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38 N. Y. 111; 6 Trans. App. 236). But except where the action before the justice is discontinued by reason of title coming in question, no appeal lies to the court of appeals in an action commenced in a justice's court, unless an order allowing such appeal has been entered (Smith v. White, 23 N. Y. 572; see ante, p. 17, b.)

a. Where the record does not show that the action was originally commenced in a justice's court, that fact may be shown by affidavit, on a motion to dismiss the appeal (Pugsley v. Kisselburgh, 10 N. Y. 420).

b. Special proceedings.-The "special proceedings" mentioned in subdivision 3, of section 11, are not the "provisional remedies" provided for by §§ 178 to 244 (Genin v. Tompkins, 1 Code. Rep. N. S. 415). An application by petition to compel a specific performance by infant heirs, of a contract for the sale of land made by the ancestor, is a special proceeding within section 11 of the code, and an appeal lies to the court of appeals from a final order at general term, made upon such application (Hyatt v. Seeley, 11 N. Y. 52).

c. Reading the sentence (sub. 3 of § 11), in connection with the other parts of the section, it is evident that it contemplates a proceeding based upon the judgment, and which assumes its validity; and this is the construction which has been put upon it by the court of appeals (Sherman v. Felt, 3 How. 425; Dunlop v. Edwards, 3 N. Y. 341; see 16 N. Y. 296). It is not the policy of· the code to allow a review in the court of appeals of interlocutory orders in an action, unless they are such as put an end to the suit, and prevent the rendering of a judgment from which an appeal will lie, or unless there is an appeal from the judgment (Humphrey v. Chamberlain, 11 N. Y. 275).

d. Discretion.-Orders in the following cases held not appealable as involving matter of discretion merely refusal of a referee to adjourn a hearing (Carpenter v. Hayes, 1 Code Rep. Ñ. S. 414), opening or refusing to open biddings at a judicial sale (Hazleton v. Wakeman, 3 How. 457; Lord v. Peister, 5 Mon. Law Rep. N. S. 309), requiring receiver of insolvent corporation to give security for costs (Briggs v. Vandenburgh, 22 N. Y. 467), setting aside proceedings as a matter of form (Sherman v. Felt, 2 N. Y. 186; Dunlop v. Edwards, 3 N. Y. 341; Humphrey v. Chamberlain, 11 N. Y. 274), denying a rehearing at special term (Marvin v. Seymour, 1 N. Y. 535), vacating order of reference to ascertain damages on injunction (Anon. 4 How. 80), setting aside decree of divorce taken by default (Carpenter v. Carpenter, 4 How. 139), dissolving temporary injunction (Vandewater v. Kelsey, 3 How. 338), vacating receiver's sale (Wakeman v. Price, 2 N. Y. 334), denying motion to set aside judgment on warrant of attorney (Dunlop v. Edwards, 3 N. Y. 341), refusing a stay of proceedings on a judgment (Enos v. Thomas, 5 How. 359), denying a motion for leave to discontinue an accounting by a guardian (Tompkins v. Soulice, 7 How. 194), denying a rehearing of an interlocutory decree (King v. Merchants' Ex. Co. 5 N. Y. 54), denying leave to file exceptions to report of referee, after time to serve had elapsed (id.), denying motion that amended answer stand as part of the pleadings (Sacketts B'k v. Burwell, 9 How. 95), vacating a judgment and ordering a new trial in ejectment pursuant to 2 R. S. 309 (Evans v. Millard, 16 N. Y. 619), refusing to set aside an execution issued after five years from the recovery of the judgment and without leave (B’k of Genesee v. Spencer, 18 N. Y. 150), allowance or refusal of a common law certiorari to review proceedings of commissioners of assessment (The People v. Stillwell, 19 N. Y. 531), refusing a preliminiary injunction (Hasbrouck v. Kingston B'd of Education, 3 Trans. App. 106), denying motion to correct a case (Hoe v. Sanborn, 1 Trans. App. 160), vacating a judgment as fraudulently entered (Baldwin v. Mayor of N. Y. 2 Keyes, 387), granting or refusing new trial for newly discovered evidence (Lawrence v. Ely, 38 N. Y. 42), vacating a sale and opening judgment in foreclosure (McReynolds v. Munns, 2 Keyes, 214; Dous V. Congdon, 28 N. Y. 122), amendment on the trial (Richtmeyer v. Remsen, 38 N. Y. 206), requiring defendant to elect upon which of several grounds he will base his defense (Kerr v. Hays, 35 N. Y. 331), striking a cause from the calendar (Cotes v. Smith, 31 How. 146), granting or refusing leave to a re

