may be reviewed, as prescribed by this chapter, and

not otherwise,

Amended Code, § 351.

§ 1192. When the judgment has been rendered by the marine court of the city of New-York, or by a justice's court in that city, the appeal must be to the court of common pleas of the city of New-York; and when rendered by any of the other courts mentioned in the last section, to the county court of the county where the judgment was rendered.

Amended Code, § 352.

§ 1193. The appellant must, within twenty days after the judgment, make, or cause to be made, an affidavit, stating the substance of the testimony and proceedings before the court below, and the grounds upon which the appeal is founded.

Amended Code, § 353.

§ 1194. A copy of the affidavit must, within the same time, be served on the respondent, if he be a resident of the city or county, or can be found therein, personally, or by leaving it at his residence with some person of suitable age and discretion, or if he be not a resident, on the attorney or agent, if any, who appeared for him on the trial, and is a resident of such city or county, with a notice, stating that the appellant appeals from the judginent, and that the appeal will be heard by

the appellate court, at a time and place therein designated, not less than six nor more than twenty days thereafter; which time may be in or out of term. be in or ou

When the notice cannot be

may be made on the justice.

Amended Code, § 354.

thus served, the service

§1195. If the appellant desire a stay of execution of the judgment, he must give security as provided in the next section...t to

Amended Code, § 355.

§ 1196. The security must be a written undertaking, executed by one or more sufficient sureties, approved by the county judge, or by the court below, to the effect, that if judgment be rendered against the appellant, and execution thereon be returned unsatisfied, in whole or in part, the sureties will pay the amount unsatisfied.

Amended Code, § 356.

§ 1197. The delivery of the undertaking to the court below stays the issuing of execution; or if it have been issued, the service of a copy of the undertaking, certified by the court below, upon the officer holding the execution, stays further proceedings thereon.

Amended Code, § 357.

$1198. Where, by reason of the death of a justice, or his removal from the county, or any other cause, the undertaking on the appeal cannot be delivered to him,

it must be filed with the clerk of the appellate court, and notice thereof given to the respondent, or his attorney or agent, as provided in section 1194, and it shall, thereupon, have the same effect as if delivered to the justice.

Amended Code, § 358,

§1199. When the affidavit and notice of appeal have been served, the respondent may supply or correct material omissions or mis-statements therein by an affidavit on his part, a copy of which must be served on the attorney, if any, who prosecutes the appeal, or if there be none, on the appellant, if to be found in the county, at least one day before the time for hearing the appeal.

Amended Code, § 359.

§ 1200. The appellate court must proceed to hear the appeal, at the time and place mentioned in the notice, or at such other time as the court may appoint, and may decide the same upon the affidavits; or if they be contradictory or defective in material points, may order the court below to make a return of the testimony and proceedings before it, within ten days after the service of the order and affidavits, or of copies thereof.

Original Code, § 310.

§ 1201. The court below must thereupon, within the ten days, make a return to the appellate court of the testimony, proceedings and judgment, and file the same, with the order and affidavits, in the appellate court, and

may be compelled to do so by the appellate court. But a justice is not bound to make a return, unless the fee prescribed by the last section of this chapter be paid on service of the order.

Original Code, 311. Amended Code, § 360.

§ 1202. If the return be defective, the appellate court may direct a further or amended return, as often as may be necessary, and may compel a compliance with its order.

Amended Code, § 362.

§ 1203. When a justice of the peace, by whom a judgment appealed from was rendered, shall have gone out of office, or removed to another county, before a return is made, he must, nevertheless, make a return, in the same manner, and with the same effect, as if he were still in office, and may in the same manner be compelled to do so.

Amended Code, § 361.

§ 1204. If a justice of the peace, whose judgment is appealed from, die, become insane, or remove from the state, the appellate court may examine witnesses on oath, respecting the facts of the trial or judgment, and determine the appeal, as if the facts had been returned by the justice.

Amended Code, & 363.

§ 1205. If a return be made, the appeal may be brought to a hearing at a general term of the appellate court, upon a notice by either party, of not less than eight days. It must be placed upon the calendar and continue thereon without further notice, until finally disposed of; but if neither party bring it to a hearing before the end of the second term, the court must dismiss the appeal, unless it continue the same, by special order, for cause shown.

Amended Code, § 364.

§ 1206. The appeal whether heard on the affidavits or return, must be heard on the original papers; and no copy thereof need be furnished for the use of the

court.

Original Code, § 316. Amended Code, § 365.

§ 1207. Upon the hearing of the appeal, the appellate court must give judgment upon the law and the facts, according to the justice of the case, without regard to technical errors or defects, which do not affect the merits. In case of a reversal, the court may allow another action for the same cause.

Amended Code, § 366, modified at the end.

§ 1208. To every judgment upon an appeal there must be annexed the affidavits or return on which it