§§ 68-69b of the supreme court from an order granting or denying an application for an alternative writ of mandamus or an alternative writ of prohibition.]

Jurisdiction of appellate division on appeal from

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.

Such 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. [Note 2247.]

§ 68. An appeal [may also] cannot be taken to the appellate division of the supreme court, from [an] a decision in the nature of the present interlocutory judgment rendered at a special term or interlocutory trial term of the supreme court, or entered upon the report of a judgment referee but such a decision shall be reviewed on the appeal from the udgment. [Note 2248.]

Jurisdiction on appeal from in

ferior court

Jurisdiction on appeal

from inferior courts of Buffalo

Jurisdiction on appeal from judgment after decision of interlocutory

matter

§ 69. [Except appeals from inferior and local courts heretofore heard in the court of common pleas for the city and county of New York, and the superior court of Buffalo,] An appeal may be taken to the appellate division of the supreme court, from a final judgment rendered by a county court, or by any other court of record possessing original jurisdiction, or an order affecting a substantial right made by the court or a judge in an action brought in or taken by appeal to a court specified in this section, where an appeal therefrom to a court other than the supreme court, is not expressly given by statute. [Note 2249.]

§ 69a. Appeals from inferior courts heretofore heard by the superior court of Buffalo shall be heard by the appellate division of the supreme court in the fourth judicial department or by such justice or justices of the appellate division of said department. [Note 2250.]

§ 69b. 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] a decision in the nature of the present 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

APPELLATE DIVISION

307

take the [final] judgment, or upon which the [final] judgment §§ 69c-69f was taken, including the hearing or trial of the other issues in the action, if any. [Note 2251.]

division on

869c. Upon an appeal from a judgment of an order, the appellate Jurisdiction division of the supreme court, [or appellate term,] to which the of appellate appeal is taken, may reverse or affirm, wholly or partly or may appeal modify, the judgment or order appealed from, and each interlocutory [judgment] or intermediate decision or order, which it is authorized to review, as specified in the notice of appeal, and as to any or all of the parties. It shall thereupon render judgment of affirmance, judgment of reversal and [final] judgment upon the right of any or all of the parties, or judgment of modification thereon, according to law, except where it may be necessary or proper to grant a new trial or hearing, when it may grant a new trial or hearing. When a trial has been before a jury, the judgment of the appellate court must be rendered either upon special findings of the jury or the general verdict, or upon a motion to dismiss the complaint or to direct a verdict. 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. 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. [Note 2252.]

division

§ 69d. An appeal taken to the appellate division [of the supreme Hearing in court, as prescribed in this title, must be heard in the depart- appellate ment, embracing the county, in which the judgment or order appealed 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. [Note 2253.]

§ 69e. Where in any case four justices of the appellate division in any department are not qualified to sit therein, or where the justices qualified to hear the appeal are equally divided, the court must direct the same to be sent to another department to be specified in the order to be there heard and determined. Where in any case when an appeal to the appellate division of any department comes on for argument, and the justice before whom the action was tried or who granted the order appealed from, is a member of such appellate division, the appellant may make an application to such appellate division for, and the court may grant, an order directing that such appeal be sent to an adjoining department to be specified in the order, to be there heard and determined. [Note 2254.]

Removal of appeal to

another department

§ 69f. No justice of the appellate division shall exercise any Power of of the powers of a justice of the supreme court, other than those justice of of a justice out of court, and those pertaining to the appellate division appellate or to the hearing and decision of motions submitted by consent of counsel. [Note 2255.]

division

§§ 84a-130

Calendar of appellate division

Proceeding in court below upon decision of appellate division

Vacation or modification of order by appellate division

Stay by appellate division

Provisional remedy by appellate division

Jurisdiction

of appellate term on appeal

§ 84a. The clerk shall prepare a calendar for the appellate division, and, except in the first department, cause the same to be printed for each of the justices holding the court. Appeals shall be placed on the calendar, according to the date of the service of the notice of appeal; and all subsequent enumerated appeals in the same cause shall be put on the calendar as of the date of the first appeal; and other cases as of the time when the question to be reviewed arose. Appeals in non-enumerated motions shall also be placed upon a separate calendar. Cases entitled to preference shall be placed separately on the calendar. [Note 2256.]

§ 117. The filing in the county clerk's office of the judgment-roll or the entry of the order[, as prescribed in this section], upon a decision of the appellate division, is a sufficient authority for any proceeding in the court below or before the judge or justice who made the order appealed from, which the judgment or order of the appellate court directs or permits. [Note 2257.]

§ 118. 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. [Note 2258.]

§ 119. The appellate division [it] may grant a stay of proceedings upon any judgment or order of the supreme court from which an appeal is pending. [Note 2259.]

§ 120. The appellate division [and] may grant any order or [provisional] anticipatory remedy which has been applied for without notice to the adverse party, and refused by the supreme court or a justice thereof. [Note 2260.]

