amount due) taken by default at special term will not come under review on appeal from the judgment or decree.

In Beecher agt. Conradt, 11 How., 183, Court of Appeals, March, 1855, DEAN, J., it was decided that, where the record shows an actual determination made at general term, although it does not affirmatively appear that the case was brought there by appeal, this court will not go behind the record to inquire whether there was a judgment at special term from which an appeal had been taken, but will presume that the case was regularly at general term by appeal.

In McGregor agt. McGregor, 32 N. Y. R., 479, June, 1865, WRIGHT, J., it was decided that, where the appeal is from an order of the general term of the supreme court, affirming an order at special term, awarding an extra allowance of costs, and the case sets forth no judgment, nor does it appear that any judgment has been entered, the appeal should be dismissed.

In Gormly agt. McIntosh, 22 Barb., 276, General Term, September, 1856, E. DARWIN SMITH, J., it was decided that this court has power to review, upon appeal, every actual determination made by the supreme court at general term, and the general term has the same power to review every judgment in the county court.

In The People agt. Gale, 22 Barb., 503, General Term, 1856, ROOSEVELT, J., it was decided, that the marine court in the city of New York is placed, in reference to the common pleas, on the same footing precisely as that upon which the supreme court stands in reference to the court of appeals. No review can be had in either appellate court until the general term has made an actual determination of the controversy.

In Seneca Nation agt. Knight, 19 N. Y. R., 587, September, 1859, S. B. STRONG, J., it was decided, that where the general term, on the request of the party moving for a new trial, the other party not appearing to oppose, take the papers and examine the questions involved, their decision is an actual determination, from which an appeal lies.

In Cook agt. The New York Floating Dry Dock Co., 18 N. Y. R., 229, December, 1858, DENIO, J., it was decided, that an actual determination, from which an appeal will lie, is made where the general term reverses an order of the special term granting a new trial on a case and exceptions, after judgment on a verdict, and final judgment is entered on such reversal by the general term. Also, that an appeal from an order of the general term affirming an order of special term, allowing extra costs after the judgment, would lie, and the order was reviewable. This is doubted by three of the judges, S. L. SELDEN, I. HARRIS and S. B. STRONG, in an able dissenting opinion by S. B. STRONG, J., from the minority of the court, holding that an order for an extra allowance of costs is not an "intermediate order involving the merits," within the provisions conferring authority to review intermediate orders, and it does not affect the cause of action, consequently not the merits. [It seems that the majority of the court must have assented to this view, as it is not discussed nor decided expressly in the prevailing opinion.-ED.] Also that the general term could not render judgment in this case; it could only be done by the special term, under the provisions of the Code. An actual determination by the general term can only be pronounced on appeal, or in special cases where the general term may give judgment.

In Hollister Bank of Buffalo agt. Vail, 15 N. Y. R., 593, June, 1857, THE COURT decided that an appeal from the decision of the general term affirming an order for judg ment, on the frivolousness of a demurrer made at special term, in an action to foreclose a mortgage, and also an appeal from a judgment of foreclosure and sale at special term, do not constitute such an actual determination as is required in order to be reviewed in this

court.

6. Q. Does this section apply to determinations made before the Code took effect? A. In Mayor, &c., agt. Schermerhorn, 3 How., 335, Court of Appeals, September, 1848, BRONSON, J.; Spaulding agt. Kingsland, 3 How., 337, Court of Appeals, September, 1848, BRONSON, J.; and in Rice agt. Floyd, 3 How., 367, Court of Appeals, January, 1849, BRONSON, J., it was decided, that this section is not applicable to an order, judg ment or decree, appealable under the old law, made before the Code took effect, on the 1st of July, 1848; it only affects determinations made after 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?

A. In Dunham agt. Watkins, 2 Kern., 556, June, 1855, DENIO, J., it was decided, that in a suit originally commenced in chancery, before the Code took effect, and subsequently heard upon pleadings and proofs, and a decree entered on appeal at general torm, before the amended Code of 1851, but no exceptions or facts found, the court of Appeals were authorized on appeal to examine the evidence in determining the case.

