Abb. 66. Tlers o. Carnahan, 2 id. 69; McMahon . Allen, 22 How. 193; Valton v. Nat, Loan Fund, 19 1d. 515. Horner v. Lyman, 4 Keyes, 237; Bhankland v. Hamilton, 1 N. Y. Sup. Ct. (T. & C.) 239.

1328. Id.; on judgment, etc., for delivery of property, If the appeal is taken from a judgment or order, directing the assignment or delivery of a document, or of personal property, it does not stay the execution of the judgment or order, until the thing directed to be assigned or delivered, is brought into the court below, or placed in the custody of an officer or receiver, designated by that court; or the appellant gives a written undertaking as prescribed in the next section.

Co. Proc., part of 336, am'd. Elliott v. Buckland, 37 How. 71. $ 1329. Id.; on judgment for a chattel. If the appeal is taken from a judgment for the recovery of a chattel, it does not stay the execution of the judgment, until the appellant gives a written undertaking, in a sum fixed by the court below, or a judge thereof, to the effect, that the appellant will obey the direction of the appellate court, upon the appeal.

Id.

§ 1330. Id.; on judgment, etc., directing convey. ance. If the appeal is taken from a judgment or order, directing the execution of a conveyance, or other instrument, it does not stay the execution of the judgment or order, until the instrument is executed, and deposited with the clerk, with whom the judgment or order is entered, to abide the direction of the appellate court.

Id., 337, extended to an appeal from an order. Waring v. Ayres, 12 Abb. 112; Worrall v. Munn, 17 N. Y. 475

1331. [Amended, 1879.] Security to stay execution on judgments for possession of real property.-If the appeal is taken from a judgment, which entitles the respondent to the immediate possession of real property, or from a judgment or order, directing the sale or the delivery of possession of real property, it does not stay the execution of the judgment or order. until the appellant gives a written undertaking, to the effect that he will not, while in possession of the property, commit, or suffer to be committed. any waste thereon; and that, if the judgment or order is affirmed, or the appeal is dismissed, he will pay the value of the use and occupation of the property, or the part thereof, as to which the judgment or order is affirmed, from the time of taking the appeal, until the delivery of the possession thereof, pursuant to the judgment or order, not exceeding a specified sum, fixed by

a judge of the court below. But if the judgment directs a foreclosure and sale of real property mortgaged, an undertaking is sufficient to stay the execution of the judgment, which is to the effect that if the judgment is affirmed, or the appeal is dismissed, the appellant will pay any deficiency which inay occur upon the sale, in discharging the sum to pay which the sale is directed, with interest, and the costs, and all expenses chargeable against the proceeds of the sale, not exceeding a specified sum, fixed by a judge of the court below.

Co Proc., 323. Watt v. Watt, 15 Abb. 367, note; Firene fas. Co. of Albany u. Bay, 2 Code R. 3.

1332. Construction of the last five sections. Where the judgment or order, from which an appeal is taken to the court of appeals, affirms a judgment or order, to the effect specified in either of the last five sections, the undertaking must be the same, as if the judg ment or order, from which the appeal is so taken, was to the same effect, as the judgment or order so affirmed. New. See Hinckley v. Kreitz, 58 N. Y. 583.

$ 1333. The last six sections qualified. The last six sections do not extend to a case, where it is specially prescribed by law, that an appeal may be taken, or the execution of a judgment or order appealed from may be stayed, without security, or where the security to be given, for either purpose, is specially regulated by law,

New.

1334. [Amended, 1879.] Undertaking may be in one instrument; form and service thereof. - Where two or more undertakings are required to be given as prescribed in this title they may be contained in the same instrument, or in different instruments at the option of the appellant. Each undertaking given as prescribed in this title must be executed by at least two sureties, and must specify the residence of each surety therein. A copy thereof, with a notice showing where it is filed, must be served on the attorney for the adverse party with the notice of appeal or before the expiration of the time of appeal.

Co. Proc., 340, am'd. N. Y. C. Ins. Co. v. Safford, 10 How. 344; Cush man v. Martines, 13 id. 402; Smith v. Heermance, 18 id. 261; Mills . Thursby, 11 id. 129.

§ 1555. Amended, 1891.] Exceptions to sureties; justincation. It is not necessary that the undertaking should be approved; but attorney for the responden may, within ten days after the service of a copy of the undertaking

with notice of the filing thereof, serve upon the attorney for the appellant, a written notice that he excepts to the sufficiency of the sureties. Within ten days thereafter, the sureties, or other sureties in a new undertaking to the same effect, must justify before the court below, or a judge thereof, 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 the 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 reference. If the court or judge finds the sureties sufficient he must indorse his allowance of them upon the undertaking, or a copy thereof, and a notice of the allowance must be served upon the attorney for he exceptant. The effect of a failure so 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.

Co. Proc., 341, am'd. Gopsill v. Decker, 4 Liun, 625. (1) Webster v. Stephens, 3 Abb. 227; 5 Duer, 690; Ballard v. Ballard, 18 N. Y. 491. (2) Kelsey v. Campbell, 38 Barb. 238; s. c., 14 Abb. 368; Chamberlain v. Dempsey, 13 d. 421; 22 How. 356; Hill v. Burke, 62 N. Y. 111. (3) Dres ser v. Brooks, 5 How. 75.

