104 N.Y. 394; 121 Id. 156.

1301. Where the appeal is from a final judgment or from a final order in a special proceeding, and the appellant 14 App. Div. intends to bring up, for review thereupon, an interlocutory judgment, or an intermediate order, he must, in the notice of appeal, distinctly specify the interlocutory judgment, or intermediate order, to be reviewed.

367.

§ 1302. If the attorney for the adverse party is dead; or if he has been removed, and notice of the removal has been served upon the appellant's attorney, and another attorney has not been substituted in his place; or if, for any reason, service of a notice of appeal, upon the proper attorney for the adverse party, cannot, with due diligence, be made within the State, the notice of appeal may be served upon the respondent, in the manner prescribed by law for serving it upon an attorney. If personal service upon the respondent cannot, with due diligence, be so made within the State, the notice of appeal may be served upon him, and notice of the subsequent proceedings may be given to him, as directed by a judge of the court, in or to which the appeal is

taken.

§ 1303. Where the appellant, seasonably and in good faith, serves the notice of appeal, either upon the clerk or upon the adverse party, or his attorney, but omits, through mistake, inadvertance, or excusable neglect, to serve it upon the other, or to do any other act, necessary to perfect the appeal, or to stay the execution of the judgment or order appealed from; the court, in or to which the appeal is taken, upon proof, by affidavit, of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires.

§ 1304. An appeal cannot be taken from an order made by a judge, out of court, until it is entered in the office of the proper clerk. Where such an order has not been so entered, or the papers, upon which it was founded, have not been filed in the same clerk's office, the judge who made, or, if he is absent, or unable or disqualified to act, a judge of the court, in or to which an appeal therefrom may be taken, must, upon the application of a party or other person, entitled to take such an appeal, make an order, requiring the omission to be supplied, within a specified time after service of a copy of the order made by him. Upon proof, by affidavit, that a copy of the latter order has been served, and that the omission has not been supplied, the same judge may make, upon notice, an order revoking and annulling the original order. The provisions of the last section but one apply to the service of an order, or a notice, as prescribed in this section.

§ 1305. An undertaking, which the appellant is required, by this chapter, to give, or any other act which he is so required to do, for the security of the respondent, may be waived by the written consent of the respondent.

§ 1306. Where the appellant is required, by this chapter, to give an undertaking, he may, in lieu thereof, deposit with the clerk, with whom the judgment or order appealed from is entered, a sum of money, equal to the amount, for which the undertaking is required to be given. The deposit has the same effect, as filing the undertaking; and notice that it has been made, has the same effect, as notice of the filing and service of a copy of the undertaking. The court, wherein the appeal is pending, may direct the mode, in which the money shall be kept and disposed of, during the pendency, or after the determination of the appeal.

§ 1307. An undertaking, given as prescribed in this chapter, must be filed with the clerk, with whom the judgment or order appealed from is entered.

109 Id. 646.

1308. [Am'd 1895, amendment to take effect January 1, 72 N. Y. 613; 1896.] The court, in which the appeal is pending, upon satisfactory proof, by affidavit, that since the execution of an undertaking, given as prescribed in this chapter, one or more of the sureties therein have become insolvent; or that his or their circumstances have become so precarious that there is reason to apprehend that the undertaking is not sufficient for the security of the respondent; may make an order, requiring the appellant to file a new undertaking, and to serve a copy thereof, as required with respect to the original undertaking. If the appellant fails so to do, within twenty days after the service of a copy of the order, or such further time as the court allows, the appeal must be dismissed, or the order or judgment, from which the appeal is taken, must be executed, as if the original undertaking had not been given.

101 N.Y. 289.

12 Civ. Pro.

379

14 N.Y.State

Rep. 8.

23 Abb. N. C. 428.

86.

§1809. [Am'd 1894, amendment to take effect September 1, 1894.] An action shall not be maintained upon an undertaking given upon an appeal, taken as prescribed in title third, fourth or fifth of this chapter, until ten days have expired since the service upon the attorney for the appellant, and upon the sureties on such undertaking, of a written notice 17 Civ. Pro. of the entry of a judgment or order, affirming the judgment 12 Misc. 33, or order appealed from, or dismissing the appeal. Such service may be made by mailing such notice in a post-paid 89 Hun, 368. wrapper, addressed to said surety or sureties at the last known 92 Id. 323. post-office address of such surety or sureties. Where an ap- 30 App. Div. peal to the court of appeals from that judgment or order is 225. perfected, and security is given thereupon, to stay the execution of the judgment or order appealed from, an action shall notbe maintained upon the undertaking given upon the preceding appeal, until after the final determination of the appeal to the court of appeals.

