 id. 331; 79 id. 584; 36 N. Y. St. R. 77; 45 id. 916; 57 id. 294; 61 id. 584; 6 N. Y. Supp. 765; 7 id. 716; 9 id. 686; 19 id. 937; 21 id. 137; 22 id. 96.

See Court of Appeals, § 4.

104 When jurisdiction of appellate court ceases. After the certificate of the judgment has been remitted as provided in section 547, the appellate court has no further jurisdiction of the appeal, or of the proceedings thereon; and all orders, which may be necessary to carry the judgment into effect, must be made by the court to which the certificate is remitted, or by any court to which the cause may thereafter be removed. Code Crim. Pro., § 549.

42 Hun, 366, 368; 71 id. 601; 73 id. 473; 92 id. 50; 57 N. Y. St. R. 294; 2 N. Y. Supp. 605; 24 id. 1115.

Appeals from Courts of Special Sessions, etc.

105 Review on appeal from minor courts. A judgment upon conviction, rendered by a court of special sessions, police court, police magistrate, or justice of the peace, in any criminal action or proceedings or special proceeding of a criminal nature, including a judgment of commitment made under section two hundred and ninety-one of the penal code, may be reviewed by the county court of the county, upon an appeal as prescribed by this title, and not otherwise; and any appeals heretofore taken and allowed from a judgment of any police court or police magistrate in the manner that appeals are directed to be taken and allowed by this title, and now pending undetermined in any court of this state, are hereby declared to be legal and valid and of the same force and effect as if taken after the passage of this act. An appeal from a judgment of commitment made under section two hundred and ninety-one of the penal code may be allowed to any person having, previous to such commitment, a right to the custody of the child; but upon such appeal, in addition to the notice and papers required by this title to be served on appeals in criminal actions, notice of all proceedings and copies of the affidavit and allowance of appeal therein must be served upon the institution named in the commitment, and upon the society mentioned in section two hundred and ninety-three of the penal code, if there be one within the county. Such institution and society, or either, shall have the right to move, to argue, or dismiss and to be heard upon the argument of such appeal; and shall have the like right to appeal from the judgment of the county court of the county to the supreme court as is conferred by section seven hundred and seventy of this code upon a defendant, and to the court of appeals by section five hundred and nineteen of this code; and pending any appeal and until the final determination thereof the child named in the commitment must remain in the custody of the institution therein specified. Code Crim. Pro., § 749, as am'd L. 1884, c. 372, § 2, and L. 1890, c. 39, and L. 1895, c. 880.

45 Hun, 54; 20 Abb. N. C. 298, 302; 65 Hun, 560; 48 N. Y. St. R. 811; 69 id. 206; 7 N. Y. Supp. 724; 10 id. 910.

106 Appeal; for what causes allowed. An appeal may be allowed for an erroneous decision or determination of law or fact upon the trial. Code Crim. Pro., § 750, as am'd L. 1882, c. 360.

34 How. Pr. 347.

107 Appeal, how taken. For the purpose of appealing, the defendant, or some one on his behalf, must within ten days after the judgment, or within twenty days after the commitment where the appeal is from the latter, make an affidavit stating the fact showing the alleged errors in the proceedings or conviction or commitment complained of, and must within that time present it to the county judge or a justice of the supreme court, or in the city and county of New York, to the recorder or a judge authorized to hold a court of general sessions in that city, and may apply thereon for the allowance of the appeal. Code Crim. Pro., § 751, as ar'd L. 1890, c. 39.

39 Hun, 476; 43 id. 55; 69 id. 550; 88 id. 306; 53 N. Y. St. R. 305; 68 id. 585; 23 N. Y. Supp. 705, 708, 942.

108 How allowed. If, in the opinion of the judge, it is proper that the question arising on the appeal should be decided by the county court, he must indorse on the affidavit an allowance of the appeal to that court. Code Crim. Pro., § 752, as am'd L. 1895, c. 880.

39 Hun, 476; 69 id. 550; 53 N. Y. St. R. 305; 23 N. Y. Supp. 943.

109 Release on bail pending an appeal. Upon allowing the appeal, if satisfied that there is a reasonable doubt whether the conviction should stand, but not otherwise, the judge may take from the defendant, a written undertaking, with such sureties as he may approve, that the defendant will abide the judgment of the county court upon the appeal, and may thereupon order that he be discharged from imprisonment, on service of the order upon the officer having him in custody, or if he be not in custody, that all proceedings on the judgment be stayed. Code Crim. Pro., § 753, as am'd L. 1892, c. 279, § 8, and L. 1895, c. 880. 110 Undertaking, when and with whom filed. The undertaking upon the appeal must be immediately filed with the county clerk of the county court. Code Crim. Pro., § 754, as am'd L. 1895, c. 880.

111 Delivery of affidavit, and allowance of appeal. The affidavit and allowance of the appeal must be delivered to the magistrate, or clerk of the court rendering the judgment, within five days after the allowance of the appeal; and when so delivered the appeal is deemed taken. Code Crim. Pro., § 755, as am'd L. 1890, c. 39.