8. Q. How is the right of appeal affected in suits pending when the Code took effect? A. In Selden agt. Vermilyea, 3 How., 338, Court of Appeals, November, 1848, BRONSON, J.; and in Butler agt. Miller, 3 How., 339, Court of Appeals, September, 1848, BRONSON, J., it was decided, that the right of appeal from an order of the supreme court, at general term, depends on the Code. where the order is made after the 1st of

July, 1848, although the suit was commenced prior thereto. Where an order dissolving an injunction is made since the 1st of July, 1848, the right of appeal is under the Code, although the suit was commenced prior thereto; but an appeal will not lie at all in such

a case.

In Grover agt. Coon, 3 How., 341, Court of Appeals, November, 1848, BRONSON, J., it was decided, that the 282d section of the Code, providing for docketing judgments and entering security on appeal thereon, applies to proceedings subsequent to the 1st day of July, 1848, in suits that were pending on that day.

In Farmers' Loan and Trust Co. agt. Carroll, 4 How., 211, Court of Appeals, January, 1850, BRONSON, J., it was decided, that in all cases where the suit was commenced before the Code and determined afterwards, the parties must govern themselves on appeal, as far as may be practicable by the new machinery; but where that will not answer purpose, the parties are at liberty to resort to the former practice, unless that course has been plainly forbidden by the legislature.

the

In Thompson agt. Blanchard, 4 How., 262, General Term, 1850, PAIGE, J., it was decided that, although in suits pending when the Code took effect, it was necessary, in order to bring the case properly before the general term, from the decision of a single justice at special term, that the old practice should be pursued of moving on a case, or bill of exceptions, to set aside a non-suit or verdict; yet the plaintiff, by acquiescing in the mode adopted by the defendant in bringing an appeal in pursuance of the Code, waived any objection which he might have taken in limne to the proceedings of the defendant and to the jurisdiction of this court.

In Dunlap agt. Edwards, 3 Comst., 343, April, 1850, PRATT, J., it was decided, that an appeal under the Code, from an order denying a motion to set aside a judgment which was perfected before the Code took effect, could not be allowed; such a motion was not a future proceeding in a pending suit. When judgment was perfected before the Code, the action was not pending, but terminated.

In Tilley agt. Phillips, 3 How., 365, 1 Comst., 610, January, 1849, BRONSON, J., it was decided: That an appeal will not lie from an order granting a new trial made upon bill of exceptions, under the act of December, 1847, where the order was made after the 1st of July, 1848, the suit having been commenced before that time. The 11th section of the Code repealed the act of December, 1847.

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

4. In Livingston agt. Radcliffe, 3 How., 417, Court of Appeals, March, 1849, it was decided by the COURT, that there can be no appeal from a judgment rendered on a trial under the judiciary act of 1847, nor under the Code, except upon a bill of exceptions or special verdict presenting questions of law.

In Wright agt. Douglass, 3 How., 418, Court of Appeals, March, 1849, it was decided by the COURT, that the Code has not given a review in this court where none existed before; an appeal has been substituted for a writ of error, consequently an appeal will not lie on a decision of the supreme court on a case; there must be a bill of exceptions or special verdict.

In Sturgis agt. Merry, 3 How., 419, Court of Appeals, March, 1849, the COURT decided that an appeal will not lie to review a judgment upon a roport of referees upon a case containg merely the evidence before the referees. A case should be settled by the court below and inserted in the record stating facts and not the mere evidence of facts, so as to present nothing but questions of law to the appellate court.

In King agt. Dennis, 3 How., 420, Court of Appeals, March, 1849, and in McCracken agt, Cholwell, 4 Seld., 133, the COURT decided, that an exception to the decisions at a general term does not authorize a review in this court. Where the general term deny a new trial after verdict, this court cannot review such decision except upon a bill of exceptions taken on the trial, or a special verdict presenting questions of law.