ceiver of an insurance company to commence an action (Re Reeves, 34 N. Y. 359).

a. Involving merits.-The following have been held to be orders not involving the merits, or necessarily affecting the judgment, and therefore not subject to review: a denial of a motion to stay a trial until the decision of another cause (James v. Chalmers, 6 N. Y. 209); removal of action to United States court (Illius v. N. Haven R. R. 13 N. Y. 597; and see Kanouse v. Martin, 6 How. 240). That damages were assessed against defendant without any proof of his default to answer (Catlin v. Billings, 16 N. Y. 622).

b. Costs.-Ordinarily an appeal does not lie from a decision allowing, or refusing to allow, costs (Sherman v. Daggett, 3 How. 426; Collumb v. Read, 24 N. Y. 517; McClure v. Super. of Niagara, 4 Trans. App. 275; Hoe v. Sanborn, id. 160; Thompson v. Bullock, 16 How. 213); unless, perhaps, in a case of palpable abuse (Barker v. White, 5 Abb. N. S. 124). And an order otherwise appealable, is not the less so because it affects only costs (McGregor v. Comstock, 19 N. Y. 581). An appeal lies from an order made by the supreme court, requiring a person beneficially interested in a recovery, sought to be had in the name of another, to pay the costs of the defendant in the action (Giles v. Halbert, 12 N. Y. 32); but no appeal lies from an order awarding or refusing costs to executors (Fort v. Gooding's Ex'ors, 5 Mon. Law. Rep. N. S. 399); nor denying a motion for a retaxation of costs (Hoe v. Sanborn, 36 N. Y. 93; The People v. Lewis, 28 How. 470); granting or refusing an extra allowance (McGregor v. McGregor, 32 N. Y. 470; Clarke v. City of Rochester, 34 N. Y. 355).

c. Appealable orders.-The following orders held appealable: order dismissing appeal to general term, on the ground that it was too late (Bates v. Voorhies, 20 N. Y. 525); order vacating a satisfaction, and restoring judgment (McGregor v. Comstock, 19 N. Y. 581); order affirming an order at special term, apportioning debts of insolvent bank (Re Hollister B'k, 23 N. Y. 508); an order vacating a writ of assistance, but not ordering that the ejected party be restored to his possession, is appealable by such party (Chamberlain v. Choles, 35 N. Y. 477); an order of the supreme court, made at a general term, confirming the report of commissioners to appraise the compensation to be made for land proposed to be taken under the General Railroad Act, and refusing to direct a new appraisal (Re N. Y. Cent. R. R. Co. v. Marvin, 11 N. Y. 276); an order made after judgment rendered upon the striking out an answer as sham, where such order vacates the judgment upon the ground that after striking out the answer, the plaintiff's cause of action had ceased to exist (Edson v. Dillaye, 17 N. Y. 158).

d. Where the general term has entertained an appeal from, and reversed an order (not properly appealable) the court of appeals will review the order of the general term (N. Y. Ice Co. v. N. West. Ins. Co. 12 Abb. 414; 21 How. 296).

e. An order merely directing the names of certain parties plaintiff to be stricken out, may not be reviewable in the court of appeals, but if such order goes further, and orders the parties whose names are so stricken out to be made defendants, and prescribes what amendments shall be made in the complaint, it is appealable (Lahens v. Fielder, 15 Abb. 177).

