110 N.Y. 502. 128 N.Y. 426. 27 Hun, 18. 100 N. Y. 243. CHAPTER XII. APPEALS. TITLE I.-GENERAL PROVISIONS, RELATING TO THE APPEALS TITLE II.-APPEAL TO THE COURT OF APPEALS. TITLE III.-APPEAL TO THE SUPREME COURT FROM AN INFE RIOR COURT. TITLE IV.-APPEAL TO THE GENERAL TERM OF THE SUPREME TITLE V.-APPEAL FROM A FINAL DETERMINATION IN A SPEC TITLE I. General provisions, relating to the appeals provided for in this chapter. $1293. The writ of error in a civil action or special proceeding has been abolished. § 1294. A party aggrieved may appeal, in a case prescribed in this chapter, except where the judgment or order. of which he complains, was rendered or made upon his default. § 1295. The party or person appealing is designated as the appellant, and the adverse party as the respondent. After an appeal is taken to another court, the name of the appellate court must be substituted, for that of the court below, in the title of the action or special proceeding, and in any case, the name of the county, if it is mentioned, may be omitted; other wise the title shall not be changed, in consequence of the appeal. $1296. A person aggrieved, who is not a party, but is entitled by law to be substituted, in place of a party; or who has acquired, since the making of the order, or the rendering of the judgment appealed from, an interest, which would have entitled him to be so substituted, if it had been previously acquired, may also appeal, as prescribed in this chapter, for an appeal by a party. But the appeal cannot be heard until he has been substituted in place of the party; and if he unreasonably neglects to procure an order of substitution, the appeal may be dismissed, upon motion of the respondent. $1297. Where the adverse party has died, since the making of the order, or the rendering of the judgment appealed from, or where the judgment appealed from was rendered, after his death, in a case prescribed by law, an appeal may be taken, as if he was living; but it cannot be heard, until the heir, devisee, executor, or administrator, as the case requires, has been substituted as the respondent. In such a case, an undertaking required to perfect the appeal, or to stay the execution of the judgment or order appealed from, must recite the fact of the adverse party's death; and the undertaking enures, after substitution, to the benefit of the person substituted. $1298. [Am'd 1877.] Where either party to an appeal. Waak. dies, before the appeal is heard, or has heretofore died, and by 267 the appeal has not been heard, if an order, substituting another 1198.7.117. person in his place, is not made, within three months after his death, or, where he has heretofore died, within three months after this section takes effect, the court, in which the appeal is pending, may, in its discretion, make an order, requiring all persons interested in the decedent's estate, to show cause before it, why the judgment or order appealed from should not be reversed or affirmed, or the appeal dismissed, as the case requires. The order must specify a day, when cause is to be shown, which must be not less than six months after making the order; and it must designate the mode of giving notice to the persons interested. Upon the return day of the order, or at a subsequent day, appointed by the court, if the proper person has not been substituted, the court, upon proof, by affidavit, that notice has been given, as required by the order, may reverse or affirm the judgment or order appealed from or dismiss the appeal, or make such further order in the premises, as justice requires. 1299. Where the appeal is from one court to another, an application for an order of substitution, as prescribed by the last three sections, must be made to the appellate court. Where personal service of notice of application for an order has been made, within the State, upon the proper represen tatives of the decedent, an order of substitution may be made, upon the application of the surviving party. § 1300. An appeal must be taken, by serving, upon the 76 N. Y. 106 attorney for the adverse party, as prescribed in article third 9 Daly, 482. of title sixth of chapter eighth of this act, and upon the clerk, with whom the judgment or order appealed from is entered, by filing it in his office, a written notice, to the effect, that the appellant appeals from the judgment or order. or from a specified part thereof. § 1301. Where the appeal is from a final judgment or from a final order in a special proceeding, and the appellant intends to bring up, for review thereupon, an interlocutory judgment, or an intermediate order, he must, in the notice of appeal, distinctly specify the interlocutory judgment, or intermediate order, to be reviewed. § 1302. If the attorney for the adverse party is dead; or if he has been removed, and notice of the removal has been served upon the appellant's attorney, and another attorney has not