thirty days after notice of the judgment, present to a judge of the supreme court the return of the justice, or a copy thereof, with the decision of the county court, and obtain from such judge a certificate that he has examined the case, and in his opinion an appeal to the supreme court should be allowed.

The provision expecting appeals in cases arising in justices' courts resembles very closely a provision in laws of 1836, cap. 526, p. 794; and under that statute it was held (22 Wend., 627), that if the certificate was not obtained within thirty days after notice of the judgment, the right of appeal was irrevocably lost. There is no express power given by the code to enlarge the time for giving the certificate. Does any such power exist?

The notice of the judgment must be in writing (Code, s. 408). A verbal notice would not be sufficient. It is said to have been decided by Mr. Justice Harris, in an unreported case, that even if the party were present when the judgment was entered, he will not be deemed to have notice within the meaning of this section until a written notice be served on him.

It seems the appeal would be a nullity if this certificate were given after the expiration of the thirty days, and that the defect would not be cured by the respondent moving to dismiss the appeal. Seymour v. Judd, 2 Coms., 464.

In respect to causes originating in a justice's court, the supreme court has merely an appellate jurisdiction. It can only review and correct the decisions of the county court actually made, after a hearing of both parties.

It has no power to review a judgment rendered in the county court by default. Dorr v. Birge, 5 Pr. R., 323; 1 Code Rep., N. S., 74.

No appeal can be taken to the supreme court from the order of the county court reversing the judgment of a justice of the peace, where the county court has ordered a new trial, for the reason that the county court does not give any final judgment, and there is no provision for the entry of a judgment in such a case in the county court. Bennett v Harkness, 2 Code Rep., 100. And see supreme court rule 29.

§ 345. [294.] Existing suits. Security must be given, as upon appeal to court of appeals.-Security must be given upon such appeal, in the same manner, and to the same extent, as upon an appeal to the court of appeals.

On an appeal from an inferior court to the supreme court, the respondent should have information of the residence of the sureties. Semble that the undertaking must state their residence. Blood v. Wilder, 6 Pr. R., 446.

346. [295.] Existing suits. Appeals, where heard.Appeals in the supreme court shall be heard at a general term, either in the district embracing the county where the judgment or order appealed from was entered, or in a county adjoining that county, except that where the judgment or order was entered in the city and county of New-York, the appeal shall be heard in the first district.

An appeal from a surrogate's court admitting, or refusing to admit, a will to probate should, in the first instance, be heard at general term. Watts v. Aikin, 4 Pr. R., 439.

On an appeal from an inferior court to the supreme the day of filing the judgment roll in the appellate court.

court the date of issue is Anon., 2 Code Rep., 41.

§ 347. [296.] (Amended 1849.) Existing suits. Judgment on appeal, where entered and docketed.-Judgment upon the appeal shall be entered and docketed with the clerk in whose office the judgment roll is filed. When the appeal is heard in a county other than that where the judgment roll is filed, or is not from a judgment of a county court, the judgment upon the appeal shall be certified to the clerk with whom the roll is filed, to be there entered and docketed.

In an action of tort in a justices' court against several defendants, where the summons was served personally on only one of them, and upon the others by copy; and only the one personally served appeared before the justice, who rendered judg ment against all the defendants, it was held on appeal, that the justice erred in proceeding to judgment against those not personally served. Farrell v. Calkins, 10 Barb. S. C. R., 348.

And the county court having affirmed the justice's judgment as to the defendant who was personally served with the summons, and dismissed the appeal as against the other defendants; the supreme court reversed both judgments, with costs. Ib.

The rule is well settled in such cases, that an entire judgment against several defendants, whether in an action of tort, or upon contract, cannot be reversed as to one defendant and affirmed as to others. Ib.

It seems, that the code has not changed this rule. Ib.

Where a judgment entered at special term is appealed to the general term, and is there affirmed, a new judgment should not be entered. The simple judgment of affirmance, with the award of costs (if any), should be attached to the original roll, Eno v. Crooke, 6 Pr. R. 462.

It is improper to enter up two judgments in the same court for the same demand. Ib.

Semble, the old practice of entering a new judgment upon an appeal, will still apply where the appeal is brought from a judgment of an inferior court to the supreme court. Ib.

In all cases of appeal from the circuit, the judgment on the appeal should be certified by the clerk with whom the roll is filed, to be there entered and docketed. Andrews v. Durant, 6 Pr. R., 191.

