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90 M. Y. 476.
5 Civ
81.

$ 1885. [Am'd 1882, 1891 ] It is not necessary that the Pro. undertaking should be approved; bui attorney for tbe re

spondent may, within ten days after the service of a copy of 98 N. Y. 458. the undertaking with notice of the filing thereof, serve upon

the attorney for the appellant, & written notice that he tr. cepts to the sufficiency of the sureties. Within ten days there. after, the sureties, or other sureties in a new undertaking to the same effect, must justify before the court 1 elow, or ajudge thereor,or a referee appointed by the same, or a county judge. At least five days' notice of the justification must be given. A referee may be appointed upon ihe motion of either party, or upon the court's own motion to take the justification of such sureties and to report the evidence upon the same to the court or judge with his opinion. The court may further direct that either party shall pay the expenses of such refer. ence. If the court or judge finds the sureties suficient he mustendorse his allowance of them upon the undertaking,or a copy thereof, and a notice of the allowance must be served upon the attorney for tho exceptant. The effect of a failure 80 to justify and procure an allowance, is the same as if the undertaking had not been given. The court shall also have power, in case it shall be made to appear to its satisfaction, upon motion, that the exception was taken unnecessarily or for purposes of vexation or delay, to set the same aside and approve the undertaking.

17 Civ. Pro. 43.

$ 1336. [Am’d 1895, amendment to take effect January 1, 1896.] Where a final judgment is rendered in the court below, after the affirmance, upon an appeal to the appellate division of the supreme court, of an interlocutory judginent; or after the refusal, by the appellate division of a new trial, either upon an application made in the first instance, at a term thert of, 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; the party aggrieved may appeal directly from the final judgment to the court of appeals, notwithstanding that it was rendered at a special term,or at a trial term, or pursuant to the directions, contained in a referee's report But such an appeal brings up, for review, only the determination of the a!'pellate division of the supreme court, affirming the interlocutory judgment, or refusing the

new trial. 73 N. Y. 187.

$ 1337. [ Am’d 1894, 18.3.1, amendment to take effect January 24 N.Y.State Rep. 74 1, 1896.) An appenl to the court of appeals from a final 121 N. Y. 57; judgment, or from an order, granting or refusing a new trial

in an iction, where the appellant stipulates that upon affirm. ance judgment absolute shall be rendered against him, brings up for review in that court only questions of law; but where

tbe justices of the appellate division from which an appeal is 150 Id. 219. taken are divided upon the question as to whether there is

evidence supporting, or tending to support, a finding or verdict not directed by the court, a question for review is presented. In any action on an appeal to the court of appeals, tbe court may either modify or affirm the judgment or order appealed from, award a new trial, or grant to eitbes party such judgment as such party may be entitled to

Id. 156,
123 Id. 120.
131 N. Y. 37.
133 Id. 170.
135 Id. 248,

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87 Id. 620,

79 N. Y. 409: $ 1338. (Im'd 1895, amendment to take effect January 1, 1896.] Upou an appeal to the court of appears from a judg. 127 1d. 639. ment, reversing a judgment entered upon the report of a 30 Abb. N.C. reftree or a determination in the trial court; or from an or

214. 135 NY. der granting a new trial, upon such a r:versal; it must be 61; 138 la. presunied that the judgment was no: reversed, or the new 376: 147 id. irial granted, upon a question of fact, unless the con:rary

69: 14 l clearly appears in the record body of the judgment or or ier

403; 1:0 Id. appealed from

229, 27.*; 155

60; 136 Id.

219: 114 1:

Jd. 383.
157 XY. 419,

21:39 (Am'd 1895, amendment to take effect January 1, lid v Y. 231 1896.) Where an appeal to the court of appeals, from a jidge 131 N.X.597, ment, rendered by the appellite division of the supreme couit, upon a verdict, subject to the opinion of the court, has been perfected, a case, containing a concise statement of the facts, of the questions of law arising thereupon and of the determination of those que tions by the appellate divi. sion, must be prepared and settl d, by or under the direction of the court below, and annexed to the judgment-roll.

