Brooklyn, or in a justice's court of any of the cities of this

state.

$11. 1851.] The court of appeals shall have exclusive Jurisdiction to review, upon appeal, every actual determination hereafter made at a general term, by the supreme court, or by the superior court of the city of New York, or court of common pleas for the city and county of New York, in the following cases and no other:

1. In a judgment in an action commenced therein, or brought there from another court; and upon the appeal from such judg ment, to review any intermediate order involving the merits, and necessarily affecting the judgment:

2. In an order affecting a substantial right, made in such action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken.

3. In a final order, affecting a substantial right made in a special proceeding, or upon a summary application, in an action after judgment:

4. In an order granting a new trial, but such an appeal shall not be allowed in an action originally commenced in a court of a justice of the peace, or in the marine court of the city of New York, or in an assistant justice's court of that city, or in a justice's court of any of the cities of this state.

11. [1852.] The court of appeals shall have exclusive jurisdiction to review, upon appeal, every actual determination hereafter made at a general term, by the supreme court, or by the superior court of the city of New York, or the court of common pleas for the city and county of New York, in the following cases, and no other:

1. In a judgment in an action commenced therein or brought there from another court; and upon the appeal from such judgment, to review any intermediate order involving the merits, and necessarily affecting the judgment.

2. In an order affecting a substantial right, made in such action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken.

3. In a final order affecting a substantial right made in a special proceeding, or upon a summary application, in an action, after judgment.

But such appeal shall not be allowed in an action originally commenced in a court of a justice of the peace, or in the marine court of the city of New York, or in an assistant jus

tice's court of that city, or in a justice's court of cities of this state.

justice's court of any of the

11. [1857.] The court of appeals shall have exclusive jurisdiction to review, upon appeal, every actual determination hereafter made at a general term by the supreme court, or by the superior court of the city of New York, or the court of common pleas for the city and county of New York, or the superior court of the city of Buffalo, in the following cases, and no other:

1. In a judgment in an action commenced therein or brought there from another court; and upon the appeal from such judgment, to review any intermediate order involving the merits, and necessarily affecting the judgment.

2. In an order affecting a substantial right, made in such action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken, and when such order grants a new trial; but no appeal to the court of appeals, from an order granting a new trial, shall be effectual for any purpose, unless the notice of appeal contain an assent, on the part of the appellant, that if the order be affirmed, judgment absolute shall be rendered against the appellant. Upon every appeal from ar. order granting a new trial, if the court of appeals shall determine that no error was committed in granting the new trial, they shall render judgment absolute upon the right of the appellant; and after the proceedings are remitted to the court from which the appeal was taken, an assessment of damages or other proceeding to render the judgment effectua! may be there had, in cases where such subsequent proceedings are requisite.

3. In a final order affecting a substantial right made in a special proceeding, or upon a summary application, in an action after judgment. But such appeal shall not be allowed in an action originally commenced in a court of a justice of the peace, or in the marine court of the city of New York, or in an assistant justice's court of that city, or in a justice's court of any of the cities of this state, unless any such general term shall, by order duly entered, allow such appeal before the end of the next term after which such judgment was entered. The foregoing prohibition shall not extend to actions discontinued before a justice of the peace, and prosecuted in another court, pursuant to sections sixty and sixty-eight of this Code.

11. [1862.] The court of appeals shall have exclusive jurisdiction to review, upon appeal, every actual determination

hereafter made at a general term by the supreme court, or by the superior court of the city of New York, or the court of common pleas for the city and county of New York, or the superior court of the city of Buffalo, in the following cases, and

no other:

1. In a judgment in an action commenced therein or brought there from another court; and upon the appeal from such judgment, to review any intermediate order involving the merits, and necessarily affecting the judgment.

2. In an order affecting a substantial right, made in such action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken, and when such order grants or refuses a new trial; but no appeal to the court of appeals, from an order granting a new trial, shall be effectual for any purpose, unless the notice of appeal contain an assent, on the part of the appellant, that if the order be affirmed, judgment absolute shall be rendered against the appellant. Upon every appeal from an order granting a new trial, if the court of appeals shall determine that no error was committed in granting the new trial, they shall render judgment absolute upon the right of the appellant; and after the proceedings are remitted to the court from which the appeal was taken, an assessment of damages or other proceeding to render the judgment effectual may be there had, in cases where such subsequent proceedings are requisite.

3. In a final order affecting a substantial right made in a special proceeding, or upon a summary application, in an action after judgment. But such appeal shall not be allowed in an action originally commenced in a court of a justice of the peace, or in the marine court of the city of New York, or in an assistant justice's court of that city, or in a justice's court of any of the cities of this state, unless any such general term shall, by order duly entered, allow such appeal before the end of the next term after which such judgment was entered. The foregoing prohibition shall not extend to actions discontinued before a justice of the peace and prosecuted in another court, pursuant to sections sixty and sixty-eight of this Code.

11. [1865.] The court of appeals shall have exclusive jurisdiction to review, upon appeal, every actual determination hereafter made at a general term by the supreme court, or by the superior court of the city of New York, or the court of common pleas for the city and county of New York, or the superior court of the city of Buffalo, in the following cases, and no other:

1. In a judgment in an action commenced therein or brought there from another court; and upon the appeal from such judgment, to review any intermediate order involving the merits, and necessarily affecting the judgment.