In Western agt. The Genessee Mutual Insurance Co., 2 Kern, 264, March, 1855, MARVIN, J.; Dunham agt. Watkins, 2 Kern, 560, June, 1855, DENIO, J.; Newton agt. Bronson, 3 Kern, 591, March, 1856, DENIO, J.; Griffin agt. Marquardt, 17 N. Y. R., 33, March, 1858, COMSTOCK, J.; Hoyt agt. Thompson, Executors, 19, N. Y. R., 212, June, 1859, COMSTOCK, J.; Borst agt. Spelman, 4 Comst., 289, December, 1850, PRATT, J.; Morgan agt. Bruce, 1 Code, R. N. S., 367, N. Y. Common Pleas, General Term, 1852, WOODRUFF, J; Miller agt. Schuyler. 20 N. Y. R., 525, December, 1859, JOHNSON, J., and Ingersol agt. Bostwick, 22 N. Y. R., 425, December, 1860, WRIGHT, J., it was decided that this court can only examine such questions of law as arise upon the special verdict, case or exceptions; it can correct errors of law, but if none are found in the record, it cannot review mistakes of discretion. This court can correct errors of law only.

In Griscom agt. The Mayor, &c., of New York, 2 Kern. 588, June, 1855, DENIO, J. Carman agt. Pultz, 21 N. Y. R., 551, June, 1860, SELDEN, J.; Grant agt. Morse, 22 N. Y. R., 324, September, 1860, COMSTOCK, Ch. J., and Phelps agt. McDonald, 26 N. Y. R., 83, December, 1862, DAVIS, J., it was decided, that error on the part of the court below will not be presumed, but must be made clearly to appear. The appellant must so present the facts as to show affirmatively that an error has been committed. This

court will presume nothing in favor of the party alleging the error; but if compelled to resort to presumptions at all will adopt such only as will sustain the judgment.

This

In Reformed Protestant Dutch Church of Westfield agt. Brown, 24 How., 86, Court of Appeals, September, 1861, LOTT, J., it was decided, that where the decision of the referee is affirmed by the supreme court, it is conclusive on the question of fact in the case. court will, therefore, assume that the facts thus found by the referee are correctly found; and where there are no exceptions taken during the progress of the trial, the only question to be reviewed, will be, whether these facts justified the conclusion of law to which the referee arrived.

In Davis agt. Allen, 3 Comst., 173, December, 1849, JEWETT, J., it was decided, that if this court should think that referees had come to a wrong conclusion upon a mere matter of fact, it has no jurisdiction to reverse the judgment of the supreme court for that reason. Although the court in which the original action is pending may set aside the report as against the weight of evidence or without sufficient evidence to support it or grant a new trial upon newly discovered facts.

In Metcalf agt. Mattison, 32 N. Y. R., 464, June, 1865, PORTER, J., it was decided, that it is only in clear cases that this court will reverse a judgment for the refusal of a referee to nonsuit the plaintiff when the findings of fact have been approved by the court below.

In Easterly agt. Cole, 3 Comst., 504, July, 1850, BRONSON, J., and in Sisson agt. Barrett, 2 Comst., 407, October, 1849, BRONSON, J., it was decided, that a special verdict must find facts, and not the mere evidence of facts. It must not leave a part of the facts to be presumed, but must find all that are deemed material, so that this court will have nothing to do but to declare the law.

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

A. In Griscom agt. The Mayor, &c.. of New York, 2 Kern. 589, June, 1855, DENIO, J.; Wilds agt. Hudson River Railroad Co., 23 How., 494, March, 1862, Court of Appeals, GOULD, J.; Ernst agt. Hudson River Railroad Co., 24 How., 97, Court of Appeals, Sept., 1862, E. DARWIN SMITH, J., and in Sandford agt. The Eighth Avenue Railroad Co., 23 N. Y. R., 344, June, 1861, COMSTOCK, J., it was aecided, that there are many cases, such as appeals from orders made upon special proceedings, from decrees of surrogates and cases of negligence against common carriers, where this court on review inust necessarily look into the facts, in order to properly determine the questions of law arising therein. But, there can be no review of the evidence in any case by this court.

