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2 Civ. Pro. 112.

tion issued thereupon is returned wholly or partly unsatisfied ; the sureties will pay the amount of the judgment, or the portion thereof remaining unsatisfied, not exceeding a sum, specified in the undertaking, which must be at least one hundred dollars, and not less than twice the amount of the judgment ; or, if the judgment in the justice's court is for the recovery of a chatiel, that the sureties will pay the sum tixed by that judgment as the value of the battel, together with the damages, if any, awarded for the taking, withholding, or detention thereof. A copy of the under. taking, with a notice of the delivery thereof, must be served with the notice of appeal, and in like manner. Sec tion one thousand three hundred and thirty-tive of this act applies to such an undertaking.

$ 3051. The delivery of the undertaking to the justice or to his clerk appointed pursuant to law, and service of a copy thereof, and of notice of the delivery thereof, stay the issuing of an execution upon the judgment. If an execution has been issued, the service of a copy of the undertak. ing, certitied by the justice or the clerk, or accompanied with an affidavit, showing that it is a copy, and that the original has been duly filed, upon the officer holding the execution, stays further proceedings thereunder.

$ 3052. Where the justice is dead, or cannot, with due diligence, be found within the county, and he has no clerk, appointed pursuant to law, or the clerk cannot, with due diligence, be found within the county, the undertaking may be filed with the clerk of the appellate court. In that case, notice of the filing must be given to the respondent, as prescribed in section three thousand and forty-eight of this act, for service of a notice of appeai upon him. The filing of the undertaking has the same effect, as the delivery thereof to the justice; and a copy thereof, certified by the county clerk, served upon the officer bolding an execution, has the same effect, as if it were certified, as prescribed in

the last section. 2 Civ. Pro. $ 3053. The justice must, after ten and within thirty

days from the service of the notice of appeal, avd the par. 45 Hun, 319. 17 Miye, 365. ment of the costs and fee, as prescribed in section thrie

thousand and forty-seven of this act, make a return to the ar pellate court, annex thereto the notice of appeal and the un. dertaking, if any las been delivered to him or to his clerk, and file the same with the clerk of the appellate court. The return must contain all the proceedings, including the eridence and the judgment; unless the appellant has, in his notice of appeal, demanded a new trial, in a case where he is entitled thereto, as prescribed in article third of this title. In a latter case, the justice must return the summons, together with each warrant of attachment, order of arrest, or requisition to replevy, or execution granted by him in the action, with the proof of the service thereof; the pleadings or copies thereof; the proceedings upon the trial ; and the

420.

§ 2611. (Am'd 1893.] A will of real or personal prop. 5 Dem. 293 erty, executed as prescribed by the laws of the State, or a 136 N. Y. 61, wil of personal property, executed without the State, and 84 Hun 5.0. within the United States, the dominion of Canada, or the kingdom of Great Britain and Ireland, as prescribed by the laws of the State or country where it is or was executed, or a will of personal property executed by a person not a resident of the state, according to the laws of the testator's residace, may be proved as prescribed in this article. The right to have a will admitted to probate, the validity of the execution thereof, or the validity or construction of any provision contained therein, is not affected by a change of the testator's residence made since the execution of the will. This section applies only to a will executed by a person dying after April eleven, eighteen hundred and seventy six, and it does not invalidate a will executed before that date, which would have been valid but for the enactment of sections one and two of chapter one hundred and eighteen of the laws of eighteen hundred and seventy-six, except where such a will is revoked or altered by a will which those sections rendered valid, or capable of being proved as prescribed in this article.

$ 2612. [Am'd 1893.) No person is competent to serve y Misc. 438. as an executor who, at the time the will is proved, is :

1. Incapable in law of making a contract.
2. Under the age of twenty-one years.
3. An alien not an inhabitant of this State; or
4. Who shall have been convicted of an infamous crime; or

5. Who, on proof, is found by the surrogate to be incom- 21 Misc. 777. petent to execute the duties of such trust by reason of drunkenness, dishonesty, improvidence or want of understanding. If any such person be named as the sole executor in a will, or if all the persons named therein as executors be incompetent, letters of administration with the will annexed must be issued as in the case of all of the executois renouncing. A surrogate, in his discretion, may refuse to grant letters testamentary or of administration to a person unable to read and write the English language.