An exception is not necessary, to enable the court of appeals to review the determination of a question of law, arising upon the verdict. A certified copy of the case must be transmitted to the court of appenals, instead of the case upon which the judgment of the court below was rendered. The court helow, or a judge thereof, may extend the time, limited by law, within which the papers must be transmitted to the court of appeals, for the purpose of enabling the appellant to procuro the case to be prepared or settled.

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1340. (Amd 1838, 1895, amendment lo take effect January 19 Hun, 74,

13 Week. 1, 1896.] Except appeals fron inferior and local courts heretofore heard in the court of common pleas for the city 29 Abb. N.C

Dig. 143. and county of New York, and the superior court of Buffalo, 479. an appeal may be taken to the appellate division of the supreme court, from a final judgment, rendered by a county conrt, or by any other court of record possessing original jurisdiction, where an appeal therefrom to a court other than te supreme court is not expressly given by statute, and upon sich appeal, an order vranting or refusing a new trial för any of the cinses mentioned in section nine hundred and ninety nine of this act, made by any of said courts, and questions of facts, may be reviewed in the same manner and lithe same extent as questions of fact may be reviewed,

Id. 303. 18 Week.

upon appeal to the appellate division of the snpreme court from a final judgment and order, granting or refusing a new trial, rendered by the same court. 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, may be taken to the supreme court,

$ 1341. [Am'd 1877, 1890.) An appeal authorized by the last section must be taken within thirty days after service upon the attorney for the appellant, of the copy of the judgment, and written notice of the entry thereof; security is not required to perfect the appeal, but to stay the execution of the judgment security must be given, and the sureties may be excepted to, and must justify, as upon an appeal to the court of appeals, from a judgment of the same amount, or

to the same effect. 18 Hun, 74;

§ 1342. [ Am'd 1881, 1895, amendment to take effect January 26 id. 237; 1, 1896.) An appeal may also be taken as provided by sec.

tion thirteen hundred and forty, from an order affecting & Dig. 510.

substantial right, made by the court or a judge, in an action 02 N.Y. 383. brought in, or taken by appeal to, a court specified in the

last section.

$ 1343. [Am'd 1877.] An appeal, authorized by the last section, must be taken, within sixty days after service upon the attorney for the appellant, of a copy of the order, and written notice of the entry thereof. Security is not required to perfect it; but it does not stay the execution of the order from which it is taken. The appellate court, or a judge there. of, mnay direct such a stay, upon such terms, as to security

or otherwise, as justice requires. 16 Misc. 362. $ 1344. [Am'd 1895, amendment to take effect Janunry 1,

1896.] An appeal, taken as prescribed in this title, must be heard by the appellate division of the supreme court except that appeals from the judgment of any district court or of the city court in the city of New York, may be heard by the appellate division of the supreme court, or by such justice or justices of the supreme court as may be designated for that purpose by the justices of the appellate division sitting in the first judicial department. In case an appeal is heard by a justice or justices of the supreme court as hereinbefore provided, the justice or justices by whom such appeal was determined, may allow an appeal to be taken to such appellate division from such determination; and appeals from inferior courts heretofore heard by the superior court of Buffalo shall be heard by the appellate division of the sapreme court in the fourth judicial department, or by such justice or justices of the supreme court as may be designated for that purpose by the justices of the appellate division of the fourth judicial department. The provisions of title fourth of this chapter, relating to the hearing of appeals, taken in the supreme court, and to the subsequent proceedings thereupon, apply to an appeal taken as prescribed in this title, except as specified in the next section,