f. Order granting a new trial.-An appeal to the court of appeals, from an order granting a new trial, lies only when the party obtaining the verdict is content, if he cannot sustain it, to fail wholly in his action or defense (Lanman v. Lewiston R. R. Co. 18 N. Y. 493). Where the order is for a new trial, unless the plaintiff will remit a part of his verdict, he cannot appeal and retain the benefit of the alternative judgment for a reduced amount. Accordingly, where, in such a case, the plaintiff stipulated that in case the order for a new trial should be affirmed, the judgment should be reduced as proposed by the court below, his appeal was dismissed (id.)

g. An appeal to the court of appeals from an order of the court below, granting a new trial, does not bring up for review questions of fact. If no

error of law is found in the decision, it will be affirmed, and final judgment given against the appellant, according to the stipulation required to accompany the notice of appeal in such cases (Hoyt v. Thompson's Executors, 19 N. Y. 207).

a. An appeal to the court of appeals from an order denying a new trial, does not per se preclude the opposite party from proceeding to enter judgment. The entry of judgment in such a case does not affect the appeal from the order (Valton v. Nat. Loan Fund Life Ass. Soc. 19 How. 515; McMahon v. Allen, 22 How. 193).

b. Where, after a trial by jury, a new trial is ordered by the court below, the court of appeals will affirm the order, if it can be maintained upon any view of the evidence (Sanford v. Eighth Ave. R. R. 23 N. Y. 343; Cook v. N. Y. Cent. R. R. Co. 3 Trans. App. 8; Macy v. Wheeler, 30 N. Y. 231); for upon an appeal from an order granting a new trial, the judgment cannot be reversed, unless the case made, negatives any inference that the court below may have granted the new trial, because it came to a different conclusion upon the facts from that found on the original trial (Miller v. Schuyler, 20 N. Y. 522). The party defeated must go down to a new trial, unless he can show, by a statement of the facts considered as established at the general term, that the judgment was founded upon an erroneous conclusion of law (id.) c. No appeal from order denying a new trial, on the ground of surprise and newly discovered evidence (Lawrence v. Ely, 38 N. Y. 42; Bedell v. Chase, 34 N. Y. 386; but see Adams v. Bush, 2 Abb. Ñ. S. 104); or on the ground that the verdict is against evidence, or against the weight of evidence (Young v. Davis, 30 N. Y. 134).

d. Granting or refusing a new trial of a special issue is not appealable (Clark v. Brooks, 2 Abb. N. S. 385).

Note to subdivision 2.

e. Statement of facts.-The only facts of which the general term is authorized to make a statement under this section, are those uncontroverted or conceded on the trial (Purchase v. Mattison, 15 Abb. 402). The general term has no right of itself to deduce facts from evidence in order to found a judgment. This section has not varied the rule, or established another, in relation to proceedings that may be had at the trial, or in relation to the powers and duties of the court at general term (Brower v. Orser, 2 Bosw. 365).

f. Where the court at general term establish findings of fact different from the facts found by the court at special term, or by the referee, such finding of facts at general term should be made part of the record on appeal to the court of appeals (Smith v. Grant, 17 How. 381). Where such a case is sent back by the court of appeals for resettlement, the general term cannot send the case to the special term or referee, for a restatement of the facts. The court of appeals should be furnished with the same facts as those on which the court at general term based its judgment (id.) Where, in such a case, the facts as found by the general term, have not been stated in the record, pursuant to rule 38, the general term may allow a resettlement on terms (id.)

9. Papers on the appeal.-Where the case on an appeal served on the respondent is imperfect, his remedy is by motion on notice. A respondent is at liberty to move ex parte to dismiss the appeal in the court of appeals (Rule VII.), only where there is a total failure to serve any case (Boters v. Tallmadge, 24 N. Y. 166). A case or exceptions cannot form part of the papers on an appeal, unless filed prior to entry of judgment, or unless an order be obtained authorizing the case or exceptions to be annexed to and to form part of the judgment-roll (Anderson v. Dickie, 26 How. 199).