2 2613. [Am’d 1893.) If the disability of a person under age, or an alien named as executor in a will, be removed before the execntion of the provisions of such will is completed, he shall be entitled, on application, to supplementary letters, testamentary, to be issued in the same manner as

have been entitled to recover, if the judgment of the justice had been in his favor.

& 3061. The clerk, immediately after entering final judgment upon the determination of an appeal, must attaca together and file such of the following papers, as were used upon the appeal ; which constitute the judgment-roll:

1. The return of the justice, or a certified copy thereof; the notice of appeal ; and the undertaking, if any has been given.

2. The verdict, report, or decision, and each offer, if any, made as prescribed in article third of this title.

3. A certified copy of the judgment, together with each notice of exceptions, or case, which is then on file.

4. Every other paper, then on file, and a certified copy of every order, which in any way involves the merits, or necessarily affects the judgment.

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34 How. Pr. $ 3062. [Am'd 1883, 1895, amendment to take effecl Janu. 15. ary 1, 1896.) If the case is one where the appellant is not

entitled to, or has not demanded, a new trial in the appellate court, is prescribed in section thirty hundred and sixty-eight of this act, the respondent may, within twenty days of the service on him of the notice of appeal serve upon the appellant or his attorney a written stipulation that the judgment appealed from may be reversed with five dollars costs and disbursements of the appeal, and thereafter no further steps shall be taken in such appeal, except to enter judgment in pursuance of such stipulation for the enforcement thereof; in case such stipulation shall not be so served, the appeal may be brought to a hearing in the appellate court, at any term thereof, at which such an appeal can be heard, held after the return is filed, upon a notice by either party, of not less than eight days. It must be placed upon the calen. dar; and must continue thereupon without further notice until it is finally disposed of. If after being regularly placed upon the calendar, beither party brings it to a hear. ing before the end of the second term thereafter, at which it might be noticed for hearing, and heard the court must dismiss the appeal, unless it directs the same to be con.

tinued, for cause shown. 8 N. Y. $ 3063. (Ai'd 1893.] In a case specified in the last State R-p. section the appeal must be heard upon the original papers,

655. or a certified copy thereof and a copy or copies thereof med 83 Hun, 283. not be furnished fir the use of the court. The appellate 5 App Div.

court must randorju zment accorliag to the justice of the case, without regard to technical errors or defects, which do not affect the merits. It may affirm or reverse the judgment of the justice, in whole or in part, and as to any or all of the parties, and for errors of law or of fact. When the appeal is to the county court of Kings county, said court may, up. on its reversal of a judgment, order a new trial before the same justice or before another justice of the same county to he designated in the order, and at a time and place to be specified in the order, and in such a case the costs of the appeal shall be in the discretion of the appellate court.

S 3064. If the appeal is taken by a defendant, who 8 Civ, Pia failed to appear before the justice, either upon the return 180. of the summons, or at the time to which the trial of the 5 N. Y.

Sopp. 670. action was adjourned ; and he shows, by affidavit or other: 52 llun, 318 wise, that manifest injustice has been done, and renders a 88 Hun, 186 satisfactory excuse for his default; the appellate court may, 5 App. Div in its discretion, set aside the judgment appealed from, or 17 Misc. 661. stay proceedings thereunder, and by order direct a new 25 App. Div. trial, before the same justice, or before another justice of 292. the same county, designated in the order, at such a time and place, specified in the order, and upon such terms, as it deems proper.

$ 3065. [Am'd 1893.] Where a new trial is directed before a justice as prescribed in the last two sections, the parties must appear before him at the time and place specified in the order of the appellate court, without service of any notice or of a copy of the order. Thereupon the like proceedings must be had in the action, as upon the return of a summons personally served.

