a. From a judgment, except upon a bill of exceptions or special verdict, presenting questions of law. So held, where there was a trial before a judge, without a jury, and a case made, upon which the general term denied a new trial, which was incorporated in the record, and appealed to this court. Livingston v. Radcliff. 3 Pr. R., 417.

b. From an order of the supreme court at a general term, denying a rehearing of an order made at a special term, where the order made at special term is such as would not be reviewed by this court on appeal if confirmed by the general term. Marvin v. Seymour, 1 Code Rep., 111; 3 Pr. R., 340; 1 Coms., 535.

c. Thus, where a motion was made at a special term for an order to compel one of the complainants to appear and submit to an examination before a master to whom the cause had been referred, and was denied, and an appeal then taken to the general term, where a rehearing was denied, held, not an appealable order to this court, even if the general term had confirmed the order. Ib.

d. From an order on a rehearing at a general term of the supreme court vacating an order of reference to ascertain the amount of damages occasioned by a temporary injunction. Anon. 4 Pr. R., 80.

e. From an order setting aside a decree of divorce taken as confessed, and allowing alimony. Carpenter v. Carpenter, 2 Code Rep., 83; 4 Pr. R., 139.

f. From a decision on a motion to dissolve a temporary injunction. Vandewater v. Kelsey, 2 Code Rep., 3; 3 Pr. R., 338.

g. From the verdict of a jury upon a question of fact, upon the trial of which there is a question as to the credibility of a witness by which it is sought to be proved. Rice v. Floyd, 4 Pr. R, 27; 1 Coms., 608.

h. From an order setting aside an answer as frivolous, and that the plaintiff have judgment as for want of an answer, and a further order that the defendant submit to an examination on oath concerning his property, and the judgment to be given on the complaint. It is not the final judgment in the action. Dunham v. Nicholson, 2 Code Rep., 70; 4 Pr. R., 140.

i. From an order at special term without first being reheard at general term. Gracie v. Pierson, 3 Pr. R., 218; 1 Coms., 228.

j. On reversal by supreme court of judgment of common pleas on bill of exceptions contained in the record as an appeal under act of December, 1847. Fargo v. Brown, 3 Pr. R., 294; 1 Coms., 429.

k. From an order of the Chancellor deciding a motion to open the biddings at a master's sale. Hazleton v. Wakeman, 3 Pr. R., 457; Lord v. Peister, MS. October, 1852.

7. From an order of the supreme court at general term, reversing a judgment obtained at the circuit and ordering a new trial. Duane v. Northern R. R. Co., 3 Code Rep., 72; 4 Pr. R., 364; 3 Čoms., 545.

. From an order awarding or refusing an issue to be tried at law, and the granting or refusing a new trial. Lansing v. Russell, 4 Pr. R., 213.

n. From a decree which directs a reference for the purpose of taking an account between the parties, and for other purposes, and reserves further directions until the coming in and confirmation of the report, and then "that such further order and decree may be made thereon as shall be just." It is not a final decree. Cruger v. Douglas, 2 Code Rep., 129; 4 Pr. R., 215; Harris v. Clark, 2 Code Rep., 47; 4 Pr. R, 78; Wells v. Gibson, MS. October, 1852.

o. From an order made at the general term of the supreme court confirming an order vacating a master's or receiver's sale. It was a matter in the discretion of the court. Wakeman v. Price, 3 Code Rep., 186; 2 Coms., 334.

p. From an order made at the general term of the supreme court confirming an order which denied a motion to set aside a judgment entered on a warrant of attorney, before the code went into effect. Dunlop v. Edwards, 3 Code Rep., 197; 3 Coms., 341.

7. From a decision at the circuit on a case. So held where a case was inserted in the judgment record, and was there called a bill of exceptions, but had not in fact been turned into a bill of exceptions. King v. Dennis, 3 Pr. R., 419; 2 Coms., 189.

r. From an order of the supreme court at general term denying a motion for a stay of proceedings on a judgment, and for liberty to move to set aside a report of

referee without an appeal, or for an order extending the time to appeal. Thomas, 5 Pr. R., 359.

