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a here an appeal might have been taken, as prescribed in the Tust section if the order had been made by the court.
Tho appellate division shall have power to vacate or modify, without notice, or upon such norice 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 alverse party, and refused by the supreme court or a justice thereof.
$ 1349. (Am'd 1893, 1895, amendmeut to take effect Jan- 1 Month. L. uary 1, 1896. An appeal may also be taken to the appellate division of the supreme court, from an interlocutory judg- 93 N. Y. 650;
42 Hun, 320. ment rendered at a special term or trial term of the supreme 121 Id. 156. court, or entered upon the report of a referee.
$ 1350. [Am'd 1895, amendment to take effect January 1, 1 Month. L. 1896.) Where final judgment is taken, at a special term or trial term, or pursuant to the directions of a referee, after the 150 N Y. 512. 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 proceedivgs 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 lettrmination 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, he reviewed thereupon. If the respondent elects to bring it up for review, he may take a cross-appeal therefrom, notwithstanding the expiration of the time to take an original appeal therefrom.
$ 1351. (Am'd 1895, amendment to take effect January 1, 1 Month. L. 1896.) An appeal authorized by this title, must be taken, Bul 29. within thirty days after service, upon the attorney for the
78 N. Y. 228
Lid. 320. 3 Civ. Pro.
| Dem. 287.
Hun, 676; appellant, of a copy of the judgment or order appealed from, ild. 316; and a written notice of the entry thereof. Security is not
required to perfect the appeal; but except where it is other. 10.
wise specially prescribed by law, the appeal does not stay
the execution of the judgment or order appealed from; unIN Y. State less the court, in or from which the appeal is taken, or a
Such judge thereof, makes an order, directing such a stay. IN.Y.Supp. to.
an order may be made, and may, from time to time, be BO N.Y. 532. modified, upon such terms, as to security or otherwise, as A App. Div. 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.
6 Hun, 316. $1352. Upon an appeal from a final judgment, taken as fr.civ. Pro. prescribed in this title, the appellant may give the security, 0 Hun, 557. required to perfect an appeal to the court of appeals, from a 15 Civ. Pro. 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 150 Id, 532.
court of appeals, and subject to the same conditions.
8 1353. [Am'd 1895, amendment to take effect January 10 Hun, 645. 26 N. Y. State 1, 1896.] An appeal from a final judgment, taken as preRep. 326.
scribed in this title, must be heard upon a certified copy of 36 N. Y. 353. 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 ap. pellant 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.
82 N. Y. 866,
$ 1354. [Ain'd 1879.) When judgment of affirmance is rendered upon the appeal, the judgment-roll 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.
$ 1355. (Amd 1895, amendment to take effect January 1, 3596.) An appeal taken to the appellate division of the supreme court, as prescribed in tbis iitle, must be heard in the department, embracing the county, in which the judgluent or order appealed from is entered; unless an order is rade, as prescribed in section two hundred and thirty-one of this act, directing that it be heard in another department, o unless appeals pending in one department are transferred for hearing and determination to another, pursuant to article 8.5, 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 provides in section thirteen hundred and fifty-three must be transmitted by the clerk upon payment of his fees, to the clerk of the county where the judgment or order appeale i from was entered, and upon such certified copy of the order and the case or papers upon which the appeal was beril, the county clerk shall enter the judgment in his office.
Appeal from a final determination in a special proceeding.
§ 1366. Appeal from order made
in the same court. 1357. Id.; when made by an
other court or judge. 1358. Intermediate order may
be reviewed. 1359, Limitation of time to ap
hearing of appeal; do
plication of provisions
$ 1356. [Am'd 1877, 1895, amendment to take effect Jan. 43 Hun, 505 wary 1, 1896.1 An appeal may be taken, to the appellate di. 146 N.Y. 251, vision 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.