$ 3066. Upon an appeal provided for in this article, the award of costs is regulated as follows:

1. If the appeal is dismissed, because neither party brings it to a hearing, as prescribed in this article, costs shall not be awarded to either party.

2. If the judgment is reversed for an error in fact, not 25 App. Div. affecting the merits; or if a new trial is directed, before the same or another justice, as prescribed in this article ; the costs of the appeal are in the discretion of the appellate court,

3. If the judgment is affirmed, costs must be awarded to the respondent.

4. If the judgment is reversed, costs must be awarded to the appellant.

5. If the judgment is affirmed only in part, the costs, or such a part thereof, as to the appellate court seems just, not exceeding ten dollars, besides disbursements, may be awarded to either party.

$ 3067. Upon an appeal, provided for in this article, 9 Misc. 456 costs, when awarded, must be as follows, besides disbursements :

To the appellant, upon reversal, thirty dollars.
To the respondent, upon aflirmance, twenty-five dollars,

196.

return.

! How. Pr. 505.

81.

ARTICLE THIRD. APPEAL FOR A NEW TRIAL IN THE APPELLATE COURT, $ 3068. When appellant may de- $ 3071. Proceedings in appellate mand new trial in ap

couri. pellate court

30772. Offer to compromise after 3069. Undertaking to be given. 3070. Offer to compromise be- 3073. Amount of costs.

fo.e return. $ 3068: [ Am'd 1893.! Where an issue of fact or an issue

of law was joined before the justice and the sum for which 31 Hun, 55. judgment was demanded by either party in his pleadings 85 Id. 278.

excee is fifty dollars, or, where in an action to recover a 92 Hun, 1.

chattel, the value of the property as fixed, together with the damages recovered, if any, exceeds fifty dollars, the appellant may, in his notice of appeal, except when the appeal is to the county court of Kings county, demand a new trial in the appellate court; and thereupon he is entitled thereto, whether the defendint was or was not pres. ent at the trial. An appeal from a judgment of a justice's court or by a justice of the peace in the city of Brooklyn, or any of the towns in the county of Kings must be taken and disposed of in the manner prescribed in articles

first and seconl of this chapter and title, and not otherwise. 5 Civ. Pro. $ 3069. To render such an appeal effectual, the appel.

lant must, at the time of the service of the notice of appeal upon the justice, give the undertaking required, by. this

title, to stay the execution of the judgment. 15 Week. $ 3070. (Am'd 1885, 1895, amendment to take effect SeptemDig. 262

ber 1, 1895.] Upon an appeal, provided for in this article, :29 Hun, 546. 31 Id. 352 from a judgment for a sum of money only, either party may, PS d. 231. within fifteen days after service of the notice of appeal, serve i Id. 207.

upon the adverse party, or upon his attorney, a written offer 52 Id. 198. 8! N. Y.

to allow judgment to be rendered in the appellate court, in State Rep. favor of either party, for a specified suna, If the offer is not

wi. accepted, it can not be proved upon the trial. If the party, 220 N.Y.555. within ten days after service of the offer upon him, serves Misc. 204.

upon the party making the same or upon his attorney, writ. 73 Hun, 595.

ten notice that he accepts the offer, he must file it, with an 89 Hun, 219. affidavit of service of the notice of acceptance, with the clerk

of the ap; ellate court, who thereupon must enter judgment 69 Hun, 207. accordingly. Where an offer is made as above provided, the 119 N.Y. 289. party refusing to accept the same shall be liable for costs of 6 App. Div. the appeal,inless the recovery shall be more favorable to him

than the sum offered. If neither party makes an offer, as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given, shall be entitled to recover his costs upon the appeal. Costs when awarded according to the provisions of this section shall be in amounts provided in section three thousand and seventy. three of this article.

$ 3071. l'pon an appeal, provided for in this article, 6 Misc. 294. after the expiration of ten days from the time of filing the

justice's return, the action is deemed an action at issue in The appellat. court; and all the proceedings therein, including the entry, enforcement, and review of the judg. ment, iire le sue, as if the action had been commenced in the appellate court, except as otherwise specially pre ribed in this chapter.

221.

20 Id, 301.

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