gence, 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.

New.

$1303. Defects in proceedings may be supplied. 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, inadvertence, 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.

Co. Proc., part of 327, am'd. People v. Eldridge, 7 How. 108; Cotes v. Carroll, 28 id. 436; Fry v. Bennett, 16 id. 385; Irvin v. Muir, 13 id. 410; Whitley v. Leeds, 27 id. 378; Mills v. Thursby, 11 id. 129; Sternhaus v. Schmidt, 5 Abb. 66; Bryant v. Bryant, 4 Abb. N. S. 138; s. c., 7 Rob. 49; Morris v. Morange, 17 Abb. 86; s. c., 26 How. 247; Ellsworth v. Fulton, 24 id. 20.

11

$1304. Order appealed from must be entered. Proceedings to compel entry. 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.(1) 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 it, or, if he is absent, or unable or disqualified to act, a judge of the court, in or to which an appeal there from may be taken, must, upon the application of a party or other person, entitled ake such an appeal, make an order, requiring the sion to be supplied, within a specified time after e of a copy of the order made by him. Upon proof, idavit, that a copy of the latter order has been and that the omission has not been supplied, the udge may make, upon notice, an order revoking alling the original order. The provisions of the

on but one apply to the service of an order, or s prescribed in this section.

for portions of Co. Proc., 350. (1) Savage v. Relyea, 3 Celly v. Thayer, 34 id. 163; Clinch v. South Side R. R., 4 T. c., 2 Hun, 154.

Security may be waived. An undertak. a the appellant is required, by this chapter, to ny other act which he is so required to do, for ty of the respondent, may be waived by the onsent of the respondent.

334, last sentence, am'd. See Hill v. Burke, 62 N. Y. 111.

Deposit, in lieu of undertaking.. - Where the is required, by this chapter, to give an under. may, in lieu thereof, deposit with the clerk, m the judgment or order appealed from is enum of money, equal to the amount, for which taking is required to be given. The deposit ame effect, as filing the undertaking; and not has been made, has the same effect, as notice ng and service of a copy of the undertaking. , wherein the appeal is pending, may direct , in which the money shall be kept and disduring the pendency, or after the determinae appeal.

f? 335, am'd.

. Undertaking must be filed. An undertak1 as prescribed in this chapter, must be filed clerk, with whom the judgment or order ap>m is entered.

irst sentence.

New undertaking to be given, when sureisolvent, etc. - The court, in which the ap. ending, upon satisfactory proof, by affidavit, the execution of an undertaking, given as I in this chapter, one or more of the sureties ve become insolvent; or that his or their cires have become so precarious, the* there is apprehend, that the undertaking is not sufficle security of the respondent; may make an uiring the appellant to file a new undertaking, ve a copy thereof, as required with respect to

Error in engrossing for "that."

the original undertaking.(1) 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.(2)

Co. Proc., part of 335, am'd. (1) Eiseman v. Swan, 11 Abb. 112; Wilett v. Stringer, 15 How. 310. (2) Genter v. Fields, 1 Keyes, 483.

§ 1309. Action upon undertaking, when not to be brought. 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,(1) since the service, upon the attor ney for the appellant, of a written notice of the entry of a judgment or order, affirming the judgment or order appealed from, or dismissing the appeal.(2) Where an appeal to the court of appeals, from that judgment or order, is perfected, and security is given thereupon, to stay the execution of the judgment or order appealed from, an action shall not be maintained upon the undertaking, given upon the preceding appeal, until after the final determination of the appeal to the court of appeals. 77 N. Y 164.

Id., part of 348, am'd. (1) Wheeler v. McCabe, 5 Daly, 387. (2) Rogers v. Schmersahl, 4 Hun, 623; Porter v. Kingsbury, 5 id. 597.

§ 1310. When appeal stays proceedings; effect thereof. - Where an appeal has been perfected,(1) as prescribed in this chapter, and the other acts, if any, required to be done, to stay the execution of the judg ment 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 pro ceed 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 he judgment or order appealed from (2) The proceeds f such a sale must be paid, to abide the result of the peal, into the court, from or in which the appeal is ken; or, if it was taken as prescribed in title fifth of this chapter, into the supreme court.

Id., 339, Arst sentence, and 1 342, am'd. (1) Wade v. De Leyer N. Y. 318; Thompson v. Blanchard, 4 How. 210 (3) Be Barry,

: Rathbone v. Morris, 9 Abb. 213; Stricker v. Wakeman, 13 id. v. Dickerson, 1 Duer, 679: Bowman v. Tallman, 19 Abb. 84; 28 2; 2 Rob. 632; 3 id. 633; Read v. Potter, 11 Abb. 413. See Davis worths, 14 How. 346; Ward v. James, 8 Hun, 526; Ireland v. 9 Abb. N. S. 71.

11. Levy upon personal property, when superby appeal. Where an appeal, taken, from a dgment, to the court of appeals, has been perand the security, required to stay the execution judgment, has been given; or where the security, upon an appeal, taken from a final judgment of preme court, a superior city court, a county court, marine court of the city of New-York, is equal required to perfect an appeal to the court of s, and to stay the execution of the judgment; the in which the judgment appealed from was renmay, in its discretion, and upon such terms as requires, make an order, upon notice to the rent, and the sureties in the undertaking, discharg evy upon personal property, made by virtue of cution, issued upon the judgment appealed from. is section does not authorize the discharge of a nade by virtue of a warrant of attachment.

ses.

12. Court may limit amount of security in cerWhere an appeal is taken, as prescribed second or fourth of this chapter, the court, in or hich the appeal is taken; or, where an appeal is is prescribed in title third or fifth of this chapter, rt, to which the appeal is taken; may, in its dis, make an order, upon notice to the respondent, sing with or limiting the security, required to e execution of the judgment or order appealed Ls follows:

Where the appellant is an executor, administrator, , or other person acting in another's right, the y may be dispensed with or limited, in the disof the court.

he aggregate sum, in which one or more under s are required to be given, may be limited to not an fifty thousand dollars, where it would other. xceed that sum,

ute for part of Co. Proc. 339. Mills v. Forbes, 13 How.

1313. No security necessary, on appeal by the people, etc. Upon an appeal, taken by the people 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.

Substance of L. 1858, ch. 37, 2, as amended by L. 1861, ch. 288 (4 Edm.

300)

§ 1314. [Amended, 1877.] Id.; on appeal by a domestic municipal corporation. Upon an appeal, taken by a domestic municipal corporation, 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; 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.

L. 1859, ch. 262, § 1 (4 Edm. 682). See & 1990.

§ 1315. Papers to be transmitted to appellate court Where an appeal is taken from a final judgment, es prescribed in title second or third of this chap ter, the appellant must, within twenty days after it is perfected, cause a copy (1) of the judgment-roll, and of a case or 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 transmmitted 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.

the appellant fails so to do, the respondent may