the original undertaking. (1) 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.(2) In effect Jan. 1, 1896; L. 1895, ch. 946. Co. Proc., part of } 335, am'd. (1) Elseman v. Swan, 11 Abb. 112; Wulett v. Stringer, 15 How. 310. (2) Geater v. Fields, 1 Keyes, 483. § 1309. [Amended, 1894.] Action upon undertaking; when not to be brought. 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, and upon the sureties on such undertaking, of a written notice of the entry of a judgment or order, affirming the judgment or order appealed from, or dismissing the appeal. Such service may be made by mailing such notice in a postpaid wrapper addressed to said surety or sureties, at the last known postoffice address of such surety or sureties. Where an appeal to the court of appeals, from that judgment or order, is perfected, and security is given thereupon, to stay the execution of the judgment or order appealed from, an action shall not be maintained upon the undertaking, given upon the preceding appeal, until after the final determination of the appeal to the court of ap peals. In effect, as amended, September 1, 1894; Laws 1894, ch. 108. § 1310. [Amended, 1895.] When appeal stays proceedings; effect thereof.-Where an appeal to the general term of any court or to the appellate division of the supreme court or to the court of appeals or otherwise has been heretofore or shall hereafter be perfected, as prescribed in this chapter, and the other acts, if any, required to be done, to stay the execution of the judgment or order appealed 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 affected by the judgment or order appealed from or not embraced within the appeal; or may cause perishable property to be sold, pursuant to the judgment or order appealed from. 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 chapter, 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 proceed ings, pending or otherwise, to recover the possession of real property or dispossess tenants therefrom, based on the failure to pay the rent included in the judgment appealed from. In effect Jan. 1, 1896; L. 1895, ch. 946. § 1311. [Amended, 1895.] Levy upon personal property, when superseded by appeal.—Where an appeal, taken, from a final judgment, to the court of appeals, has been perfected, and the security, required to stay the execution of the judgment, has been given; or where the security, given upon an appeal, taken from a final judgment of the supreme court, a county court, or the city court of the city of New-York, is equal to that required to perfect an appeal to the court of appeals, and to stay the execution of the judgment; the court, in which the judgment appealed from was rendered, may, in its discretion, and upon such terms as justice requires, make an 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. In effect Jan. 1, 1896; L. 1895, ch. 946. - § 1312. Court may limit amount of security in certain cases. Where an appeal is taken, as prescribed in title 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: 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 dis cretion 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 other wise exceed that sum. Substitute for part of Co. Proc. 339, Mills . Forbes, 11 How. 1313. No security necessary, on appeal by the people, etc.-Upon an appeal, taken by the people 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. Substance of L. 1858, ch. 27, § 2, as amended by L. 1861, ch. 288 (4 Edm. 110) § 1314. [Amended, 1877.] Id. jon appeal by a domestic municipal corporation. 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, with out 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. L. 1859, ch. 262, § 1 (4 Edm. 682). See ? 1990. ter, 1315. Papers to be transmitted to appellate court Where an appeal is taken from a final judgment, as prescribed in title second or third of this chapthe appellant must, within twenty days after it is perfected, cause a copy (1) of the judgment-roll, and of a case or 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 en titled 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, except where it is otherwise specially prescribed by law, the appeal must be heard upon them. Co. Proc., 328, am'd. (1)Lansing v. Russell, 4 How. 213; Matter of Southworth, 5 Hun, 55. § 1316. Interlocutory judgment, or intermediate order, may be reviewed. An appeal, taken from & final judgment, brings up for review, an interlocutory judgment, or an intermediate order, which is specified in the notice of appeal, and necessarily affects the final judgment; and which has not already been reviewed, upon a separate appeal therefrom, by the court or the term of the court, to which the appeal from the final judgment is taken. The right to review an interlocu tory judgment, or an intermediate order, as prescribed in this section, is not affected by the expiration of the time, within which a separate appeal therefrom might have been taken. Predicated on Co. Proc., 329. § 1317. [Amended, 1895.] Judgment or order on appeal.