2. In an order affecting a substantial right, made in such action, when such order in effect determines the action, and prevents a judgment from which an appeal might be taken, and when such order grants or refuses a new trial; but no appeal to the court of appeals, from an order granting a new trial, shall be effectual for any purpose, unless the notice of appeal contain an assent, on the part of the appellant, that if the order be affirmed, judgment absolute shall be rendered against the appellant. Upon every appeal from an order granting a new trial, if the court of appeals shall determine that no error was committed in granting the new trial, they shall render judgment absolute upon the right of the appellant; and after the procedings are remitted to the court from which the appeal was taken, an assessment of damages or other proceeding to render the judgment effectual may be there had, in cases where such subsequent proceedings are requisite.

3. In a final order affecting a substantial right made in a special proceeding, or upon a summary application, in an action after judgment.

But such appeal shall not be allowed in an action originally commenced in a court of a justice of the peace, or in the marine court of the city of New York, or in an assistant justice's court of that city, or in a justice's court of any of the cities of this state, unless any such general term shall, by order duly entered, allow such appeal before the end of the next term after which such judgment was entered. The foregoing prohibition shall not extend to actions discontinued before a justice of the peace, and prosecuted in another court, pursuant to sections sixty and sixty-eight of this Code.

4. Whenever the decision of any motion heretofore made, or of any motion hereafter to be made, in the supreme court of this state, at a special term thereof, involves the constitutionality of any law of this state, or has been or shall be placed, in the opinion or reasons for such decision of the justice making such decision, upon the unconstitutionality of such law, then an appeal shall lie and may be made from such decision, or from the order entered or to be entered upon such decision, to the general term of said court, and an appeal shall also lie and may be made from the decision of such general term, and from any order entered or to be entered thereon, to the court

of appeals; provided, however, that the time for appealing from such decision, or from such order, shall not be extended hereby.

And such appeal at the general term, and at the court of appeals, shall be heard as a non-enumerated motion.

Questions.

3. Q. What is the constitutional provisions of 1846, organizing this court?

4. Q. Is the court of appeals a court of general jurisdiction?

5. Q. What has been decided respecting actual determinations?

6. Q. Does this section apply to determinations made before the Code took effect?

7. Q. What review may be had in cases pending but decided after the Code took effect on questions of fact?

8. Q. How is the right of appeal affected in suits pending when the Code took effect?

9. Q. Can an appeal be taken to the court of appeals except upon questions of law?

10. Q. Can any case be reviewed on the facts?

11. Q. Can an appeal be taken to the court of appeals except upon a final order or judgment? 12. Q. What orders and judgments are considered final from which an appeal may be taken!

13. Q. What orders and judgments have been considered not appealable?

14. Q. What exceptions, special verdicts and facts found by referees, should contain to authorize a review ?

15. Q. When may or may not orders in special proceedings and summary applications be reviewed?

16. Q. When will the New York common pleas refuse to allow an appeal to the court of appeals in an action commenced in the marine or district court?

17. Q. What is the jurisdiction of the court of appeals in reference to suits in the former court of errors?

3. Q. What is the constitutional provision of 1846 organizing this court? A. There shall be a court of appeals composed of eight judges, of whom four shall be elected by the electors of the state, for eight years, and four selected from the class of justices of the supreme court having the shortest time to serve. Provision shall be made by law for designating one of the number elected as chief judge, and for selecting such justices of the supreme court, from time to time, and for so classifying those elected, that one shall be elected every second year. (Const. 1846, art. 6, § 2.)

4. Q. Is the court of appeals a court of general jurisdiction?

4. In Doty agt. Brown, 4 How., 430, Special Term, June, 1850, MASON, J., it was decided that the court of appeals is a court of general jurisdiction whose jurisdiction is to be presumed, in contradistinction to courts of inferior and limited jurisdiction which must be shown by a party claiming under their judgments.

In Townsend agt. The Masterson, &c., Stone Dressing Co., 15 N. Y. R., 589, DENIO, J., it was decided, that it has jurisdiction to enforce stipulations made by the parties in the subordinate courts, in causes appealed to this court."

5. Q. What has been decided respecting actual determinations?

4. In Raynor agt. Clark, 7 Barb., 581, General Term, January, 1850, ALLEN, J., it was decided, that it is only from actual determinations made at general term that appeals lie to this court; questions upon which the general term have actually passed.

In Gridley agt. Daggett, 6 How., 280, Court of Appeals, January, 1852, RUGGLES, J., it was decided, that an appeal will not lie upon a judgment entered pro forme by stipula tion of the respective attorneys for the purpose of an appeal to this court; it must be an actual determination by the court below.

In Lake agt. Gibson, 3 How., 420, and 2 Comst., 188, THE COURT decided that an appeal will not lie to bring up the record merely.

In Searthout agt. Curtis, 5 How., 200, and 4 Comst., 416, January, 1851, BRONSON, J., it was decided, that the merits of an order confirming the report of a referee (computing