282. 107 N.Y 272
$ 1357. (Am'd 1877, 1895, amendment to take effect Jan- 16 Abb. N.C. uary 1, 1896.) An appeal may also be taken to the appellate division of the supreme court, from an order, affecting a 30 App. Div. substantial right, made by a court of record, possessing 24. original jurisdiction or a judge thereof, in a special proceed. ing 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 it the supreme court, is expressly given by statute.
$ 1358. [Am'd 1977.) 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 veces. sarily affecting the final order appealed from, which is specified in the notice of appeal.
$ 1359. 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.
§ 1360. The provisions of title fourth of this chapter, relating to perfecting an appeal from an order, taken as there. in 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.
& 1361. 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. Ìhe 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.
EXECUTIONS. TITLE I.--FORMS OF EXECUTION; TIME AND MANNER OF IS
SUING AN EXECUTION; GENERAL DUTIES AND
LIABILITIES OF OFFICERS.
tion; general duties and liabilities of officers. & 1362. To whom execution di- è 1371. Id.; against executor, etc.
rected; provision where 1372. Id.; against the person. sheriff is a party,
1373. Id.; for delivery of prop1363. Time of receipt to be in.
money, dorsed op execution.
same 1364. The different kinds of ex
judgment, may be colecution.
lected. 1265. To what counties execu- 1374. Separate executions, tions may issue.
where separate Sum 1366. General requisites of exe
1375. Execution of course, 1367. Id.; when issued on filing
within five years. transcript from jus- 1376. Execution, afier death of tice's court, etc.
judgment creditor. 1368. Requisites of execution 1377. When execution may be for the collection of
issued after five years, money.
1378. Id.; leave, how obtained. 1369. Id.; against property.
1379. No execution against de. 1370. Id., where a warrant of
cedent, except, etc. attachment has been 1380, Leave required to issue issued,
execution against decedent's property.
à 1381. Leave, how obtained.
or defacing notice of 1382. Time of stay by order,
affected by sheriff's de1383. Execution against sur
by certain officers, pro1384. Sale on execution, etc.;
enforced by under1385. Penalty for taking down
sheriff. $ 1382. An execution must be directed to the sheriff, unless he is a party or interested ; in which case it must be directed as prescribed in section one hundred and seventythree of this act. But the court may, in its discretion, order an execution, issued upon a judgment rendered against a sheriif, either alone or with another, to be directed to a person, designated in the order, instead of to the coroners, or a particular coroner; in which case it must be so directed. The person so designated must be of full age, a resident of the State, and not a party to the action, or interested therein. Where the execution is issued upon a judgment for a sum of money, or directing the payment of a sum of money, the order does not take effect, until the person so designated executes, and files in the clerk's office, a bond to the people, with at least two sureties, approved by a judge of the court, or a county judge, in a penal sum, fixed by the order, not less than twice the sum to be collected by virtue of the execution ; conditioned for the faithful performance of his duties under the execution. A certified copy of the order, and, where it requires a bond to be given, the clerk's certificate that a bond has been filed, as required by the order, must be attached to the execution. The person so designated is deemed an officer; and, with respect to that execution, he is subject to the obligations and liabilities, and has the power and authority of a coroner, and is entitled to fees accordingly.
$ 1363. The sheriff, to whom an execution is directed 78 Hun, 584 and delivered, must, upon the receipt thereof, indorse thereupon a memorandum of the day, hour and minute, when he received it.
$ 1364. There are four kinds of execution, as follows:
3. For the delivery of the possession of real property, with or without damages for withholding the same.
4. For the delivery of the possession of a chattel, with or without damages for the taking or detention thereof.
An execution is the process of the court, from which it is issued.
$ 1365. An exeution against property can be issued only to a county, in the clerk's office of which the judgment is 29 Hun, 614. docketed. An execution against the person may be issued to 110 N.Y.366. any county. An execution for the delivery of the possession of real property, must be issued to the county, where the property, or a part thereof, is situated. An execution for the delivery of the possession of a chattel, may be issued to any county, where the chattel is found ; or to the sheriff of the county where the judgment-roll is filed. Executions, upon the same judgment, may be issued at the same time, to two or more different counties.