Where the defendants enter judgment as of non-suit, and filed the roll in Ulster county; where the venue was laid, and on appeal to the general term at Albany judgment was affirmed, and the defendant entered judgment, and filed another roll in Albany county, it was held that the latter judgment was irregular. Ib.

CHAPTER IV.

Appeals in the supreme court, and the superior court and court of common pleas of the city of New York, from a single judge, to the general term.

SECTION 348. Appeals from circuits and special terms to same court in general

term. Security on appeal.

349. Orders by a single judge, may be appealed from in certain cases. Orders at chambers to be entered before appeal.

350.

§ 348. [297.] (Amended 1849, 1851, 1852.) Appeals from circuit and special term to same court in general term. Security on appeal. In the supreme court, the superior court of the city of New-York, and the court of common pleas for the city and county of New-York, an appeal upon the law may be taken to the general term from a judgment entered upon the report of the referees or the direction of a single judge of the same court, in all cases, and upon the fact when the trial is by the court or referees. Such an appeal, however does not stay the proceedings, unless security be given as upon an appeal to the court of appeals, or unless the court, or a judge thereof, so order, which order may be made upon such terms, as to security or otherwise, as may be just, such security not to exceed the amount required on an appeal to the court of appeals. In the supreme court the appeal must be heard in the same manner as if it were an appeal from an inferior court.

The section, before the amendment of 1851, was as follows:

In the supreme court, the superior court of the city of New York, and the court of common pleas for the city and county of New York, an appeal upon the law may be taken to the general term, from a judgment entered upon the direction of a single judge of the same court. Security must be given upon such appeal, in the same manner as upon an appeal to the court of appeals. In the supreme court, the appeal shall be heard in the same manner as if it were an appeal from an inferior court.

The amendments of 1852 are in italic.

See supreme court rule 27.

This section, before the amendment of 1851, was limited to appeals upon matters of law. Droz v. Oakley, 2 Code Rep., 83.

An appeal would not, under code of 1849, lie in the first instance to the general term, on a case containing questions of fact alone. Application had to be made, in the first instance, at the special term. Collins v. Alb. & Sch. R. R. Co., 5 Pr. R., 435; Hastings v. McKinley, 3 Code Rep., 10.

In Jones v. Kip, 1 Code Rep., 119, the New York common pleas held, that there could be no appeal from a judgment entered for want of an answer; but in Raynor

7. Clark, 3 Code Rep., 230, the supreme court held, that an appeal might be taken from such a judgment, on the ground that the complaint did not state facts sufficient to constitute a cause of action.

Upon appeal from a judgment on report of a referee, the date of issue on the general term calendar, must be the day on which the report is filed. Gould v. Chapin, 1 Code Rep. N. S., 74.

349. [299.] (Amended 1849, 1851, 1852.) Orders by a single judge may be appealed from in certain cases.-An appeal may in like manner, and within the same time, be taken from an order made at a special term, or by a single judge of the same court, or a county or special county judge, in any stage of the action, including proceedings supplementary to the execution, and may be thereupon reviewed in the following cases:

1. When the order grants or refuses, continues or modifies, a provisional remedy; or grants, refuses, or dissolves an injunction;

2. When it grants or refuses a new trial, or when it sustains or overrules a demurrer;

3. When it involves the merits of the action, or some part thereof, or affects a substantial right;

4. When the order in effect determines the action, and prevents a judgment from which an appeal may be taken;

5. When the order is made upon a summary application in an action after judgment, and affects a substantial right.

This section, before the amendment of 1851, was as follows:

An appeal may, in like manner, and within the same time, be taken from an order made by a single judge of the same court, and may be thereupon reviewed, in the following cases,

1. When the order grants or refuses a provisional remedy.

2. When it involves the merits of the action, or some part thereof.

3. When the order decides a question of practice which in effect determines the action without a trial, or precludes an appeal.

4. When the order is made upon a summary application in an action after judgment, and affects a substantial right.

The amendments of 1852 are the parts in italic.

The justices of the second judicial district, took into consideration the question as to what cases are appealable under this section, under the code of 1849, with a view to settle the practice in that district, and stated as their conclusions:

"In the first place we are of opinion, that this section relates only to appeals from 'orders and judgments in civil actions.' This is apparent, as well from the language of the section, as the language of section 323, which is the first section of the title, and declares that the only mode of reviewing a judgment or order, in a civil action, shall be that prescribed by this title,' and section 8, which assigns the second part of the code to civil actions commenced in the courts of this State,' &c.

