SEO. 1290. Within what time motion to be made.

1291. Exceptions in cases of disability.

1292. Restitution; when directed.

§ 1282. Motion to set aside judgment for irregu larity; when it may be heard. - A motion to set aside a final judgment, for irregularity, shall not be heard, after the expiration of one year since the filing of the judgment-roll; unless notice thereof is given for a day within the year, and either the hearing is adjourned, by one or more orders, until after the expiration of the year; or the term, for which it is thus noticed, is not held. In the latter event, the motion may be re-noticed for, and heard at, the next term at which it can be made, held not less than ten days after the day, when the first term was appointed to be held.

2 R. S. 359,2 (2 Edm. 371), remodelled. Cook v. Dickerson, 1 Duer, $79; Whitehead v. Pecare, 9 How. 35; Pettigrew v. Mayor of N. Y., 17 id. 496; Park v. Church, 5 d. 381; Dederick's Adm'rs v. Richley, 19 Wend. 108; Manufacturers and Mechanics' Bank v. Boyd, 3 Den. 257; Hallett v. Righters, 13 How. 43; Chappel v. Chappel, 12 N. Y. 215; Bonnell v. Henry, 13 How. 142; Harris v. Warren, I id. 139; Lucas v. Second Baptist Church, 4 id. 353.

§ 1283. Motion to set aside judgment for error in fact; when it may be made by party. - A motion to set aside a final judgment, rendered in a court of record, for error in fact, not arising upon the trial, may be made by the party against whom it is rendered; or, if an execution has not been issued thereon, and the judgment has not been wholly or partly satisfied or enforced, by the party in whose favor it is rendered.

2 R. S. 591, parts of 2 and 3 (2 Edm. 613), consolidated and am'd. Overseers of the Poor of Clayton v. Beedle, 1 Barb. 11; Jaqueth v. Jackson, 17 Wend. 434. See McMurray v. McMurray, 9 Abb. N. S. 315.

§ 1284. Id.; after a party's death. - A like motion may be made, after the death of a party entitled to make it, as prescribed in the last section, by the following persons:

1. Where the judgment awards a sum of money, or a chattel, or an interest in real property, which is de clared by law to be assets, the motion may be made by his executor or administrator.

2. Where the judgment awards real property, or the possession thereof, or where the title to or an estate or interest in real property is determined or affected thereby, the motion may be made by the heir of the dezedent, to whom the real property descended, or might

have descended, or by the person to whom he devised it.

3. Where the judgment is rendered against or in fa vor of two or more persons, the motion may be made, jointly, by the survivor, and the person who would have been entitled to make it, if the judgment had been ren dered in favor of or against the decedent only.

2R. S. 591, 2, subd. 2 and 3, and 6, consolidated. Overseers of the Poor of Clayton v. Beedle, 1 Barb. 11.

$1285. Id.; by a person not a party. - A motion may be made, either before or after the death of the defendant, by a person, who is not a party, to set aside for error in fact, not arising upon the trial, a judgment, rendered in an action against a tenant for life, or for years, awarding real property, or the possession of real property, in which the person making the motion has an estate, or interest, in reversion or remainder.

Id., 2, subd. 4, remodelled.

§ 1286. Id.; when several parties are entitled to move. - Where two or more persons are entitled to move to set aside a judgment, as prescribed in the last three sections, one or more of them may move sepa rately; but, in that case, notice of the motion must be given to those who do not join therein, in like manner as if they were adverse parties.

Substitute for 2 R. S. 592, 27-17. Fenner v. Bettner, 22 Wend. 621.

§ 1287. To whom notice of the motion must be given. Notice of a motion to set aside a final judg ment, for error in fact, not arising upon the trial, must be given to the adverse party, or, in case of his death, to each person who might have moved, as against the moving party, to set aside the judgment for the same cause, as prescribed in this title.(1) Where the motion is made by the party against whom the judgment is rendered, or by his heir, devisee, executor, or adminis trator, service of the notice, upon the attorney of record for the party, in whose favor the judgment is rendered, has the like effect, as if it was served upon the party.(2) (1) Id., the substance of 19, except the last clause of subd. 3 thereof (2) New.

