TITLE V. Appeal from a determination in a special proceeding. SEC. 1356, Appeal from order made in the same court, 1357. Id.; when made by another court or judge. 1358. Preceding order may be reviewed. 1359. Limitation of time to appeal. 1360. Stay of proceedings; hearing of appeal; decision thereupon. 1361. This title qualified. Application of provisions relating to actions. § 1356. [Amended, 1895.] Appeal from order made in the same court.- An appeal may be taken, to the appellate division of the supreme court, from an order, affecting a substantial right, made in a special proceeding, at a special term or a trial term of the supreme court; or made by a justice thereof, in a special proceeding instituted before him, pursuant to a special statutory provision; or instituted before another judge, and transferred to, or continued before him. In effect Jan. 1, 1896; L. 1895, ch. 916. L. 1854, ch. 270, § 1, first clause (4 Edm. 681; 5 id. 133). People v. Schoonmaker, 19 Barb. 657; Rochester, etc., R. R. Co. v. Beckwith, 10 How. 168; Albany & S. R. R. Co. v. Dayton, 10 Abb. N. S. 182; Matter of Canal and Walker Streets, 12 N. Y. 406; King v. Mayor, etc., of N. Y., 36 id. 182; Bowery Extension Case, 2 Abb. 368; 12 How. 97; Matter of Seventy-sixth St., 12 Abb. 317; Matter of Sixty-fifth St., 23 How. 256; Pryor's Appeal, 5 Abb. 272; Pinckney's Case, 18 id. 356; atter of Thayer, 30 How. 276; Boyd v. Bigelow, 14 id. 511; Matter of Dodd, 27 N. Y. 629; Williams v. Estate of Cameron, 26 Barb. 176, § 1357. [Amended, 1895.] Id.; when made by another court or judge.-- An appeal may also be taken to the appellate division of the supreme court, from an order, affecting a substantial right, made by a court of record, possessing original jurisdiction, or a judge thereof, in a special proceeding instituted in that court, or before a judge thereof, pursuant to a special statutory provision; or instituted before another judge, and transferred to, or continued before, the judge who made the final order. But this section does not apply to a case, where an appeal from the order, to a court, other than the appellate division of the supreme court, is expressly given by statute. In effect Jan. 1, 1996; L. 1895, ch. 946. Substituted for part of Co. Proc., § 344. See § 1342, ante. See Matter of Anderson, 60 N. Y. 457; Carpenter v. Green, 4 Hun, 416. § 1358. [Amended, 1877.] Preceding order may be reviewed. An appeal, authorized by this title, brings up for review, any preceding order, made in the course of the special proceeding, involving the merits, and necessarily affecting the final order appealed from, which is specified in the notice of appeal. See Co. Proc., 329. Brownell v. Winnie, 29 N. Y. 400; People v. Sup. of Richmond, 28 d. 112; Beach v. Cooke, id. 509; James v. Chalmers, 6 1d. 209; Grace v. Freeland, 1 id. 228; Cowles v. Cowles, 9 How. 361; Kanouse v. Martin, 6 id. 240; Coyle v. City of Brooklyn, 53 Barb. 62. See L. 1854, ch. 270, 2. $1359. Limitation of time to appeal.. - An appeal, authorized by this title, must be taken within thirty days after service of a copy of the final order, from which it is taken, with a written notice of the entry thereof, upon the appellant; or, if he appeared, upon the hearing, by an attorney at law or an attorney in fact, upon the person who so appeared for him. From Id., 332. See L. 1854, ch. 270, 2. Beach v. Gregory, 2 Abb. 209; Hoffenberth v. Muller, 12 Abb. N. S. 221. $1360. Stay of proceedings; hearing of appeal decision thereupon. The provisions of title fourth of this chapter, relating to perfecting an appeal from an order, taken as therein prescribed; to staying the execu tion of the order appealed from; to hearing the appeal; and to the entry and enforcement of the order made upon the appeal, apply, where an appeal is taken, as prescribed in this title, except as otherwise specially prescribed by law. This section refers to 1351, 1353, 1354, and 1355, ante. See, also, H 1313 and 1314, ante § 1361. This title qualified. Application of provisions relating to actions. This title does not confer the right to appeal from an order, in a case, where it is specially prescribed by law, that the order cannot be reviewed. The proceedings upon an appeal, taken as prescribed in this title, are governed by the provisions of this act, and of the general rules of practice, relating to an appeal in an action, except as otherwise specially prescribed by law. New.. TITLE CHAPTER XIIL EXECUTIONS. L-FORMS OF EXECUTION; TIME AND MAN OF NER OF ISSUING AN EXECUTION; GEN- TITLE II - EXECUTION AGAINST PROPERTY. TITLE III. EXECUTION AGAINST THE PERSON. TITLE I. Forms of execution; time and manner of issuing an execution; general duties and liabilities of officers. Ino. 1362. To whom execution directed; provision where sheriff is a party. 1363. Time of receipt to be indorsed on execution. 1364. The different kinds of execution. 1365. To what counties executions may issue. 1366. General requisites of executions. 1367. Id.; when issued on filing transcript from justice's court, etc. 1368. Requisites of execution for the collection of money. 1369. Id.; against property. 1370. Id. where a warrant of attachment has been levied by sheriff. 