112 Return, when and how made. The magistrate or court rendering the judgment, must make a return to all the matters stated in the affidavit, and must cause the affidavit and return to be filed in the office of the county clerk within ten days after the service of the affidavit and allowance of the appeal. Code Crim. Pro., § 756, as am'd L. 1895, c. 880.

43 Hun, 55; 53 N. Y. St. R. 305; 23 N. Y. Supp. 705, 708, 943.

113 Compelling return. If the return be not made within the time prescribed in the last section, the county court, or the judge thereof, may order that a return be made within a specified time which may be deemed reasonable; and the court may, by attachment, compel a compliance with the order. Code Crim. Pro., § 757, as am'd L. 1895, c. 880.

114 Ordering amended return. If the return be defective, a further or amended return may be ordered, and the order may be enforced in the manner provided in the last section. Code Crim. Pro., § 758.

15 N. Y. Supp. 438.

115 Appeal, how brought to argument. When the return is made, the appeal may be brought to argument by the defendant, on any day in term, upon a notice of not less than five days before the term, to the district attorney of the county. Code Crim. Pro., § 759.

116 If not brought to argument, to be dismissed, unless continued. If the defendant omit to bring the appeal to argument, as provided in the last section,

the court must dismiss it, unless it continue the same, by special order, for cause shown. Code Crim. Pro., § 760.

117 Service of return on district attorney, and consequences of failure. The defendant must serve upon the district attorney, a copy of the return, with or before the notice of argument. If he fail to do so, the appeal must be dismissed, upon proof of the failure, unless the court otherwise direct. Code Crim. Pro., § 761.

118 When appeal must be argued. If the appeal be brought to hearing by the defendant, it must be argued, though no one appear to oppose; but if brought on by the district attorney, he may take judgment of affirmance, unless the defendant appear to argue the appeal. Code Crim. Pro., § 762.

119 Appeal to be heard on original return. The appeal must be heard upon the original return; and no copy thereof need be furnished for the use of the court. Code Crim. Pro., § 763.

120 What judgment may be rendered. After hearing the appeal the court must give judgment without regard to technical errors or defects which have not prejudiced the substantial rights of the defendants, and may render the judgment which the court below should have rendered, or may, according to the justice of the case affirm or reverse the judgment, in whole or in part, as to all or any of the defendants, if there be more than one, or may order a new trial, or may modify the sentence. Code Crim. Pro., § 764, as am'd L. 1882,

c. 360.

38 Hun, 282; 5 N. Y. Cr. R. 39; 62 Hun, 84; 85 id. 138; 41 N. Y. St. R. 449; 65 id. 669; 1 N. Y. Supp. 723; 3 id. 161, 537; 7 id. 776; 9 id. 686; 16 id. 695. 121 Judgment to be entered on the minutes. the appeal, it must be entered upon the minutes.

When judgment is given upon
Code Crim. Pro., § 765.

122 Order upon judgment for affirmance. If the judgment be affirmed, the court must direct its execution, and if the defendant have been discharged on bail, after the commencement of the execution of a judgment of imprisonment, must commit him to the proper custody for the remainder of his term of imprisonment. Code Crim. Pro., § 766.

123 Order upon judgment of reversal. If the judgment be reversed, and the defendant be imprisoned in pursuance of the judgment of the police court, the county court must order him to be discharged. Code Crim. Pro., § 767, as am'd L. 1895, c. 880.

1 N. Y. Cr. R. 443, 446.

124 If new trial ordered; to be had in court of session, etc. If a new trial be ordered, it must be had in the county court in the same manner as upon an issue of fact on an indictment; and that court may proceed to judgment and execution, as in an action prosecuted by indictment. But where the appeal was from a judgment of commitment made under section two hundred and ninety-one of the penal code, the new trial shall be had before the county court without a jury. Code Crim. Pro., § 768, as am'd L. 1890, c. 39, and L. 1895, c. 880.

79 Hun, 415; 61 N. Y. St. R. 348.

125 Proceedings to carry judgment upon appeal into effect, to be had in county court. If any proceeding be necessary to carry the judgment upon the appeal into effect, they must be had in the county court. Code Crim. Pro., § 769, as am'd L. 1895, c. 880.

126 On judgment of county court defendant may appeal to appellate division. If the judgment on the appeal be against the defendant he may appeal therefrom to the appellate division of the supreme court, in the same manner as from a judgment in an action prosecuted by indictment, and may be admitted to bail upon the appeal, in like manner. Code Crim. Pro., § 770, as am'd L. 1895, c. 880.

1 N. Y. Cr. R. 443, 447; 44 Hun, 193.

127 Judgment of supreme court upon appeal, final. The judgment of the appellate division of the supreme court upon the appeal is final; except that where the original appeal was from a judgment of commitment of a child, either party may appeal to the court of appeals in like manner as a defendant under section five hundred and nineteen of this code. Code Crim. Pro., § 771, as am'd L. 1890, c. 39, and L. 1895, c. 880.