In Robinson agt. Raynor, 28 N. Y. R., 494, January, 1864, SELDEN, J., it was decided, that in most, if not in all, cases of appeals from the decisions of surrogates, the whole case is to be examined by the appellate court, as well upon the facts as upon the law, so far as questions are presented by the appeal; and this rule applies as well to the court of appeals as to the supreme court.

In Macy agt. Wheeler, 30 N. Y. R., 231, March, 1864, WRIGHT, J., it was decided, that the supreme court has the undoubted power and right to examine the evidence at large, and upon the whole case, including the law and the facts, to set aside a verdict and grant a new trial. That court can, from the evidence, reach different conclusions of fact from those found by the jury. In reviewing trials, it has power to pass upon questions of fact as well as law; whilst the court of appeals is confined to the correction of errors of law only. Having no power to review any questions of fact determined in the subordinate courts, when a new trial is granted the court of appeals is obliged to affirm the order, if it can stand consistently with any view to be taken of the evidence given at the trial, where the trial has been by jury.

In Bergin agt. Wemple, 30 N. Y. R., 319, March, 1864, WRIGHT, J., it was decided, that the jurisdiction of this court extends only to the examination of the legal conclusions of the judge or referee before whom a cause is tried, from the facts found by him. The court has no power to look into the evidence, or the case at large, for the purpose of reviewing or determining questions of fact.

11, Q. Can an appeal be taken to the court of appeals except upon a final order or judgment? In Paddock agt. Springfield Fire and Marine Insurance Co., 2 Kern, 592, June, 1855, JOHNSON, J., it was decided, that the jurisdiction of this court is to review final judgments. Therefore, where an appeal is taken upon a judgment on demurrer, leaving issues of fact in the case undisposed of, the appeal cannot be sustained.

In Harris agt. Clark, 4 How., 79, Court of Appeals, July, 1849, JEWETT, J.; Cruger agt. Douglass, Comst., 571, 4 How., 215, January, 1850. BRONSON, J.; Chittenden agt. Missionary Society of M. E. Church, &c., 8 How., 327, Court of Appeals, September, 1853, MASON, J.; Tompkins agt. Hyatt, 19 N. Y. R., 535, June, 1859, DENIO, J., it was decided, that where there are further questions and directions reserved in a decree or judgment, until the coming in of a report of referee or where a reference is ordered to ascertain shares on a sale of lands and the disposition of the proceeds, &c., the judgment or decree is not final so as to authorize an appeal to this court.

In Lawrence and others agt. The Farmers' Loan and Trust Co., 15 How., General Term, 1857, BOSWROTH, J.; In The People of the State of New York agt. McCumber and others, 15 How., 187, Special Term, 1858, HOGEBOOM, J,, it was decided that, for the purpose

of an appeal to review questions named in section 268 of the Code, it is as necessary that the judgment should be final, within the meaning given to that word by the Code, as to authorize an appeal from it to the court of appeals. The word "judginent,” as used in sections 11, 245, 268 and 348, means precisely the same thing.

In Moore agt. Wood, 19 How., 407, General Term, May, 1860, EMOTт, J., it was decided, that by an appeal from an order "involving the merits and necessarily affect ing the judgment," the legislature intended that an order, to be appealable, must both involve the merits and affect the judgment.

12. Q. What orders and judgments are considered final, from which an appeal may be

taken?

A. In Butler agt. Miller, 3 Hor., 339, Court of Appeals, September, 1848, it was decided, BRONSON, J., that an appeal taken under the judiciary act of 1847, prior to July 1st, 1848, from a decision of the supreme court granting a new trial on a bill of exceptions, may be prosecuted under the Code. Whether the appeal could be allowed if the action was pending on the 1st of July, 1848. Quere?

In Wagener's executors agt. Riley, &c., 4 How., 195, Court of Appeals, September, 1849, and in Misserve agt. Sutton, 3 Comst., 545, July, 1850, THE COURT decided that an appeal is allowed from the judgment of the general term, reversing a final decree of a surrogate and ordering an accounting of executors.