1315-1346 APPEAL TO SUPREME COURT. 271 $ 1345. [Amd 1895, amendment to take effect January 1, 29 Abb. N.o 18:36.) A judgment or order of the appellate division ren. 479. dered upon an appealauthorized by this title must be entered in the office of the clerk of the appellate division in the department in which the court below is located. A certified copy thereof annexed to the papers transmitted from the court below must be transmitted by the clerk, apon payment of his fees, to the clerk of the county where the court from which the appeal was taken is situated, and shall constitute the judgment roll and remain in his office. The filing of the judgment-roll or the entry of the order as prescribed in this section is a sufficient authority for any proceeding in the court below or before the judge or justice who made the order appealed from wbich the judgment or order of the appellate court directs or permits. But where the execution of the judgment or order of the appellate court is stayed by an appeal to the court of appeals, the proceedings in the court below or before the judge or justice, who made the order are stayed in like manner. A judgment or order of the supreme court, rendered upon an appeal from a judgment of any district court or of the city court of New York, or an appeal heretofore heard by the superior court of Buffalo, must be entered in the office of the clerk of the county wherein the court below is located, and, with the papers transmitted from the court below, forms the judgment roll which must be filed in the same office. Where the appeal is from the city court of New York, the judgment or order of the supreme court must be entered in the office of the clerk of the said oourt.

TITLE IV.

Appeal to the appellate division of the supreme court.

or

$ 1346. Appeal from judgment.

1347. Appeal from order.
1348. Id.; when made out of

court; powers of appel-
late division to grant

orders.
1340. Appeal from interlocu-

tory judgment.
1350. Appeal from final judg.

ment, after affirmance
of interlocutory judg.
ment, or denial of new
trial. Review in the

court of appeals.
$ 1351. Limitation of time;

der to stay proceed.

ings.
1352. Stay of proceedings with-

out order.
1363. Upon what papers appeal

to be beard.
1354. Entry of judgment or or-

der; judgment roll.
1355. Hearing, etc., in the su-

preme court.

3 1346. [Am'd 1895, amendment to take effect January 1, 19 Hun, 7,9. 1896.) An appeal may be taken to the appellate division of the supreme court from a final judgment rendered in the supreme court or in any superior city court prior to the first day of January, one thousand eight hundred and ninety-six,

47 Hun, 152.

and from a final judgment rendered in the supreme court after said day as follows :

1. Where the judgment was rendered upon a trial by referee, or by the court without a jury, the appeal may be taken upon questions of law, or upon the facts, or upon both.

2. Where the judgment was rendered upon tte verdict of a jury, the appeal may be taken upon questions of law.

123 N.Y. 120.

$ 1947. [Am'd 1895, amendment to take effect January 1, 88 Hun, 325.

1896.) An appeal may be taken to the appellate division of 16 Misc. 160. the supreme court, from an order made prior to the first day

of January, one thousand eight hundred and ninety-six, in an action upon notice, at a special term or a trial term of a superior city court, or of the supreme court, or at a term of the circuit court, and from an order made et a special term or trial term of the supreme court, after said day, in either of the following uses:

1. Where the order grants, refuses, continues, or modifies a provisional remedy; or settles or grants or refuses an application to resettle a case on appeal or a bill of excep

tions. 86 Hun, 434 2. Where it grants, or refuses a new trial; except that

where specific questions of fact, arising upon the issues, in
an action triable by the court, have been tried by a jury,
pursuant to an order for that purpose, as prescribed in sec-
tion nine hundred and seventy-one of tbis act, an appeal can
not be taken from an order, granting or refusing a new trial
upon the merits.

3. Where it involves some part of the merits.
4. Where it affects a substantial right.

5 Where, in effect, it determines the action, and prevents a judgment, from which an appeal might be taken.

6. Where it determines a statutory provision of the State to be constitntional; and the determination appears from the reasons given for the decision thereupon, or is necessarily implied in the decision. An order, made upon a summary application, after judgment, is deemed to have been made, in the action, within the meaning of this section.

87 N. Y. 409,

$ 1348. [Am'd 1895, amendment to take effect January 1, 1596.] 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

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