39 Hun, 476, 478; 44 id. 193.

128 Proceedings to carry into effect judgment of supreme court. The same proceedings must be had, to carry into effect the judgment of the appellate division of the supreme court upon the appeal, as if it had been taken upon a judgment in an action prosecuted by indictment. Code Crim. Pro., § 772, as am'd L. 1895,

c. 880.

62 Hun, 84; 41 N. Y. St. R. 449; 16 N. Y. Supp. 695.

AFFECTING LIMITATIONS; see Executions, § 21; Judgment, etc., § 55.

FROM ARBITRATORS; see Arbitrations, § 17; State Board of Mediation, etc., §§ 3, 6.

BAIL PENDING; see Arrest, §§ 117, 118, 145-147.

FROM BOARD OF CLAIMS; see Board of Claims, §§ 11, 12, 19.

FROM CANAL APPRAISERS; see Board of Claims, §§ 24, 25.

CASE AND EXCEPTIONS ON; see Exceptions; Service of Papers, § 1; Stenographers, § 30. FROM CITY COURT OF YONKERS; see Yonkers, § 57.

COSTS ON; see Costs, §§ 32-34, 46.

TO COURT OF APPEALS; see Court of Appeals.

EXTENDING TIME TO TAKE; see Time, SS 5, 6.

FORMER, CONFIRMED; see Code of Civil Procedure, § 7.

TO AND FROM GENERAL TERM OF CITY COURT OF NEW YORK; see New York, §§ 59-65. FROM HEALTH OFFICER; see Public Health Law, § 125.

JUDGE, WHEN DISQUALIFIED TO HEAR; see Judges, § 3.

FROM JUSTICES OF THE PEACE; see County Courts, § 23; Justices' Courts, §§ 188-217, 231, 238, 242, 258; New York, § 73.

FROM ORDER OF ANOTHER COURT; see Motions, etc., § 8.

LICENSE OF DENTIST RESTORED BY REVERSAL OF CONVICTION; See Public Health Law, § 162. BY POOR PERSON; see Parties, § 21.

PREFERENCE OF; see Preferred, etc., Causes.

REVIEW, WHEN ONLY METHOD OF; see Certiorari, § 4.

FROM STATE BOARD OF AUDIT; see State Funds, § 195.

STAY ON; See Motions, etc., § 9; Villages, § 148.

FROM SUPERINTENDENT OF THE POOR; see Poor Law, SS 44, 46, 49.

FROM SURROGATES' COURTS; see Children, § 55; Executors, etc., §§ 132, 154; Surrogates' Courts, 3, 69, 73, 76, 81-103; Wills, § 49.

SUSPENDING LIEN OF JUDGMENT ON; see Judgment, etc., §§ 56-59.

FROM TOWN AUDITORS; see Town Law, §§ 163, 164.

Appeals in Particular Cases.

ALTERATION OF RAILROAD ROUTE; see Railroad Law, § 6.

ASSESSMENT FOR SEWERS; see Villages, § 52.

ASSESSMENT FOR STREET IMPROVEMENT; see Villages, §§ 136, 138.
IN BASTARDY PROCEEDING; see Bastardy, SS 24-42.

BUILDING BRIDGES; see Highway Law, §§ 141–143.

CLAIM OF CREDITOR OF CORPORATION; see Corporation Law, § 160.
CLAIM TO PROCEEDS OF VESSEL; see Shipping, § 24.

CLOSING UP CORPORATIONS; see Corporation Law, § 164.

COMMITMENT OF LUNATIC; see Insanity Law, § 63.

COMMON SCHOOLS; see Consolidated School Law, §§ 75, 257-259, 265.

CONDEMNING LAND; see Condemnation Law; Drainage, §§ 27, 31, 52, 54, 56; Railroad Law, §§ 7, 133; Villages, §§ 45, subd. 29, 180, subd. 8.

DAMAGES ON INJUNCTION; see Injunction, § 22.

DOWER; see Dower, § 21.

DRAINAGE; see Drainage, §§ 5, 6, 10-12, 19, 21.

ELECTIONS; See Military Code, § 58; Villages, SS 13-17.

EMIGRANT BOARDING-HOUSE KEEPERS; see Emigrants, § 85.

FRIVOLOUS PLEADING; see Pleadings, § 60.

HIGHWAYS, LAYING OUT, ETC.; see Highway Law, §§ 36, 89, 119.

JUDGMENT OF OUTLAWRY; see Outlawry, SS 9-11.

AS TO LIQUOR TAX CERTIFICATE; see Liquor Tax Law, § 28.

MECHANIC'S LIEN, ACTION TO ENFORCE; see Mechanics' Liens, §§ 8, 27, 43.

UNDER MILITARY CODE; see Military Code, §§ 124, 213, 228, 237.

AS TO MUNICIPAL BONDS; see Municipal Law, $ 39.

REMOVAL OF RECEIVER: see Corporation Law, & 140.

SETTING ASIDE EXECUTION SALE; see Executions, § 81.