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wise prescribed in section 1367 of this act; and except, also, that, where the judgment is for a sum less than twenty-five dollars, exclusive of costs, the direction to satisfy the judgment out of the real property of the judgment debtor must be omitted. In that case the provisions of this act, relating to the satisfaction of an execution out of the judgment debtor's real property, are not applicable thereto.

Code of Proc., 64, subd. 13. Ginochio v. Figari, 2 Abb. 185; Leland v. Smith, 11 Abb. N. S. 231; 3 Daly, 309.

TITLE VIII.
Appeals.

ARTICLE 1. Appeals generally.

2. Appeal where a new trial is not had in the appellate court. 3. Appeal for a new trial in the appellate court.

ARTICLE FIRST.

APPEALS GENERALLY.

SEC. 3044. Justice's judgment reviewed by appeal.

3045. Who may appeal. To what court appeal to be taken.

3046. Appeal; when and how taken.

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3045. Who may appeal. To what court appeal to be taken. -An appeal may be taken by any party aggrieved by the judgment. Where the judgment was rendered by a justice of the peace of the city of Buffalo, the appeal must be to the superior court of that city; in every other case, it must be to the county court of the county where the judgment was rendered.

Code of Proc., part of 22 325 and 352; Mattison v. Jones, 9 How. 152; Jones ». Owen, 5 Hun, 339; Glassner v. Wheaton, 2 E. D. Smith, 352 Robbins . Codman, 4 id. 315; Slaman v. Buckley, 29 Barb. 289: Bissell v. Marshall, 6 Johns. 100: see Kohlbrenner r. Elsheimer, 19 Hun, 88. 量

3046. [Amended, 1882.] Appeal; when and how taken. -An appeal must be taken within twenty days after the entry of the judgment in the justice's docket; except that, where a defendant appeals from a judgment rendered in an action, wherein he did not appear, and the summons was not personally served upon him, the appeal may be taken within twenty days after personal service upon him, on the part of the plaintiff, of written notice of the entry of the judgment; but not after the expiration of five years from the entry of the judgment. An appeal is taken by serving upon the justice by whom the judgment was rendered, and upon the respondent, a written notice of appeal, subscribed either by the appellant, or by his attorney in the appellate court.

Code of Proc., part of 22 353 and 354. Thomas v. Thomas, 18 Hun. 481: Young v. Whitcombe, 46 Barb. 615; Fuchs v. Pohlman, 2 Daly, 210; Purdy. Harrison, 6 N. Y. Leg. Obs. 393; 1 C. R. 54; Tullock v. Bradshow, 7 N. Y. Leg. Obs. 318; Seymour . Judd, 2 N. Y. 464; Elias v. Babcock, 12 Abb. N. S. 288; Pearson v. Lovejoy, 53 Barb. 407; 35 How. 193; Miller . Perine, 1 Hun, 620; People ex rel. Eldridge, 7 How. 108; Van Hensen v. Kirkpatrick, 5 id. 422; Southard v. Phillips, 7 Hun, 18; Griswold v. Van Deusen, 2 E. D. Smith, 178; Eldridge v. Underhill, 17 Hun, 211; Partridge v. Thayer, 2 Sandf. 227; People ex rel. Monroe, 3 Wend. 426; Hall v. Sawyer, 47 Barb.116; Andrews v. Long, 19 Hun, 303; reversed on other grounds, 9 Week. Dig. 513; Burrow v. Norton, 2 Hun, 550; 48 How. 132.

3047. Service of notice upon justice; payment of costs and fee.-Service of the notice of appeal upon the justice, must be made by delivering it to him personally, or to his clerk, appointed pursuant to law; but if the justice is dead, or if neither he nor his clerk can, after reasonable diligence, be found within the county, service of the notice upon the justice may be made by delivering it to the clerk of the appellate court. Unless the justice is dead, the appellant must, at the time of serving the notice, pay to the person to whom it is delivered the costs of the action, included in the judgment,

and the sum of two dollars, as the fee of the justice for making the return.

Code of Proc., part of 22 354 and 359. Earll v. Chapman, 3 E. D. S. 216; Griswold v. Van Deusen, 2 id. 178.

S3048. Service of notice upon respondent.

Service of the notice of appeal upon the respondent may be made, by delivering it, in any part of the State, to the respondent personally, or in one of the following methods:

1. If the respondent is a resident of the county, by leaving it at his residence, with a person of suitable age and discretion. If he is not a resident of the county, and the person who appeared as his attorney upon the trial is a resident thereof, it may be served upon the attorney, either personally, or by leaving it at his resi dence, with a person of suitable age and discretion.

2. If service within the county cannot be made, with due diligence, upon the respondent personally, or in the method prescribed in the foregoing subdivision, the notice of appeal may be served upon him, by delivering it to the clerk of the appellate court.

