reviewing judgments in justices' courts, and other inferior tribunals.

§ 301. All statutes, now in force, providing for the review of judgments in civil cases, rendered by courts of justices of the peace, by the marine court of the city of New-York, by the assistant justices' courts in the city of New-York, by the municipal court of the city of Brooklyn, and by the justices' courts of the cities of Albany, Troy and Hudson, and regulating the practice in relation to such review, are repealed; and hereafter, the only mode of reviewing such judgments shall be an appeal, as prescribed by this chapter.

§ 202. When the judgment shall have been rendered by the marine court of the city of New-York, or by an assistant justice's court in that city, the appeal shall be to the superior court of the city of New-York; and when rendered by any of the other courts enumerated in the last section, to the county court of the county where the judgment was rendered.

§ 303. The appellant shall, 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.

§ 304. A copy of the affidavit shall, within the same time, be served on the respondent, if he be a resident of the [P. & P.]

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city or county, or if he be not a resident, on the attorney or agent, if any, who appeared for him on the trial, or on the justice; with a notice, stating that the appellant appeals from the judgment, and that the appeal will be heard by the appellate court, at a time and place therein designated, either in or out of term; which copy and notice shall be served at least six days before the time for hearing the appeal.

§ 305. If the appellant desire a stay of exccution of the judgment, he shall present the affidavit to a judge of the appellate court; who may, thereupon, in his discretion, make an order that all proceedings on the judgment be stayed, upon security being given, as provided in the next section.

§ 306. The security shall be a written undertaking, executed by one or more sufficient sureties, approved by the judge making the order, 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.

§ 307. The delivery of the order and undertaking to the court below, shall stay the issuing of execution; or if it have been issued, the service of a copy of the order and undertaking, certified by the court below, upon the officer holding the execution, with payment of his fees, shall stay further proceedings thereon.

§ 308. Where, by reason of the death of a justice of the peace, or his removal from the county, or any other cause, the order to stay and the undertaking on the appeal cannot be delivered to him, they shall be filed with the clerk of the appellate court, and notice thereof given to the respondent. They shall, thereupon, have the same effect as if delivered to the justice.

309. When the affidavit and notice of appeal shall have been served, the respondent may supply or correct material omissions or mis-statemen's therein, by an affidavit on his part; a copy of which shall be served on the attorney, if any, who prosecutes the appeal, or if there be none, on the appellant, or on the attorney or agent, if any, who appeared for him on the tria!, at least one day before the time for hearing the appeal.

§310. The appellate court shall proceed to hear the appeal, at the time and place mentioned in the notice, or to which the hearing may be adjourned, 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.

§ 311. The court below shall, thereupon, within the time limited by the order, make a return to the appellate court, of the testimony, proceedings and judgment, and file the same, with the order and affidavits, in the appel

late court; and may be compelled to do so by attachment. But no justice of the peace shall be bound to make a return, unless the fee prescribed by the last section of this chapter, be paid on service of the order.

§ 312. When a justice of the peace, by whom a judgment appealed from was rendered, shall have gone out of office, before a return is ordered, he shall, nevertheless, make a return, in the same manner, and with the like effect, as if he were still in office.

§ 313. 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, by attachment.

§ 314. If a justice of the peace, whose judgment is appealed from, shall die, become insane, or remove from the state, the appellate court may examine witnesses, on oath, to the facts and circumstances of the trial or judgment, and determine the appeal, as if the facts had been returned by the justice. If he shall have removed to another county within the state, the appellate court may compel him to make the return, as if he were still within the county where the judgment was rendered.

§ 315. 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 shall be placed upon the calendar, and con

tinue 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 shall dismiss the appeal, unless it continue the same, by special order, for cause shown.

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

§ 317. Upon the hearing of the appeal, either upon affidavits, or upon the return, the appellate court shall give judgment according to the justice of the case, without regard to technical errors or defects, which do not affect the merits. In giving judgment, the court may either order a new trial, or may affirm or reverse the judgment of the court below, in whole or in part.

§ 318. To every judgment upon an appeal, there shall be annexed the affidavits or return on which it was heard, which shall be filed with the clerk of the court, and shall constitute the judgment roll.

$319. If a new trial be ordered, a concise statement of the reasons for such order shall be filed with the clerk. The court below shall thereupon proceed to try the action, upon the issue originally joined therein, or upon amended pleadings, in its discretion; and for that purpose, on the application of either party, may issue a summons directed to the other, to appear for such new trial, at a time and