h. Where an order which the court of appeals has no jurisdiction to review, and the papers upon which such order was granted by the court below are incorporated in the appeal-book, they will be stricken out, upon motion, in the court of appeals (Smith v. Grant, 15 N. Y. 590).

a. An appeal from a judgment entered after a second trial, brings up for review only the judgment appealed from. If the record transmitted to the court of appeals contains, in addition to the case and exceptions made upon the second trial, the case made upon the first trial, on a motion to set aside a nonsuit, the latter proceedings may be, and should be, stricken out on motion (Wilcox v. Hawley, 31 N. Y. 648). The court only reviews the questions of law, presented by the exceptions stated in the case (id.)

b. Power of the court on appeal.-After a notice of appeal is served, and an undertaking perfected, the court of appeals is so far possessed of the case as to be competent to make any necessary order; e. g., to dismiss the appeal, although no return has been filed (Adams v. Fox, 27 N. Y. 640).

c. The court of appeals will not, on an appeal against the plaintiffs in an action, review the judgment below, so far as it affects adverse defendants against whom no appeal was taken from the special to the general term (Cotes v. Smith, 31 How. 146).

d. This court cannot review those parts of a decree of a court below not appealed from (Robertson v. Bullions, 11 N. Y. 243; Kelsey v. Western, 2 N. Y. 500).

e. Where a referee reported that the defendant had received damage to the amount of "from $12 to $15," but which he did not allow to the defendant, although in the judgment of the court he ought to have done so, the court of appeals on appeal from the judgment for the plaintiff, entered on such report, cannot determine the amount of defendant's damage, but is bound to order a new trial (Moffet v. Sackett, 18 N. Y. 522).

f. A defense not insisted upon in the court below cannot be made available on appeal (Hazard v. Spears, 4 Keyes, 469; Forrest v. Forrest, 38 N. Y. 469).

9. An objection that the verdict was against evidence not presented at the circuit or general term, cannot be raised in the court of appeals (Buck v. Remsen, 34 N. Y. 383), nor can an objection that the judgment is erroneous in form (id.)

h. On an appeal from the superior court of Buffalo, where no question as to its jurisdiction was raised, jurisdiction was assumed to have existed (Bidwell v. Astor Mut. Ins. Co. 16 N. Y. 263).

i. Where the only exceptions taken at special term were to the refusal of the court to nonsuit the plaintiff, on appeal, the only question before the court is, whether there was sufficient evidence to send the case to the jury (Magee v. Osborn, 32 N. Y. 669).

j. The court of appeals has no power to review a judgment where the judge, on a trial without a jury, after hearing the evidence on both sides, orders judgment for defendant on the ground that the plaintiff has misconceived his remedy, and is not entitled to the relief claimed, even if his allegations were all true; but there is no finding of facts by the judge (Bridger V. Weeks, 30 N. Y. 328).

k. Where there has been a reference under subd. 3 of section 271, every question depending not on the facts found, but on error in the proceedings on the trial, or in the determination of the facts, must be raised by exception. There can be no review in the court of appeals of the correctness of the determination of the facts (Marshall v. Smith, 20 N. Y. 251).

7. Where there are no exceptions contained in the case as settled, nor any allusion to any as having been taken at any time, there is nothing for the court of appeals to review. Where the only exceptions taken, relate exclusively to the finding of the referee upon matters of fact, no exception being taken to the decision upon the law, they present no question which the court of appeals can review (Weed v. N. Y. & Harlem Railroad, 29 N. Y. 616; and see Enos v. Eigenbrodt, 32 N. Y. 444).

m. Where a judgment, on trial by the court, comes up for review without any finding of facts, nothing can be presumed against the correctness of the judge's decision (Viele v. Troy and Boston R. R. Co. 20 N. Y. 184). The

court never presume any thing against the judgment; but if compelled by the imperfection in the statements of facts to resort to presumptions, will adopt such only as will sustain the judgment (Carman v. Pultz, 21 N. Y. 547; see City Building Co. v. Fatty, 4 Trans. App. 311; Stratton v. Cornfield, 2 Keyes, 55).