1336. Appeal from final judgment rendered after affirmance of interlocutory judgment, or denial of motion for new trial. - Where final judgment is rendered in the court below, after the affirmance, upon an appeal to the general term of that court, of an interlocutory judgment; or after the refusal, by the general term, of a new trial, either upon an application, made, in the first instance, at the general term, 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 general term, affirming the interlocutory judgment, or refusing the new trial. See 1350, post.

§ 1337. What questions are brought up for review. An appeal to the court of appeals from a final judg. ment, or from an order, granting or refusing a new trial in an action, or from a final order affecting a substantial right, made, either in a special proceeding, or upon & summary application after judgment in an action, brings

up for review, in that court, every question, affecting a substantial right, and not resting in discretion, which was determined by the general term of the court below, in rendering the judgment or making the order, from which the appeal is taken; except that a question of fact arising upon conflicting evidence, cannot be determined upon such an appeal, unless where special provision for the determination thereof is made by law.

New in form.

§ 1338. When questions of fact to be reviewed. Upon an appeal to the court of appeals from a judg ment, reversing a judgment entered upon a referee's report, or a decision of the court, upon a trial without a jury; or from an order granting a new trial, upon such a reversal; it must be presumed, that the judg ment was not reversed, or the new trial granted, upon a question of fact, unless the contrary clearly appears, in the body of the judgment or order appealed from. In that case, the court of appeals must review the determination of the general term of the court below, upon the questions of fact, as well as the questions of law.

Co. Proc., parts of 268 and 272. Williams v. Hernon, 3 Keyes, 99; 8. C., 33 How. 243; East River B'k v. Kennedy, 4 Keyes, 279; Coleman . Second Ave. R. R. Co., 38 N. Y. 202; 6 Trans. App. 146; Van Blarcom . B'uway B'k, 5 id. 136; Lobdell v. Lobdell, 2 td. 366; Marco v. Liverpool Ins. Co., 35 N. Y. 664; Baldwin v. Van Deusen, 37 id. 487; Shibley v. Angle, id. 631; Wright v. Hunter, 46 id. 409; Sands v. Crooke, id. 564; Dickson v. Broadway, 47 id. 507; Downing v. Kelly, 48 id. 433; Vermilyea . Palmer, 52 id. 471; Platt v. Platt, 58 id. 646; Taylor v. Guest, id. 262; Unger v. Forty-second St. R. R., 51 id. 497; Thornton v. Autenreith, 55 id. 659; Wallace v. Drew, 54 id. 678; Sheldon v. Sheldon, 51 id. 354.

§ 1339. When a case to be prepared, etc., for the appeal. Where an appeal to the court of appeals, from a judgment, rendered at a general term of the court be>w, upon a verdict, subject to the opinion of the court, has been perfected, a case, containing a concise statement of the facts,(1) of the questions of law arising thereupon, and of the determination of those questions by the general term,(2) must be prepared and settled, by or under the direction of the court below, and annexed to the judgment-roll.(3) 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 trans mitted to the court of appeals, instead of the case upon

which the judgment of the court below was rendered. The court below, 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 procure the case to be prepared or settled.

333, and part of § 265. Jaycox v. Cameron, 49 N. Y. v. Mattison, 15 Abb. 402: 25 N. Y. 211; Brewer v. (2) Smith v. Grant, 17 How. 381. (3) Reinmeller

Co. Proc., part of 645. (1) Purchase Orser, 2 Bosw. 365. v. Skidmore, 59 N. Y. 661.

TITLE III.

Appeal to the supreme court from an inferior court.

SEC. 1340. Appeal from judgment.

1341. Limitation of time; security.

1312. Appeal from order.

1343. Limitation of time and stay of proceedings.

1344. Appeal, where and how heard.

1345. Judgment or order, where entered.

1340. [Amended, 1888.] Appeal from judgment.— An appeal may be taken, to the supreme court, from a final judgment, rendered by a county court, or by any other court of record, possessing original jurisdiction, where an appeal therefrom to a court, other than the supreme court, is not expressly given by statute. And upon such appeal, an ordergranting or refusing a new trial for any of the causes mentioned in section 999 of this act, made by any of said courts, and questions of fact may be reviewed in the same manner, and to the same extent as questions of fact may now be reviewed, upon appeal to the general term of the supreme court from a final judgment and order, granting or refusing a new trial, rendered by the same court.

Id., 344, first sentence, am'd. Beatty v. Myers, 6 T. & C. 456; Hacker v. Ferrill, 66 Barb. 559; Carpenter v. Green, 4 Hun, 416: Quinn v. Weed, 5 id. 350; Osborne. Nelson, 59 Barb. 375: Ross v. Colby, a Hun, 546; Thurber v. Townsend, 22 N. Y. 517; Lynch v. McBeth, 7 How. 113; Dorr v. Birge, 5 id. 323; 8 Barb. 351; Moore v. Wood, 19 How. 406; Suydam v. Grand Street R. R. Co., 17 Abb. 304; Von Latham . Rowan, id. 238; Carter v. Werner, 27 How. 385; Monroe v. Monroe, id. 208; Whitney v. Wells, 28 id. 150; Simmons v. Sherman, 30 id. 4; Hammond v. Carpenter, 29_id. 43; Boughton v. Mitchell, id. 68; 19 Abb. 13; Dixon v. Buck, 42 Barb. 70; Taylor v. Scoville, 54 id. 34; Creunse v. Whipple, 34 How. 333.

1341. Limitation of time; security.-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 judg ment security must be given and the sureties may be excepted to, and must justify, as upon an appeal to the

*18 Abb. N. C. 63.