"It follows from this view, that appeals in special proceedings are not regulated by section 349, but depend upon the pre-existing laws and practice.

"Consequently, where the proceeding is of an equitable nature, such as under the former practice would have come within the cognizance of a vice-chancellor, and was subject to appeal to the chancellor, in such cases an appeal now lies from a decision of a single justice to this court at a general term. This, of course, includes

the applications in regard to the removal of trustees, or the disposition of trust estates which have been before us.

"But where the special proceeding is of such a nature as not to fall within the jurisdiction of the former court of chancery, then, as a general rule, no appeal lies to the general term from the decision of the special term. The exceptions are where such appeal may be expressly given by statute, or existed according to the former practice of the supreme court. This rule is analogous to the rule formerly prevailing in the court of chancery and the supreme court, the powers of which are transferred to this court by the constitution and judiciary act of 1847."

The New York common pleas have made rules having reference to the review of decisions of motions by a single judge. See rules in appendix.

A writ of error (an appeal) lies only from final judgment, except in cases specially provided. Heckingbottom v. Shell, 3 Sme. & M., 588.

No appeal lies from the decision of a judge in granting or refusing an ex parte order. Savage v. Relyea, 3 Pr. R., 276; 1 Code Rep., 42; Nicholson v. Dunham, ib., 119.

Nor from an order refusing leave to reply, after the time for replying had past. Thompson v. Starkweather, 2 Code Rep., 41.

Nor from an order refusing to strike out from a pleading alleged immaterial, impertinent, or scandalous averments, because it cannot involve the merits. Whitney v. Waterman, 4 Pr. R., 315.

Nor from an order refusing to strike out matter as irrelevant and redundant in a pleading. Bedell v. Stickles, 3 Code Rep., 105.

An order of the special term opening a default, or letting in a party to defend, is not appealable; it does not involve the merits. Bolton v. Depeyster, 3 Code Rep., 141.

An order of the special term directing the board of trustees appointed by the late court of chancery to be prosecuted, is not appealable; it neither involves the merits nor is it a provisional remedy. Re White, 3 Code Rep., 141.

An order of the special term, granting a new trial and assessment of damages under the act of May 7, 1849, relating to plank roads, is not appealable. Re Cooperstown, &c., Plank Road Co., 3 Code Rep., 148.

Nor an order in the discretion of the court. See St. John v. West, 3 Code Rep., 85; Seeley v. Chittenden, 10 Barb., S. C. R., 303.

An order denying a motion "to modify an order referring the cause back to the referee and remove the referee," is not an appealable order. Perry v. Moore, ib., 221.

An order for an extra allowance for costs may be reviewed on appeal, when the motion for the allowance is made on affidavits, but not when made upon the minutes of trial. Dana v. Fielder, 1 Code Rep. N. S., 224.

An order granting a new trial, on the ground of newly-discovered evidence, and for surprise, does not involve the merits of the action. The new trial is granted to ascertain what the merits of the action are. Seeley v. Chittenden, 10 Barb. S. C. R., 303.

Where in an action to recover the possession of personal property, and damages for its detention, the plaintiff took judgment for want of an answer, and on notice to the defendant, who appeared to oppose, obtained an order of reference to ascertain his damages, occasioned by the taking and detaining, it was held that such order involved some part of the merits, and was an appealable order to the general term. Emerson v. Burney, 1 Code Rep. N. S., 189.

An order at special term, granting temporary alimony, is not appealable either as an order granting a provisional remedy or as involving the merits. Abbey v. Abbey, 6 Pr. R., 340 n.

An order granting an attachment for disobedience to an order granting temporary alimony, is not appealable. Ib.

An order for the plaintiff to pay the defendant's costs in an action where an offer has been made, and the plaintiff has recovered less than the sum mentioned in the offer, is an appealable order. McGrath v. Van Wyck, 1 Code Rep. N. S., 157.

In an action in which the court has power to order a reference, no appeal lies from an order ordering a reference. Gray v. Fox, 1 Code Rep. N. S., 334.

The decision as to whether or not an action involves the examination of a long account is a decision on a matter resting in the discretion of the judge making the order, and will not be reviewed on appeal. Ib.