4 Civ. Pro. 284.

49 Hun, 163,

139 N. Y. 18. 21 App. Div. 266.

5 Week. Dig. 463.

13 Abb. N.C. 481.

§ 1310. When appeal stays proceedings, effect thereof. [Am'd 1893, 1895, 1898.] Where an appeal to the general term of any court or to the appellate division of the supreme court or to the court of appeals or otherwise has been heretofore or shall hereafter be perfected, as prescribed in this chapter, and the other acts, if any, required to be done, to stay the execution of the judgment or order appealed from, have been done, the appeal stays all proceedings to enforce the judgment or order appealed from; except that the court or judge, from whose determination the appeal is taken, may proceed in any matter included in the action or special proceeding, and not affected by the judgment or order appealed from or not embraced within the appeal; or may cause perishable property to be sold, pursuant to the judgment or order appealed from. The proceeds of such a sale must be paid, to abide the result of the appeal, into the court from or in which the appeal is taken, or, if it was taken as prescribed in title fifth of this chapter, into the supreme court. When an appeal from a judgment for rent has been perfected and execution stayed as herein provided, the appeal stays all summary proceedings, pending or otherwise, to recover the possession of real property or dispossess tenants therefrom, based on the failure to pay the rent included in the judgment appealed from. In a case, specified in subdivision two of section one hundred and ninety-one, of this act, a party aggrieved, upon presenting to the court proof by affidavit that he intends to apply to the appellate division, rendering such decision, for leave to appeal to the court of appeals, and in case such appellate division shall refuse such leave, then that such party intends to apply to a judge of the court of appeals to be allowed to appeal to said court of appeals, and proof that an undertaking, given as prescribed in this chap. ter, has been filed with the clerk with whom the judgment appealed from is entered, shall be entitled to an order staying all proceedings to enforce such judgment, until the granting or refusal of such leave to appeal by such appellate division or a judge of the court of appeals. The party desiring to make such application must do so at the same term or at the term of said appellate division next succeeding that at which judgment of affirmance was rendered and notice of entry thereof served upon the party aggrieved, and in case said appellate division refuses such appli cation, then such party shall have thirty days, from and after service of a copy of the order of said appellate division denying such application, with notice of entry, in which to apply to a judge of the court of appeals, to be allowed to so appeal.

§ 1311. Levy upon personal property, when superseded by appeal. [am'd 1895, 1899, amendment to take effect September 1, 1899]. Where an appeal, taken from a final judgment, to the court of appeals, has been perfected, and the security, roquired to stay the execution of the judgment, has been given; or where the security, given upon an appeal, taken from a final judgment of the supreme court, a county court or the city court of the city of New York, or the municipal court of the city of New York, is equal to that required to perfect an appeal to the court of appeals, and to stay the execution of the judgment; the court, in which the judgment appealed from was rendered, may, in its discretion, and upon such terms as justice requires, make an order, upon notice to the respondent, and the sureties in the undertaking, discharging a levy upon personal property, made by virtue of an execution, issued upon the judgment appealed from. But this section does not authorize the discharge of a levy, made by virtue of a warrant of attachment.

§§ 1312-1315

APPEALS GENERALLY.

2646

§ 1312. Where an appeal is taken, as prescribed in title & Dem. 287. second or fourth of this chapter, the court, in or from which 117 N.Y. 115, the appeal is taken; or, where an appeal is taken as prescribed in title third or fifth of this chapter, the court, to which the appeal is taken; may, in its discretion, make an order, upon notice to the respondent, dispensing with or limiting the security, required to stay the execution of the judgment or order appealed from, as follows:

1. Where the appellant is an executor, administrator, trustee, or other person acting in another's right, the security 4 Dem. 84. may be dispensed with or limited, in the discretion of the court.

2. The aggregate sum, in which one or more undertakings are required to be given, may be limited to not less than fifty thousand dollars, where it would otherwise exceed that

sum.

§ 1313. [Am'd 1889.] Upon an appeal taken by the peo- 104 N.Y.394, ple of the State, or by a State officer, or board of State officers, or a board of supervisors of a county, the service of the notice of appeal perfects the appeal, and stays the execution of the judgment or order appealed from, without an undertaking or other security.

§ 1314. [Am'd 1877.] Upon an appeal, taken by a domes- 30 App. Div. tic municipal corporation, the service of the notice of appeal 374. perfects the appeal, and stays the execution of the judg ment, or order appealed from without an undertaking, or other security; except that, where an appeal is taken, as prescribed in title second, third or fourth of this chapter, the court, in or from which the appeal is taken, may, in its discretion, require security to be given. In that case, the form, nature, and extent of the security, not exceeding that which is required in a like case, from a natural person, and the time and manner in which it must be given must be prescribed by the order of the court; and the mayor, comptroller, or counsel to the corporation, may, execute, in behalf of the corporation an undertaking, so required to be given.

§ 1315. [Am'd 1890.] Where an appeal is taken from a 150 N.Y. 542. final judgment as prescribed in title second or third of this

chapter, the appellant must, within twenty days after it is

perfected, cause a copy of the judgment-roll and of the case and notice of exceptions, if any, filed after the entry of judgment and a certified copy of the judgment given thereon and of the notice of appeal to be transmitted to the appellate court by the clerk upon whom the notice of appeal was served.

Where an appeal from an order, or a part of an order, is taken as prescribed in title second, third and fifth of this chapter, the appellant must, within the same time, cause a certified copy of the notice of appeal, of the order, and of the papers upon which the order was founded, to be transmitted to the appellate court by the same clerk. If the appellant fails so to do, the respondent may cause those papers to be so transmitted; and he is entitled to tax the expense thereof, as a disbursement, where he recovers costs. The clerk of the appellate court must file the papers so transmitted; and ex

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