-

§ 1288. Id.; when real property recovered by the judgment has been conveyed. Where the judgment awards real property, or the possession thereof, a

where the title to, or an estate or interest in, real prop erty is determined or affected thereby, and the real property, or estate or interest therein, has been conveyed, by the adverse party, more than eight days before the hearing of the motion, notice of the motion must also be given to each actual occupant of the property, claiming under the conveyance.

2 B 8. 592, remainder of § 19.

§ 1289. How notice given under this title. -- Notice must be given, in a case specified in this title, by personal service of a written notice, or of an order to show cause why the motion should not be granted; or, if a person entitled to notice cannot, with due diligence, be found within the State, in any manner which the court, or a judge thereof, directs in an order to show cause, or which the court directs in a subsequent order.

New.

§ 1290. Within what time motion to be made. — A motion to set aside a final judgment, for error in fact, not arising upon the trial, shall not be heard, except as specified in the next section, after the expiration of two years since the filing of the judgment-roll, unless notice thereof is given, for a day within the two years; and either the hearing is adjourned, by one or more orders, until after the expiration of the two years; or the term, for which it is thus noticed, is not held. In the latter event, the motion may be re-noticed for, and heard at, the next term at which it can be made, held not less than ten days after the day, when the first term was appointed to be held.

New. See McMurray v. McMurray, 9 Abb. N. 8. 315.

If the

1291. Exceptions in cases of disability. person, against whom the judgment is rendered, is, at the time of filing the judgment-roll, either

1. Within the age of twenty-one years; or

2. Insane; or

3. Imprisoned on a criminal charge, or in execution, apon conviction of a criminal offence, for a term lesa than for life;

The time of such a disability is not a part of the time, limited by the last section; except that the time, within which the motion may be heard, cannot be extended

more than five years by such a disability, nor, in any case, more than one year after the disability ceases. From 2 R. 8. 594, }} 22 and 24.

§ 1292. Restitution; when directed. Where a judg. ment is set aside for any cause, upon motion, the court may direct and enforce restitution, in like manner, with like effect, and subject to the same conditions, as where a judgment is reversed upon appeal.

New in form. See § 1323, post.

CHAPTER XII.

APPEALS.

TITLE I-GENERAL, PROVISIONS, RELATING TO THE APPEALS PROVIDED FOR IN THIS CHAP

TER.

TITLE II.-APPEAL TO THE COURT OF APPEALS. TITLE III.-APPEAL TO THE SUPREME COURT FROM AN INFERIOR COURT,

TITLE IV.-APPEAL TO THE APPELLATE DIVISION OF THE SUPREME COURT.

TITLE V.-APPEAL FROM A DETERMINATION IN A SPECIAL PROCEEDING.

TITLE I.

General provisions, relating to the appeals provided for in this chapter.

SEC. 1293. Writs of error abolished.

1294. When party may appeal.

1295. Parties to appeal; how designated. Title of cause.

1296. When a person entitled to become a party may appeal.

1297. Appeal when adverse party has died.

1298. Proceedings, when party dies pending appeal.

1299. Order of substitution.

1300. Appeal, how taken.

1301. When notice of appeal to specify interlocutory judgment, etc. 1302. Proceedings, if attorney or party not found.

1303. Defects in proceedings may be supplied.

1304. Order appealed from must be entered. Proceedings to com

pel entry.

1305. Security may be waived.

1306. Deposit in lieu of undertaking.

1307. Undertaking must be filed.

1308. New undertaking to be given, when sureties are insolvent,

etc.

1309. Action upon undertaking, when not to be brought.

1310. When appeal stays proceedings: effect thereof.

1311. Levy upon personal property, when superseded by appeal. 1312. Court may limit amount of security in certain cases.