§ 1348. [Am'd, 1895.] Id.; when made out of court; powers of appellate division to grant orders. An appeal may also be taken to the appellate division of the supreme court, from an order, made in an action, upon notice. by a judge or justice, 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. The appellate division shall have power to vacate or modify, without notice, or upon such notice as it shall deem proper, any order in an action or special proceeding made by a justice of the supreme court or by the court without notice to the adverse party; it may grant a stay of proceedings upon any judgment or order of the supreme court from which an appeal is pending, and may grant any order or provisional remedy which has been applied for without notice to the adverse party, and refused by the supreme court or a justice thereof. From Co. Proc., § 350. Am'd by L. 1895, c. 946 (in effect Jan. 1, 1896). § 1349. [Am'd, 1893, 1895.] Appeal from interlocutory judg ment. An appeal may also be taken to the appellate division of the supreme court, from an interlocutory judgment rendered at a special term or trial term of the supreme court, or entered upon the report of a referee. From Co. Proc.. § 349, subd. 2. Am'd by L. 1893, c. 641; L. 1895, c. 946 (in effect Jan. 1, 1896). § 1350. [Am'd, 1895.] Appeal from final judgment, after affirmance of interlocutory judgment, or denial of new trial. Review in the court of appeals. Where final judgment is taken, at a special term or trial term, or pursuant to the directions of a referee, after the affirmance. upon an appeal to the appellate division of the supreme court of an interlocutory judgment; or after the refusal by the appellate division of a new trial, either upon an application, made. in the first instance, at a term of the appellate division, or upon an appeal from an order of the special term, or of the judge, before whom the issues, or questions of fact, were tried by a jury; an appeal to the appellate division from the final judgment brings up, for review, only 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 appellate division upon the appeal from the final judgment, the determination of the appellate division, 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-appealtherefrom, notwithstanding the expiration of the time to take an original appeal therefrom. New. Am'd by L. 1895, c. 946 (in effect Jan. 1, 1896). § 1351. [Am'd, 1895, 1903.] Limitation of time; order to stay proceedings. An appeal, authorized by this title, must be taken, within thirty days after service, upon the attorney for the appellant, of a copy of the judgment or order appealed from, and a written notice of the 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 appellate division of the supreme court 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. Execution of a judgment for the recovery of money only shall not be stayed without security for more than thirty days after the service upon the attorney for the appellant of a copy of the judgment and written notice of the entry thereof. From Co. Proc., §§ 332, 348, 350. Am'd by L. 1895, c. 946; L. 1906, c. 238 (in effect Sept. 1, 1903). § 1352. Stay of proceedings without order. 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. From Co. Proc., § 348. § 1353. [Am'd, 1895.] 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. New. Am'd by L. 1895, c. 946 (in effect Jan. 1, 1896). § 1354. [Am'd, 1879.] Entry of judgment or order; judgmentroll. Where judgment of affirmance is rendered upon the appeal, the judgment-rol! 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. New. Am'd by L. 1879, c. 542. § 1355. [Am'd, 1895.] 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 2. 12, tit. 4 from is entered; unless an order is made, as prescribed in section 231 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 1353 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. See Co. Proc., §§ 347, 348. 24 Am'd by L. 1895, c. 946 (in effect Jan. 1, 1896). 369 TITLE V. Appeal from a determination in a special proceeding. Sec. 1356. Appeal from order made in the same court. 1357. Id.; when made by another court or judge. 1359. Limitation of time to appeal. 1360. Stay of proceedings; hearing of appeal; decision thereupon. Application of provisions relating to actions. § 1356. [Am'd, 1895, 1913.) 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. An appeal may also be taken to the appellate division of the supreme court from an order granting or denying an application for an alternative writ of mandamus or an alternative writ of prohibition. From L. 1854, c. 270, § 1. Am'd by L. 1895, c. 946; L. 1913, c. 572 (in effect Sept. 1, 1913). 1357. [Am'd, 1895.] Id.; 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. See Co. Proc., § 344. Am'd by L. 1895, c. 946 (in effect Jan. 1, 1896). § 1358. [Am'd, 1877.] Preceding order may be 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. From Co. Proc., § 329. Am'd by L. 1877, c. 416. § 1359. Limitation of time to appeal. 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. From Co. Proc., § 332. 1360. Stay of proceedings; hearing of appeal; decision thereupon. The provisions of title fourth 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. Now. Application of provisions { 1361. This title qualified. relating to actions. 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 general rules of practice, relating to an appeal in an action, except as otherwise specially prescribed by law. New. 371 |