a. The court of appeals cannot look beyond the findings of fact contained in the case, in order to draw any inference of fact bearing on the appeal (Stewart v. Smith, 14 Abb. 75).

b. The review in the court of appeals must be upon the same case as that upon which the cause was decided below, and therefore, except under peculiar circumstances, there cannot be a resettlement of the case for the purposes of the appeal to the court of appeals (see Catlin v. Cole, 10 Abb. 387).

c. The finding of a referee upon a question of fact cannot be reviewed (Henry v. Wilkes, 5 Trans. App. 205; and see Macy v. Wheeler, 30 N. Y. 231; Young v. Davis, id. 134; Sandford v. Eighth Ave. R. R. Co. 23 N. Y. 343; Hoyt v. Thomp son, 19 N. Y 207; Oldfield v. Harlem R. R. Co. 14 N. Y. 310; Newton v. Bronson, 13 N. Y. 587; Barker v. White, 3 Keyes, 495; Reed v. B'd of Education, 33 How. 237; Marco v. Liverpool Ins. Co. 35 N. Y. 664; Thompson v. Kessel, 30 N. Y. 383; Macy v. Wheeler, id. 231). A finding of a material fact, wholly without evidence to sustain it, is an error of law which may be reviewed (Mason v. Lord, 40 N. Y. 477). Thus a finding of fact of an indorsement being an accommodation indorsement, based on possession of the notes by the maker, and his delivery of them for his own benefit, was held to be a conclusion of law reviewable in court of appeals (Fielden v. Lahens, 6 Abb. N. S. 341).

d. A judgment affirming a judgment of a referee on a question of fact cannot be reviewed (Wiltsie v. Eaddie, 4 Abb. N. S. 393). But where the judgment of the referee is reversed at general term, on a question of fact, the whole case is presented to the court of appeals for review, as well upon the facts as the law (Peterson v. Rawson, 34 N. Y. 370).

e. If the facts found support the judgment, the court do not look further (Cady v. Allen, 18 N. Y. 574; Colwell v. Foulkes, 36 How. 306; Bergen v. Wemple, 30 N. Y. 319). The court may refer to the evidence in the case, for purpose of giving a construction to a finding of fact, which will support the judgment (Spencer v. Ballou, 18 N. Y. 327).

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f. Errors in the finding of a jury cannot be corrected in the court of appeals (Godfrey v. Johnston, 1 Keyes, 556; Parker v. Jervis, 3 id. 271).

9. A judgment will not be reversed for a defect in the pleadings which did not mislead, or affect, substantial rights (Johnson v. Hathorn, 4 Keyes, 477), or which might have been rectified on the trial (Lounsberry v. Purdy, 18 N. Y. 515; McCormick v. Pickering, 4 N. Y. 276 ; Lake Ontario R. Ř. Co. v. Martine, 18 N. Y. 585). If the judgment is substantially correct, subject to such modification as the court can make, the modification will be made, and the judgment affirmed (Casler v. Shipman, 35 N. Y. 533). Thus where the only error is excessive damages, the court may affirm the judgment on the condition that the plaintiff remit the excess (Sears v. Conover, 3 Keyes, 113). A judgment for the plaintiff on demurrer was modified on appeal (Farnham v. Mallory, 3 Keyes, 527).

h. Remittitur.-After a return has been filed, and an order made which finally disposes of the appeal, whether upon the merits or not, it is proper to remit the proceedings to the court below (4 How. 184). After a cause has been regularly remitted to the court below, the court of appeals has no jurisdiction to grant relief against any irregularity (Burcle v. Luce, 1 N. Y. 239). The only remedy is a new appeal (Newton v. Harris, 8 Barb. 306). Where too much costs are charged on the dismissal of an appeal, the remedy is by motion to the court below (Dresser v. Brooks, 4 How. 207).

i. A remittitur cannot be made on the dismissal of an appeal, under rule 2 of the court of appeals, for the reason that no return has been filed; for if no return be filed, there is nothing to remit (4 How. 211).

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