been substituted in his place; or if, for any reason, service of a notice of appeal, upon the proper attorney for the adverse party, cannot, with due diligence, be made within the State, the notice of appeal may be served upon the respondent, in the manner prescribed by law for serving it upon an attorney. If personal service upon the respondent cannot, with due diligence, be so made within the State, the notice of appeal may be served upon him, and notice of the subsequent proceedings may be given to him, as directed by a judge of the court, in or to which the appeal is taken. § 1303. Where the appellant, seasonably and in good faith, serves the notice of appeal, either upon the clerk or upon the adverse party, or his attorney, but omits, through mistake, inadvertance, or excusable neglect, to serve it upon the other, or to do any other act, necessary to perfect the appeal, or to stay the execution of the judgment or order appealed from; the court, in or to which the appeal is taken, upon proof, by affidavit, of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires. § 1304. An appeal cannot be taken from an order made by a judge, out of court, until it is entered in the office of the proper clerk. Where such an order has not been so entered, or the papers, upon which it was founded, have not been filed in the same clerk's office, the judge who made, or, if he is absent, or unable or disqualified to act, a judge of the court, in or to which an appeal therefrom may be taken, must, upon the application of a party or other person, entitled to take such an appeal, make an order, requiring the omission to be supplied, within a specified time after service of a copy of the order made by him. Upon proof, by affidavit, that a copy of the latter order has been served, and that the omission has not been supplied, the same judge may make, upon notice, an order revoking and annulling the original order. The provisions of the last section but one apply to the service of an order, or a notice, as prescribed in this section. § 1305. An undertaking, which the appellant is required, by this chapter, to give, or any other act which he is so required to do, for the security of the respondent, may be waived by the written consent of the respondent. 1306. Where the appellant is required, by this chapter, to give an undertaking, he may, in lieu thereof, deposit with the clerk, with whom the judgment or order appealed from is entered, a sum of money, equal to the amount, for which the undertaking is required to be given. The deposit has the same effect, as filing the undertaking; and notice that it has been made, has the same effect, as notice of the filing and ser vice of a copy of the undertaking. The court, wherein the appeal is pending, may direct the mode, in which the money shall be kept and disposed of, during the pendency, or after the determination of the appeal. $$ 1307-1311 APPEALS GENERALLY. 263 § 1307. An undertaking, given as prescribed in this chapter, must be filed with the clerk, with whom the judgment or order appealed from is entered." $1308. The court, in which the appeal is pending, upon 72 N. Y. 613; satisfactory proof, by affidavit, that since the execution of an 109 Id. 646. undertaking, given as prescribed in this chapter, one or more of the sureties therein have become insolvent; or that his or their circumstances have become so precarious, the* there is reason to apprehend, that the undertaking is not sufficient for the security of the respondent; may make an order, requiring the appellant to file a new undertaking, and to serve a copy thereof, as required with respect to the original undertaking. If the appellant fails so to do, within twenty days after the service of a copy of the order, or such further time as the court allows, the appeal must be dismissed, or the order or judgment, from which the appeal is taken, must be executed, as if the original undertaking had not been given. 101 N.Y.289. 379. Rep. 8. $1309. An action shall not be maintained, upon an undertaking, given upon an appeal, taken as prescribed in title third, fourth or fifth of this chapter, until ten days have expired, since the service, upon the attorney for the appellant, of a written notice of the entry of a judgment or order, affirm- 23 Abb. N. ing the judgment or order appealed from, or dismissing the (.428. appeal. Where an appeal to the court of appeals, from that 17 Civ. Pro. judgment or order, is perfected, and security is given there- 86. upon, to stay the execution of the judgment or order appealed from, an action shall not be maintained upon the undertaking, giving upon the preceding appeal, until after the final determination of the appeal to the court of appeals. § 1310. [Am'd 1893.] Where an appeal to the general 4 Civ. Pro, term of any court or to the court of appeals or otherwise has 284. been heretofore or shall hereafter be perfected, as prescribed 