ARTICLE 4A

Appellate Term

§ 130. Upon an appeal from a judgment or an order, the [appellate division of the supreme court, or] appellate 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 decision or order, which it is authorized to review, as specified in the notice of appeal, and as to any or all of the parties. It shall thereupon render judgment of affirmance, judgment of reversal and [final] judgment upon the right of any or all of the parties, or judgment of modification thereon, according to law, except where it may be necessary or proper to grant a new trial or hearing, when it may grant a new trial or hearing. When a trial has been before a jury, the judgment of the appellate court must be rendered either upon special findings of the jury or the general verdict, or upon a motion to dismiss the complaint or to direct a verdict. A judgment, affirming wholly or partly a judg

SUPREME COURT

ment, from which an appeal has been taken, shall not, expressly §§ 131and in terms, award to the respondent a sum of money, or other relief, which was awarded to him by the judgment so affirmed. 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. [Note 2261.]

309

139b

§ 131. When an appeal shall have been heard and determined Appeal from by an appellate term constituted as herein provided, the justices appellate thereof or a justice of the appellate division in the same department term may allow a further appeal to be taken from that determination to [said] the appellate division. [Note 2262.]

ARTICLE 5

SUPREME COURT

court

§ 138. The general jurisdiction in law and equity, which the General supreme court of the state possesses, under the provisions of the jurisdiction constitution, includes all the jurisdiction, which was possessed and of supreme exercised by the supreme court of the colony of New York, at any time, and by the court of chancery in England, on the 4th day of July, 1776; with the exceptions, additions and limitations, created and imposed by the constitution and laws of the state. Subject to those exceptions and limitations, the supreme court of the state has all the powers and authority of each of those courts, and exercises the same in like manner. [Note 2264.]

of supreme court on appeal from

inferior court

139. E, and] Upon [such] an appeal, to the supreme court Jurisdiction from an inferior or local court where an appeal therefrom other than to the supreme court is not expressly given by statute, an order granting or refusing a new trial [for any of the causes mentioned in section 999 of this act,] made by any of said courts, and questions of fact, may be reviewed in the same manner and to the same extent as questions of fact may be reviewed, upon appeal to the appellate division of the supreme court from a [final] judgment and order, granting or refusing a new trial, rendered by the same court. 2264.]

[Note

§ 139a. Appeals from inferior and local courts, where appeals therefrom are not otherwise provided for, including an appeal from an order affecting a substantial right [made by the court or a judge in an action brought in or taken by appeal to a court specified in said section, heretofore heard in the court of common pleas for the city and county of New York and the superior court of Buffalo,] may be taken to the supreme court. [Note 2265.]

§ 139b. Any justice of the supreme court has power to hold a Power of special or trial term of the supreme court for the whole or any supreme portion of the term; and to act upon any business, which regularly court justice comes before the term in which he is sitting except where he is per

§§ 170a

181

Jurisdiction

over contract

of incompetents

sonally disqualified from sitting, in a particular action or special proceeding. Each justice must, at all reasonable times, when not engaged in holding court, transact such judicial business as may be done out of court. [Note 2266.]

§ 170a. The supreme court shall have authority to decree and compel the specific performance of any bargain, contract or agreement which may have been made by any idiot, lunatic or habitual drunkard, while such person was capable to contract; and of any contract in relation to lands made by the ancestor of such person from whom such person inherits or takes as devisee or otherwise; and to direct the committee of such person to do and execute all necessary conveyances and acts for that purpose; and in case the person entitled to such conveyance is the committee of such incompetent person, the said court may, upon the petition of said committee, appoint some suitable and proper person to execute the said conveyance in the name of such incompetent person, upon payment by the vendee of any sum remaining due to such person upon said contract, or upon the fulfillment of the contract on the part of the party who contracted with the person represented by said committee. [Note 2267.]

Action on surrogate's bond

Jurisdiction

of county court

ARTICLE 5A
SURROGATE

§ 180. Where a surrogate, or an officer acting as surrogate, is guilty of any actionable default or misconduct in his office, the person injured thereby may apply for leave to prosecute the delinquent's official bond. [Note 2268.]

ARTICLE 6

COUNTY COURT

§ 181. The jurisdiction of each county court extends to the following actions and special proceedings, in addition to the jurisdiction, power, and authority, conferred upon a county court, in a particular case, by special statutory provisions:

1. To an action for the partition of real property; for dower; for the foreclosure, redemption or satisfaction of a mortgage upon real property; or to procure a judgment requiring a specific performance of a contract, relating to real property; where the real property, to which the action relates, is situated within the county; or to foreclose a lien upon a chattel, in a case specified in section 206 of the Lien Law, where the lien does not exceed one thousand dollars in amount, and the chattel is found within the county;

2. To an action in favor of the executor, administrator or assignee of a judgment creditor, or in a proper case, in favor of the judgment creditor, to recover a judgment fo: money remaining due upon a judgment rendered in the same court;