1371. Id.; against executor, etc. 1372. Id.; against the person. 1373. Id.; for delivery of property. How money, recovered by same judgment, may be collected. 1374. Separate executions, where separate sums awarded. 1375. Execution of course, within five years. 1376. Execution, after death of judgment creditor. 1377. When execution may be issued after five years. 1378. Id.; leave, how obtained. 1379. No execution against decedent, except, etc. 1380. Leave required to issue execution against decedent's property 1382. Time of stay by order, etc., not reckoned under this title. 1362. To whom execution directed; provision where sheriff is a party. An execution must be directed to the sheriff, unless he is a party or interested; in which case it must be directed as prescribed in section 173 of this act. But the court may, in its discretion, order an execution, issued upon a judgment rendered against a sheriff, either alone or with another, to be directed to a person, designated in the order, instead of to the coroners, or a particular coroner; in which case It must be so directed. The person so designated must be of full age, a resident of the State, and not a party to the action, or interested therein. Where the execution is issued upon a judgment for a sum of money, or directing the payment of a sum of money, the order does not take effect, until the person so designated executes, and files in the clerk's office, a bond to the people, with at least two sureties, approved by a judge of the court, or a county judge, in a penal sum, fixed by the order, not less than twice the sum to be collected by virtue of the execution; conditioned for the faithful performance of his duties under the execution. A certified copy of the order, and, where it requires a bond to be given, the clerk's certificate that a bond has been filed, as required by the order, must be attached to the execution. The person so designated is deemed an officer; and, with respect to that execution, he is subject to the obligations and liabilities, and has the power and authority of a coroner, and is entitled to fees accordingly. Co. Proc., part of 289, and 2 R. S. 364, 11 and 12, am'd, Hathaway v. Howell, 54 N. Y. 97; White v. Coulter, 3 T. & C. 608; s. c., 1 Hun, 357 § 1363. Time of receipt to be indorsed on execution. The sheriff, to whom an execution is directed and delivered, must, upon the receipt thereof, indorse thereupon a memorandum of the day, hour, and min ute, when he received it. 2 R. S. 364, 10 (2 Edm. 377). § 1364. The different kinds of execution. are four kinds of execution, as follows: 1. Against property. 2. Against the person. There 8. For the delivery of the possession of real property with or without damages for withholding the same. 4. For the delivery of the possession of a chattel, with or without damages for the taking or detention thereof. An execution is the process of the court, from which it is issued. Co. Proc., 286, am'd. § 1365. To what counties executions may issue.-An execution against property can be issued only to a county, in the clerk's office of which the judgment is docketed.(1) An execution against the person may be issued to any county. An execution for the delivery of the possession of real property, must be issued to the county, where the property, or a part thereof, is situated. An execution for the delivery of the possession of a chattel, may be issued to any county, where the chattel is found; or to the sheriff of the county where the judgment-roll is filed. Executions, upon the same judgment, may be issued at the same time, to two or more different counties. See § 597. Substitute for Co. Proc., part of 287. (1) Stephens v. Browning, 1 Code Rep. 123; Roth v. Schloss, 6 Barb. 308; Brush v. Lee, 36 N. Y. 49. An ex § 1366. General requisites of executions. ecution must intelligibly describe the judgment, stating the names of the parties in whose favor, and against whom, the time when, and the court in which, the judg ment was rendered; and, if it was rendered in the supreme court, the county in which the judgment-roll is filed.(1) It must require the sheriff to return it to the proper clerk, within sixty days after the receipt thereof.(2) Except as otherwise prescribed in the next section, it must be made returnable to the clerk, with whom the judgment-roll is filed. Co. Proc., part of 3 289, consolidated with id., 290. (1) Pierce v. Craine, 4 How. 257; Park v. Church, 5 id, 331; Grosvenor v. Hunt, 11 id. 355; Oakley v. Becker, 2 Cow. 454; Berry v. Riley, 2 Barb. 307; Abels v. Westervelt, 15 Abb. 230; Fake v. Edgerton, 3 id. 229; 5 Duer, 681; Farnham v. Hildreth, 32 Barb. 277; Clarke v. Miller, 18 id. 269. (2) Morange v. Edwards, 1 E. D. Smith, 415; Spencer v. Cuyier, 17 How. 157, 9 Abb. 383; Wilson v. Wright, 9 How. 460; Winebrener v. Johnson, 7 Abb. N. S. 202; Jenkins v. McGill, 4 How. 205; L. 1850, ch. 225,3; Bowinar v. Cornell, 39 Barb. 69; Humphrey v. Hathorn, 24 id. 278: Paige v. Wil lett, 5 Trans. App. 27; Brookfield v. Reineen, 4 id. 278; People v. Lott 21 Barb. 131; Swezey v. Lott, 21 N. Y. 481; Barker v. Binninger, 14 id. 270; Kingston Bank . Eltinge, 40 id. 401; Flanagan v. Tinen, 53 Barb b87 Baker v. Martin, 3 id. 634; Hall. Ayer. 19 How. 91; 9 Abb. 230 Bee Rule 8. |