In Swarthout agt. Curtis, 4 Comst., 416, 5 How., 198, January, 1851, it was decided, BRONSON. J., that, although a judgment or decree of the supreme court is not final where there is a reference pending and undetermined, yet on the coming in and confirmation of the referee's report, it becomes final, and an appeal then taken from the decree or judgment is authorized.

In Belknap agt. Waters, 1 Kern., 478, September, 1854, it was decided, JOHNSON, J., that an order of the general term, affirming an order made at special term, setting aside a judgment by confession for insufficiency of the statement, is a final order from which an appeal to this court lies.

In Griffin agt. Marquardt, 17 N. Y. R., 34, March, 1858, it was decided, COMSTOCK, J., that the supreme court is bound to grant a new trial on reversing a judgment upon appeal on a case, unless the case be within the exception stated in Edmonston agt. McLoud (16 N. Y. R. 513). Where the supreme court omit to grant such new trial, this court can reciew the error.

In Edson agt. Dillaye, 17 N. Y. R., 160, March, 1858, it was decided, STRONG, J., that an order of the general term, reversing an order of a special term, denying a motion to vacate a judgment of that court in the action, and setting aside the judgment, is an order deciding the merits of the action, and preventing a judgment in that action, and is appealable to this court.

In The Matter of the Hollister Bank, 23 N. Y. R., 509, September, 1861, it was decided. SELDEN, J., that an appeal lies to this court from a judgment of reversal or affirmance of the supreme court, reversing or affirming an order of the special term confirming an apportionment of the debts of an insolvent corporation among the stockholders, pursuant to the act of 1849.

In Bates agt. Voorhees, 20 N. Y. R., 526, December, 1859, it was decided, CoмSTOCK, J., that an order of the supreme court, dismissing an appeal from a judgment at special term, on the ground that it (appeal) was too late, determines the action and prevents a judgment from which an appeal could be taken, and such an order is appealable to this

court.

In Talbot agt. Talbot, 23 N. Y. R., 19, March, 1861, it was decided, SELDEN, J., that an order of the general term, reversing an order or decree of a surrogate admitting a will to probate, for error in law, and reinitting the proceedings back to the surrogate, is a final determination of the proceeding in the supreme court, and is appealable to this

court.

In Davis agt. The Mayor, &c., of New York, 4 Kern., 507, December, 1856, it was decided, DENIO, J., that an order making the attorney general a party plaintiff in an action brought by a tax payer of the city of New York to prevent the construction of a railway in said city, is one which involves the merits of the action, and is appealable to this

court.

In Kirby agt. Fitzpatrick, 18 N. Y. R., 485, March, 1859, it was decided, JOHNSON, J., that, where a fund is brought into court by the holder, who is sued by two parties, and he is discharged from litigation, under section 122 of the Code, and a reference is ordered to ascertain the facts, and on the coming in of the report the fund is awarded, the order is to be regarded as having the effect of a special verdict, and must be considered as a final judgment of the supreme court, and is appealable to this court.

In Marshal agt. Smith, 20 N. Y. R., 252, September, 1859, JOHNSON, J., it was decided, that a reference to ascertain the amount and liens upon surplus moneys is a reference to report facts, and the report has the effect of a special verdict, and the question arising on the facts thus found may be reviewed on appeal, without exceptions.

In Hartung agt. The People, 26 N. Y. R., 154, Der er, 1862, a court of over and terminer gave judgment for the prisoner on demurrer to special pleas, establishing a

good defense. The plea of not guilty remained on the record undetermined. The supreme court reversed the judgment on the demurrer, and ordered a new trial. It was decided, SELDEN, J., that the judgment of the oyer and terminer was final, and appealable to the supreme court; that the judgment of the supreme court, though directing a new trial, was final so far as that court was concerned, and therefore appealable to this court. The record having been remitted to the court of oyer and terminer, this court has power to reach it for the purpose of reviewing the judgment of the supreme court. But whether the writ of error should be addressed to the inferior court, the supreme court, or both; quere?