Enos v.

a. Where an action was commenced in a justice's court, and the proceedings discontinued by reason of title coming in question, and an action for the same cause was commenced in the old court of Common Pleas, and by operation of the law was transferred to the supreme court,-the appeal from the judgment of the supreme court, in such action was dismissed, on the ground that it was an action originally commenced in a justice's court. See Brown v. Brown, 6 Pr. R., 320; 2 Seld. 186. b. The court cannot review the decision of referees, or the judgment of a subordinate court for an error of fact merely, however clearly the decision may be against the testimony. Borst v. Spelman, 4 Coms., 284.

c. On an appeal from a judgment, the court will not review an order made at chambers, and from which no appeal has been taken to the general term of the court below. Kanouse v. Martin, 1 Code Rep., N. S. 385; 6 Pr. R., 240.

d. An order of the court below refusing to stay proceedings, until the determination of another controversy involving the same question, is not a proper subject of review in the court of appeals. James v. Chalmers, 1 Code Rep., N. S. 413.

e. A refusal of a referee to adjourn the hearing before him, where it is a matter resting in his discretion, will not be reviewed on appeal. Carpenter v. Haynes, 1 Code Rep. N. S., 414.

f. The finding of a referee on the questions, whether the plaintiff had performed his contract, and whether performance had been waived, will not be reviewed by the court of appeals on appeal from the judgment of the supreme court affirming the report of the referee; because they are questions of fact only. Newton v. Harris, 1 Code Rep. N. S., 414. And see Easterly v. Cole, 3 Coms., 502; Davis v. Allen, Ib. 168.

g. The provision allowing an appeal from a "final order affecting a substantial right, made in a special proceeding, or upon a summary application in an action after judgment," does not include an order granting or refusing a provisional remedy, nor an order vacating or refusing to vacate such provisional remedy; because such provisional remedies are not contemplated by the words, "special proceedings," in subdivision 3 of section 11 of the code. Genin v. Tompkins, 1 Code Rep. N. S. 415.

h. An appeal from a judgment on a report of referees, was dismissed on motion, the record not stating the facts as found by the court below, and there being no bill of exceptions, but simply a case setting forth all the evidence given on the trial. Colie v. Brown, 1 Code Rep, N. S., 416.

i. From a judgment of the supreme court affirming an order of a surrogate denying a motion for leave to discontinue proceedings of accounting in the matter of a guardian, and directing that the proofs be closed. Tompkins v. Soulice, 7 Pr. R., 194.

j. A motion to open biddings on a judicial sale is addressed to the discretion of the court below, and a decision on such motion cannot be appealed to the court of appeals. Lord v. Peister (Court of Appeals. Oct., 1852), 5 Mon. L. R., N. S., 309.

k. From the decision of the supreme court, on an appeal from the county court, as to locating a toll-gate. McAllister v. Albion Plank Road Co. (Court of Appeals, Oct., 1852), 5 Mon. L. R., N. S., 399.

1. Where a motion before a surrogate for leave to dismiss an application was denied there, the decision of the supreme court affirming that order is not appealable to the court of appeals; because it is not a final determination. Tompkins v. Soulice (Court of Appeals, Oct., 1852), 5 Mon. L. R., N. S., 399.

m. From an order or decree which reserves further directions until the coming in of a report thereafter to be made; because it is not a final determination of the cause. Wells v. Gibson (Court of Appeals, Oct., 1852), 5 Mon. L. R. N. S., 399. n. From the decision of the court below awarding costs against executors, and also making an extra allowance for costs; because it is a matter in the discretion of the court. Fort v. Gooding's Executors (Court of Appeals, Oct., 1852), 5 Mon. L. R., N. S., 399.

o. From an order denying a rehearing of an interlocutory decree. King v. Merchant's Exchange Co, 1 Selden, 547.

a. From an order denying leave to file exceptions to the report of a referee, after the usual time for doing so has expired. King v. Merchant's Exchange Co., 1 Selden, 547.

b. Where no exceptions to any ruling of the court were taken on the trial below, there is no question of law to be considered in the court of appeals, and therefore the case cannot be reviewed in the court of appeals. Rich v. Kimberly, (Court of Appeals, Oct. 1852), 5 Mon. L. R., N. S., 400.

e. Where no question of law is raised by the return, and questions of fact alone presented for the consideration of the court, the judgment below will be affirmed. Kendall v. Harris (Court of Appeals, Oct., 1852), 5 Mon. L. R., N. S., 400.

d. Where the exception in the case is to the whole of the judge's charge, and where some parts of the charge are correct, the exception cannot avail the party taking it. So, too, as to the refusal to charge, where the exception is to the whole refusal, and where some part of the refusal is right, the exception must fail. Davenport v. Covert (Court of Appeals, Oct., 1852), 5 Mon. L. R., N. S., 399.

e. This rule must be adhered to, because under the code nothing but an "actual determination" in the court below can be reviewed on an appeal; and unless the attention of the court below be called at the time to the point ruled or sought to have ruled, the cause may be disposed of, on appeal, on grounds which the court below did not actually determine, Watson, Jewett, and Edmonds, JJ., ib.

f. It appearing by the return to the appeal that no question of law was raised in the court below, and no exception taken to any ruling or decision of the judge or court on the trial, and it not appearing, therefore, from the record, whether the question discussed on the argument had been actually raised and finally determined in the court below, the court of appeals would not entertain such question. Barto v. Himrod (Court of Appeals, Oct., 1852), 5 Mon. L. R., N. S., 400.