Code of Proc., part of 2 354. Lake v. Kels, 11 Abb. N. S. 37.

S3049. Amendment, when allowed, -- Where the appellant, seasonably and in good faith, serves the notice of appeal, upon either the justice or the respondent, 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, the appellate court, upon proof by affidavit of the facts, may, in its discre tion, permit the omission to be supplied, or an amend ment to be made, upon such terms as justice requires. Code of Proc., 2327. Burrows v. Norton, 2 Hun, 550; 48 How. 132; Scarborough v. Dady, 19 Alb. L. J. 164; Roberts v. Davids, 12 Hun, 394; Thomas v. Thomas, 18 id. 481; Eldridge v. Underhill, 17 id. 241.

§ 3050. Undertaking to stay execution upon judg. ment. If the appellant desires a stay of execution, he must give a written undertaking, executed by one or more sureties, approved by the justice who rendered the judgment, or by a judge of the appellate court, to the effect that, if the appeal is dismissed; or if judg ment is rendered against the appellant in the appellate court, and an execution issued thereupon is returned wholly or partly unsatisfied; the sureties will pay the

amount of the judgment, or the portion thereof remain. ing 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 judg. ment ; or, if the judgment in the justice's court is for the recovery of a chattel, that the sureties will pay the sum fixed by that judgment as the value of the chattel, together with the damages, if any, awarded for the taking, withholding, or detention thereof. A copy of the undertaking, with a notice of the delivery thereof, must be served with the notice of appeal, and in like manner. Section 1335 of this act applies to such an undertaking.

Code of Proc., 8 355 and 356. People ex rel. v. Orleans C. P., 2 Wend. 292; People ex rel. e. Chautauqua C. P., ul. 618; Brush v. Lee, 18 Abb. 398; Doolittle v. Dininny, 31 N. Y. 350; Hawkins . Mayor, 5 Abb. 344; Conway v. Hitchins, 9 Barb. 378; Pruyn v. Tyler, 18 How. 331; Hummer. ton v. Hay, 65 N. Y. 380; Smith v. Crouse, 21 Barb. 433; Onderdonk v. Emmons, 2 Hilt. 504; 9 Abb. 187; 17 How. 515; Ross v. Ferris, 18 Hun,

210..

3051. Proceedings; how stayed.--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 undertaking, certified 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.

Id., 357. Jones v. McCarl, 7 Abb. 418; Smith v. Allen, 2 E. D. Smith,

259.

3052. Id.; when justice is dead, etc.- 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 3048 of this act, for service of a notice of appeal upon him. The filing of the undertaking has the same effect, as the delivery thereof to the jus tice; and a copy thereof certified by the county clerk, served upon the officer holding an execution, has the

same effect, as if it was certified, as prescribed in the last section.

Id., 358.

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3053. Return. The justice must, after ten and within thirty days from the service of the notice of appeal, and the payment of the costs and fee, as prescribed in section 3047 of this act, make a return to the appellate court, annex thereto the notice of appeal and the undertaking, if any has 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 evidence 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 the 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 judgment; with a brief statement of the amount and nature of the claims litigated by the parties. But he need not return the evidence, or any part thereof, unless he is required so to do by the spe cial order of the appellate court.

Id., 360, amended. Balja v. Rowley, 37 How. 120; Day v. Wilber, 2 Cai. 134; Ogden v. Sanderson, 3 E. D. Smith, 166; Cabre v. Sturges, 1 Hilt. 160; Belshaw v. Colie, 3 C. R. 184; Peters v. Diossy, 3 E. D. Smith, 115; Smith v. Van Brunt, 2 id. 534; Phillips v. Caswell, 4 Cow. 505; Fox v. Johnson, 3id. 20; Rudd v. Baker, 7 Johns. 548; Tompkins . Sands, 8 Wend. 462; McDonnell v. Buffum, 31 How. 154; Orcutt v. Cahill, 24 N. Y. 578; Hanee v. Cayuga & Susq. R. R. Co., 26 id. 428; Calligan v. Mix, 12 How. 495; Striker v. Mott, 6 Wend. 465; Potter v. Whittaker, 27 How. 10; Avery v. Woodbeck, 5 Lans. 498; Spring v. Baker, 1 Hilt.526; Keating v. Serrell, 5 Daly, 278; Hyland v.Sherman, 2 E. D. Smith, 234; Lynsky v. Pendergrast, id. 43; Bates v. Conklin, 10 Wend. 389.

§ 3054. Id.; when justice has gone out of office. — Where the justice has gone out of office, he must, nevertheless, make a return in the same manner, and his return has the same effect, as if he remained in office. Code of Proc., 361.

§ 3055. Further return; how compelled.—If the return is defective, the appellate court may direct the justice to make a further or amended return, as often as is necessary. The appellate court may compel the

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