49 Hun, 163. in this chapter, and the other acts, if any, required to be done, to stay the execution of the judgment or ord r appea ed from, have been done, the appeal stays all proceedings to enforce the judgment or order appealed from; except that the court or judge. from whose determination the appeal is taken, may proceed in any matter included in the action or special proceeding, and not affe ted by the judgment or order appealed from or not embraced within the appeal; or may canse perishable property to be sold, pursuant to the judgment or order appeal d fro n. The proceeds of such a sale must be paid, to abide the result of the appeal into the court from or in which the appeal is taken; or, if it was taken as prescribed in title fifth of this chapt r, into the supreme court. When an appeal from a judgment for rent has been perfected and execution stayed as herein provided, the appeal stays all summary proceedings, pending or otherwise, to recover the possession of real property or disposess tenants therefrom, based on the failure to pay the rent included in the judgment appealed from. All acts and parts of acts inconsistent with or repugnant to the provisions of this act, are to that extent hereby repealed. § 1311. Where an appeal, taken, from a final judgment, 5 Week Dig. to the court of appeals, has been perfected, and the security, 463. required to stay the execution of the judgment, has been given; 13 Abb. N. or where the security, given upon an appeal, taken from a C. 481. * So in original. 6 Dem. 287. order, upon notice to the respondent, and the sureties in the undertaking, discharging a levy upon personal property, made by virtue of an execution, issued upon the judgment appealed from. But this section does not authorize the discharge of a levy, made by virtue of a warrant of attachment. § 1312. Where an appeal is taken, as prescribed in title 117 N.Y. 115. second or fourth of this chapter, the court, in or from which the appeal is taken; or, where an appeal is taken as prescribed in title third or fifth of this chapter, the court, to which the appeal is taken; may, in its discretion, make an order, upon notice to the respondent, dispensing with or limiting the security, required to stay the execution of the judgment or order appealed from, as follows: 4 Dem. 84. 104 N.Y. 394. 1. Where the appellant is an executor, administrator, trustee, or other person acting in another's right, the security may be dispensed with or limited, in the discretion of the court. 2. The aggregate sum, in which one or more undertakings are required to be given, may be limited to not less than fifty thousand dollars, where it would otherwise exceed that sum. § 1313. [Am'd 1889.] Upon an appeal taken by the peo ple of the State, or by a State officer, or board of State officers, or a board of supervisors of a county, the service of the notice of appeal perfects the appeal, and stays the execution of the judgment or order appealed from, without an undertaking or other security. § 1314. [Am'd 1877.] Upon an appeal, taken by a domestic municipal corporation, the service of the notice of appeal perfects the appeal, and stays the execution of the judgment or order appealed from without an undertaking, or other security; except that, where an appeal is taken, as prescribed in title second, third or fourth of this chapter, the court, in or from which the appeal is taken, may, in its discretion, require security to be given. In that case, the form, nature, and extent of the security, not exceeding that which is required in a like case, from a natural person, and the time and manner in which it must be given, must be prescribed by the order of the court; and the mayor, comptroller, or counsel to the corporation, may, execute, in behalf of the corporation, an undertaking, so required to be given. § 1315. [Am'd 1890.] Where an appeal is taken from a final judgment as prescribed in title second or third of this chapter, the appellant must, within twenty days after it is perfected, cause a copy of the judgment-roll and of the case and notice of exceptions, if any, filed after the entry of judgment and a certified copy of the judgment given thereon and of the notice of appeal to be transmitted to the appellate court by the clerk upon whom the notice of appeal was served. Where an appeal from an order, or a part of an order, is taken as prescribed in title second, third and fifth of this chapter, the appellant must, within the same time, cause a certified copy of the notice of appeal, of the order, and of the papers upon which the order was founded, to be transmitted to the appellate court by the same clerk. If the appellant fails so to do, the respondent may cause those papers to be so transmitted; and he is entitled to tax the expense thereof, as a disbursement, where he recovers costs. The clerk of the appellate court must file the papers so transmitted; and ex |