In Betts agt. Garr, 26 N. Y. R., 385, March, 1863, it was decided, ROSEKRANS, J., that the denial of a motion for leave to issue execution upon a judgment, where it was opposed upon the ground that the judgment debtor alleged and swore that he was the owner, by assignment, of judgments to a greater amount against the moving party, held to affect a substantial right, and therefore appealable.

In Lahens agt. Fielden, 15 Abb., 177, Court of Appeals, October, 1862, SELDEN, J., it was decided, that where the court can see that the case states facts which make it probable that an appealable judgment has been rendered, and that a right of appeal exists, it will allow clerical errors in the case to be amended on terms. That an appeal lies from a judgment of the general term rendered upon argument, affirming a final judgment of any kind, if the latter is an actual determination of a court of record, and not rendered by default. As in case of a judgment granted against a plaintiff in consequence of his failure to comply with the terms of an order at special term. That although an order directing the names of certain parties plaintiff to be stricken out, might be considered a mere question of practice and not reviewable on appeal in this court, yet where it requires the remaining plaintiff to join such parties as parties defendants, and prescribes what allegations should be asserted in the amended complaint, it presents questions which may be reviewed by an appeal to this court. And this is so, although the order states that the complaint is dismissed for want of prosecution, if the papers show that the want of prosecution consisted simply in the appellants refusal to make his original coplaintiffs, defendants.

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

A. In Lake agt. Gibson, 3 How., 427, 2 Comst., 188, March, 1849, it was decided by the COURT, that an appeal will not lie in a cause where no case or bill of exceptions have been made, and no application at general term for a new trial, or to vacate the verdict; but solely an appeal under the Code from a judgment after a verdict, without any excep tions or other proceedings intermediate the verdict and judgment record. An appeal does not lie to bring up the record merely.

In Swarthout agt. Curtis, 5 How., 198, 4 Comst., 416, January, 1851, BRONSON, J., it was decided, that an appeal will not lie upon a judgment or decree where there is a reference in the cause which will bring the case again before the court; as where there has been a reference to compute and report the amount due upon a mortgage; also where the questions of costs is reserved until the coming in of the report of the referee; and also where the order confirming the report has been taken by default at a special term. In Dors agt. Congdon, 28 N. Y. R., 122, September, 1863, WRIGHT, J., it was decided, that an order of the supreme court, setting aside a sale of mortgaged premises, and directing a reference, to ascertain when two of the defendants in the foreclosure suit entered on the premises, and under what agreements, or title, respectively; also the value of the premises occupied by those defendants respectively at the time they took possession of the same; and what the relative value of such parties respectively, independent of the improvements made by such defendants, is, with reference to the value of the rest, and of the whole of the mortgaged premises; and the cost or value of such improvements respectively was; and reserving to either party, on filing the report of the referee, the right to move for its confirmation, and for an order determining the payments to be made by the two defendants named, respectively, is not appealable to this court.

In Grover agt. Coon, 1 Comst., 536, November, 1848, BRONSON, J., it was decided, that an appeal will not lie in a suit pending when the Code took effect, and judgment rendered subsequently, in an action originally commenced in a court of a justice of the peace.

In Gridley agt. Daggett, 6 How., 280, Court of Appeals, January, 1852, it was decided by the COURT, that an appeal will not lie from a pro forma judgment of the general term, the case having been by stipulation of the respective attorneys submitted to the general term for the purpose of taking an appeal from their decision to this court.

In Sherman agt. Felt, 3 How., 425, 2 Comst., 186, Court of Appeals, March, 1849, it was decided by the COURT, that an appeal will not lie, from the decision of a motion setting aside a jugdment or decree, either for irregularity or as a matter of favor, it is a question of discretion and practice, and not subject to review.

In Sherman agt. Daggett, 3 How., 426, Court of Appeals, March, 1849, it was decided by the COURT, that with few exceptions, the granting or withholding of costs in equity cases, rests in the discretion of the court of original jurisdiction; and an appeal will not lie upon the mere question of costs.

In People agt. N. Y. Central R. R. Co., 29 N. Y. R., 418, March, 1861, DENIO, Ch.