g. In all cases of an appeal from a decision on a motion to set aside a report of referees, there must be a statement of facts prepared and incorporated into the record by the court below, showing to the court of appeals how the facts were found and understood in that court. And in a case where the record contained merely a special report of the referee, showing what evidence was given before him, the appeal was dismissed for the reason that no statement of facts was prepared and incorporated in the record, showing how the facts were found and understood in the court below. Geer v. Wetmore (Court of Appeals, Oct., 1852), 5 Mon. L. R., N. S., 400.

h. There can be no appeal to the court of appeals until the entry of a final order, or final judgment on an order which prevents a judgment. Thus no appeal lies from an order in proceedings for partition declaring the rights of the parties, and appointing commissioners to make partition; because it is not a final order. Beebe v. Griffing, 2 Selden, 465.

i. An order denying a motion to stay the trial of a cause until the decision of another cause, is not an order involving the merits, or necessarily affecting the judgment, and is not subject to review by the court of appeals on an appeal from the final judgment in the cause. James v. Chalmers, 2 Selden, 209.

j. If this court has the power to review a decision of the supreme court, denying an application to order an amended answer to stand as part of the pleadings in the cause, it can only be exercised after a final judgment in the action. Sackets Harbor Bank v. Burwell, 9 Pr. R., 95.

k. From an order of the Supreme Court, made at a General Term confirming the report of Commissioners to appraise the compensation to be made for land proposed to be taken under the General Railroad Act, and refusing to direct a new appraisal. Re. N. Y. Cent. R. R. Co. v. Marvin, 1 Kernan, 276.

7. "Reading the sentence (sub. 3) in connection with the other parts of the section, it is evident that it contemplates a proceeding based upon the judgment, and which assumes its validity; and this is the construction which has been put upon it by this court. Sherman v. Felt,3 Pr. R. 425; Dunlop v. Edwards, 3 Coms, 341. It is not the policy of the code to allow a review in the court of appeals of interlocutory orders in an action, unless they are such as put an end to the suit, and prevent the rendering of a judgment from which an appeal will lie, or unless there is an appeal from the judgment. Humphrey v. Chamberlain, 1 Kernan, 275. Therefore no appeal lies from an order at special term, confirmed at general

term, ordering a judgment set aside, and re-entered to give a party an opportunity to appeal. Such an order can only be reviewed, if at all, on an appeal from the judgment, ib.

a. See note to section 333.

An Appeal lies in the following cases:

b. Where the supreme court on appeal reverses the judgment or decree of a subordinate court, although further proceedings were directed to be had in the court where the suit or proceeding originated; and, therefore, where a surrogate dismissed a proceeding instituted before him to bring executors to account, and the supreme court, on appeal, reversed his decree with costs, and directed him to proceed with the account, held, that an action would lie to the court of appeals. Messerve v. Sutton, 3 Code Rep., 198; 3 Coms., 546.

c. From a decree at a general term of the supreme court reserving no questions, and nothing to be done but to compute the amount due, after the referee's report of the amount due had been confirmed. Swarthout v. Curtis, 3 Code Rep. 215; 4 Coms. 415.

d. A party against whom a judgment has been rendered in the court below, is not prevented from appealing to the court of appeals, by the fact that he has paid the judgment, unless such payment was by way of compromise and agreement to settle the controversy. Wells v. Danforth, 1 Code Rep. N. S., 415.

e. See note to section 60, post.

12. [12.] Power of court.

The court of appeals may reverse, affirm, or modify, the judgment or order appealed from, in whole or in part, and as to any or all of the parties; and its judgment shall be remitted to the court below, to be enforced according to law.

f. This court cannot review those parts of a decree of the court below not appealed from. Robertson v. Bullions, 1 Kernan, 243, citing and approving Kelsey v. Western, 2 Coms. 500.

g. The court will not reverse a judgment overruling a demurrer, where the defect in the pleading demurred to was formal and technical merely, and should have been amended by the court below. McCormack v. Pickering, 4 Coms. 276. A judgment ought not to be reversed on the ground, merely, that the court below neglected to make a formal amendment, which might and ought to have been made. Ib. 282.