-Upon an appeal from a judgment or an order, the appellate division of the supreme court, or general term, to which the appeal is taken, may reverse or affirm, wholly or partly, or may modify, (1) the judgment or order appealed from, and each interlocu tory judgment or intermediate order, which it is authorized to review, as specified in the notice of appeal, and as to any or all of the parties.(2) and it may, if necessary or proper, grant a new trial or hearing. (3) A judgment, affirming wholly or partly a judgment, from which an appeal has been taken, shall not, expressly and in terms, award to the respondent, a sum of money, or other relief, which was awarded to him by the judgment so affirmed. (4) In effect Jan. 1, 1896; L. 1895, ch. 946. Bee Co. Proc., 330. (1) Zung v. Howland, 5 Daly, 136; Hayden v. Florence S. M. Co., & N. Y. 221; Cnif v. Dorland, 57 id. 560; Wolster holme v. W. F. M. Co., 64 id. 272: Murphy v. Spaulding, 46 id. 5561 and see Whitehead v. Kennedy, 15 Alb. L. J. 470; Bennett v. Lake, 47 N. Y. 93. (2) Hubbell r. Melgs, 50 N. Y. 480; Van Slyck v. Sneil, 6 Lans. 199; Hubbell v. Alden, id. 214; Kelseye. Western, 2 N. Y. 500; Dutch Ber'd On. of Canajoharie v. Wood, 8 Barb. 421; Bedell v. Com. Mutual ins. Co., 3 Bosw. 148; Chouteau v. Suydam, 21 N. Y. 185; Boyd . Foot, Bosw. 11; Grin v. Marquardt, 17 N. Y. 28; Edmonston . McLoud 16 id. 543; Girard v. Beach, 4 E. D. Smith, 27; 10 How. 369. (3) Halsey Flint, 15 Abb. 368. (4) Eno v. Crooke, 6 How. 460; De Agreda v. Mantel, 1 Abb. 130; Halsey v. Flint, 15 1d. 368; Beers v. Hendrickson, s Rob. 53; s. c.. 45 N. Y. 665; Beardsley Scythe Co. v. Foster, 36 ia. 661. | $1318. When no appeal lies from judgment of revergal. Where a judgment, from which an appeal is taken, is reversed upon the appeal, and a new trial is granted, an appeal cannot be taken from the judgment of reversal; but upon an appeal from the order granting a new trial, taken, as prescribed by law, the judg ment of reversal must also be reviewed. New. See Caughey v. Smith, 47 N. Y. 244; Mehl v. Vonderwalbeke, 46 id. 539. § 1319. Mode of enforcing affirmed or modified judgment. Where a judgment, from which an appeal has been taken, from one court to another, is wholly or partly affirmed, or is modified, upon the appeal, it must be enforced, by the court in which it was rendered, to the extent permitted by the determination of the appellate court, as if the appeal there from had not been taken. New. See the note to 3 1322, post. § 1320. Id.; as to order. Where a final order, from which an appeal has been taken, from one court to another, as prescribed in title fifth of this chapter, is wholly or partly affirmed, or is modified, upon the appeal, the appellate court may enforce its order, or may direct the proceedings to be remitted, for that purpose, to the court below, or to the judge who made the order appealed from. how. See the note to 1322, post. § 1321.* Mode of cancelling docket of reversed or modified judgment. - Where a final judgment for a sum of money, or directing the payment of a sum of money, has been reversed, or has been affirmed as to part only of the sum, upon an appeal, taken as prescribed in title third or fourth of this chapter; and an appeal to the court of appeals is not taken and perfected, and the security required to stay execution is not given, within ten days after the entry of the judgment upon the appeal, in the clerk's office where the judgment appealed from is entered, the clerk must make a minute of the reversal of the judgment, or of the amount to which it has been reduced, upon his docket-book, in each place, where the judg ment is docketed. A transcript of the docket, as thus corrected, must be furnished by him, and may be filed in any county clerk's office, where the original judgment is docketed, as prescribed by law, with respect to the original docket; and thereupon the |