h. In the report of McFarlan v. Watson, 4 Pr. R., 128; 2 Code Rep. 69, it is said to have been decided by the court of appeals, that a remittitur sending the proceedings to the court below, was not authorized on the dismissal of an appeal, and that a remittitur was to be made only in cases where the court gave judgment (of affirmance or reversal or any modification of the judgment or decree of the court be low, as the case may be) upon the merits. That case was, however, afterwards alluded to as being incorrectly reported in that respect (4 Pr. R. 184, and post). On an appeal taken to the court of appeals in September, 1848, the appellant not having served a case in compliance with the 7th rule of that court, which took effect on the 1st of July, 1849, the respondent, on August 14, 1849, entered an order dismissing the appeal, with costs. The cause was remitted to the court below. On motion to set aside such order, the court on denying the motion, held, that the 7th rule applied to appeals pending prior to the adoption of that rule, and said, "After a return has been filed, any order made which finally disposes of the appeal, whether upon the merits or not, it is proper to remit the proceedings to the court below. It is a mistake to suppose the court held otherwise in McFarlan v. Watson."

i. Where an appeal was on the calendar and dismissed for a defect in the undertaking, it was held the proceedings might be remitted, and the court said, "We were entirely misunderstood in McFarlan v. Watson." Langley v. Warner, 2 Code Rep, 97.

a. "After a cause has been regularly remitted to the court below, this court has no jurisdiction to grant relief. The only remedy is a new appeal. Newton v. Harris, 1 Code Rep., N. S. 191; 8 Barb. 603."

b. Where too much costs are charged in such a case, the remedy is by motion to the court below. Dresser v. Brooks, 2 Code Rep., 130; 4 Pr. R., 207.

c. A remittitur cannot be made on the dismissal of an appeal under rule 2 of the court of appeals, for the reason that no return has been filed; for if no return be filed there is nothing to remit. 4 Pr. R., 211, note-See Rules in the Court of Appeals in the appendix. In Doty v. Brown, 4 Pr. R., 429; 2 Code Rep., 3, where the plaintiff appealed to the court of appeals, but the bill of exceptions was alone returned to the court of appeals, without the judgment record, aud on the motion of the defendant the appeal was dismissed for that cause, it was objected in the court below (the supreme court), that this section did not authorize a remittitur in such a case; but the court (Mason, J.), said, "The determination of this question depends on the construction of this (12th) section; and the court of appeals have held in two cases, that a remittitur is authorized, and hence adjudged the very question in the case under consideration, and which it ill becomes this court to review."

d. After remittitur filed in the court below, the court of appeals has no further jurisdiction of the cause, and a motion in such a case for an amendment of the judgment, should be made in the court below. Frazer v. Western, 3 Pr. R., 235; Martin v. Wilson, 1 Coms. 240; but the court does not lose jurisdiction until the remittitur is actually filed, as, until that be done, the court can order the remittitur to be sent back so as to restore jurisdiction. Burckle v. Luce, 3 Pr. R., 236. See also Dresser v. Brooks, 2 Code Rep., 130; 4 Pr. R., 207.

e. After an action has been remitted to the court below, and the remittitur filed, the court below will not, and cannot, entertain a motion to re-remit the remittitur to the appellate court, in order that a motion may there be made to amend alleged errors of that court. Selden v. Vermilya, 3 Sand., 683; 6 Pr. R., 41. Although where an appeal is regularly dismissed, and the remittitur sent down, the appellate court loses all control over the cause; yet where an order dismissing an appeal is irregularly obtained, or entered upon a false or garbled affidavit, the appellate court will doubtless graut relief by vacating the order of dismissal; but, so long as the order of the appellate court dismissing the appeal stands, the court below is bound by it, and has no power to make an order impairing its force. Newton v. Harris, í Code Rep. N. S., 191; 8 Barb., 603.

f. In an unreported case, where the respondent obtained an order dismissing an appeal, on what the appellant considered a garbled affidavit, the court below granted an order staying proceedings on the judgment until the decision of a motion in the appellate court to set aside the order. The motion was noticed, and entertained by the court of appeals.

Form of Remittitur.

g. The remittitur in cases of affirmance of the judgment, ordinarily contains a clause in these words, " And it is further ordered and adjudged, that the respond. ent recover against the appellant his costs of appeal in this court, and also interest on the amount of the judginent of the court (the court below), by

way of damages, for the delay and vexation caused by the bringing the appeal in

this cause."

h. For the form of the remittitur and manner of proceeding, where a decree or order is affirmed or reversed by default, see Rules 16 and 17 of Court of Appeals Rules, in Appendix.

Double Interest.

i. In Hoard v. Garner, 4 Sand., 677, there was an appeal from a judgment of the superior court, the judgment was affirmed, and the remittitur contained the above clause. The amount of the judgment and interest had been paid, but the respondent claimed, besides his costs on the appeal, a sum equal to the interest on the amount of the judgment. Oakley, Ch. J., with the concurrence of all the justices of the superior court, said: We have come to the conclusion, not to allow double interest. "It is argued, that as interest is now recoverable on all judgments, this clause in the remittitur is nugatory unless it have the effect to give double interest, and so we consider it."