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lands is appealable to the supreme court (Пammond v. Carpenter, 29 How. 43).

a. Brooklyn city court.-Appeal lies to the supreme court from orders made before judgment in actions in the city court of Brooklyn, when such orders involve the merits and will necessarily affect the judgment to be rendered (Moore v. Wood, 19 How. 405); and from an order denying a motion for a new trial (Suydam v. Grand Street R. R. Co. 17 Abb. 304).

b. On an appeal from the city court of Brooklyn, the supreme court may order a new trial (Von Latham v. Rowan, 17 Abb. 238).

c. New trial.—The granting a new trial in a suit before a justice of the peace, under section 366 of the code, is a matter of discretion, and where the county court has denied a new trial except upon terms, the supreme court cannot review the order (Wavel v. Wiles, 24 How. 635).

d. What can be reviewed.-The supreme court can review only judgments actually made after hearing the parties in the county court (Lynch v. McBeth, 7 How. 113); and cannot review a judgment by default (Dorr v. Birdge, 8 Barb. 351; 5 How. 323; nor a judgment entered by stipulation, and to enable the party to appeal, before the disposal of all the issues on the record (Perkins v. Farnham, 10 How. 120).

e. This section authorizes an appeal from an order of a county judge in supplementary proceedings (Crounse v. Whipple, 34 How. 333), but doubtful whether an appeal can be taken to supreme court from an order of a county judge granting a new trial (Taylor v. Scoville, 54 Barb. 34).

§ 345. Security must be given, as upon appeal to court of appeals.

Security must be given upon such appeal, in the same manner, and to the same extent, as upon an appeal to the court of appeals.

f. Unless security be given as required by section 334, the appeal is ineffectual for any purpose (Jones v. Decker, 14 Abb. 391).

$346. Appeals, where heard.

Adpeals in the supreme court shall be heard at a general term, either in the district embracing the county where the judgment or order appealed from was entered, or in a county adjoining that county, except that where the judgment or order was entered in the city and county of New York, the appeal shall be heard in the first district.

g. An appeal from a surrogate's court admitting, or refusing to admit, a will to probate should, in the first instance, be heard at general term (Watts v. Aiken, 4 How. 439).

h. On an appeal from an inferior court to the supreme court, the date of issue is the day of filing the judgment-roll in the appellate court (Anon. 2 Code Rep. 41).

See Laws 1870, ch. 408, s. 10, note to § 18, ante.

§ 347. (Am'd 1849.) Judgment on appeal.

Judgment upon the appeal shall be entered and docketed

with the clerk in whose office the judgment-roll is filed. When the appeal is heard in a county other than that where the judg ment-roll is filed, or is not from a judgment of a county court, the judgment upon the appeal shall be certified to the clerk with whom the roll is filed, to be there entered and docketed.

a. This section authorizes the entry of a new judgment on the appeal to the supreme court (Eno v. Crooke, 6 How. 462).

b. In all cases of appeal from the circuit, the judgment on the appeal should be certified by the clerk with whom the roll is filed, to be there entered and docketed (Andrews v. Durant, 6 How. 191). Where the defendants entered judgment as of a nonsuit, and filed the roll in Ulster county, where the venue was laid, and on appeal to the general term at Albany, judgment was affirmed, and the defendant entered judgment, and filed another roll in Albany county, it was held that the latter judgment was irregular (ib.)

CHAPTER IV.

Appeals in the Supreme Court, and the Superior Court and Court of Common Pleas of the city of New York, from a single judge to the general term.

SECTION 348. Appeals from circuit and special term to same court in general term. Security on appeals. Action on under

taking.

349.

350.

Appeals from orders at special term.
Appeals from orders at chambers.

$348. (Am'd 1849, 1851, 1852, 1859, 1862.) Appeals from circuit and special term to same court in general term. Security on ap peal. Action on undertaking.

In the supreme court, the superior court of the city of New York, and the court of common pleas for the city and county of New York, an appeal upon the law may be taken to the general term from a judgment entered upon the report of referees or the direction of a single judge of the same court, in all cases, and upon the fact when the trial is by the court or referees. Such an appeal, however, does not stay the proceedings, unless security be given as upon an appeal to the court of appeals, and such security be renewed as in cases required by section 335, on motion to the court at special term, or unless the court, or a judge thereof, so order, which order may be made upon such teras, as to security, or otherwise, as may be just, such security not to exceed the

amount required on an appeal to the court of appeals. In the supreme court the appeal must be heard in the same manner as if it were an appeal from an inferior court.

No action shall be commenced upon any undertaking given or to be given in pursuance of the provisions of this section, until ten days after the service of notice on the adverse party of the entry of the order or judgment affirming the judgment appealed from. And in case an appeal has been or shall be taken to the court of appeals from such order or judgment of affirmance, and security given according to law so as to stay the issuing of execution, no action shall be commenced or recovery had upon any undertaking given, or to be given, in pursuance of the provisions of this section, until after the final determination of such appeal.

a. Appeal from judgment on frivolous demurrer.—When a judgment is ordered for the plaintiff on a frivolous demurrer to the complaint, and such order is affirmed at general term, and then the plaintiff enters his judgment, such judgment may be appealed from to the general term, and it must be in order to have a review in the court of appeals (Hollister B'k v. Vail, 15 N. Y. 593; see ante, p. 365, g).

b. Stay of proceedings.—Security.-On an appeal to the general term, from a judgment entered on the report of a referee, or at special term, no security is required unless the appellant desires a stay of proceedings (Parsons v. Suydam, 4 Abb. 134; Niles v. Battershall, 26 How. 93; 18 Abb. 161; Genter v. Fields, 1 Keyes, 483; Halsey v. Flint, 15 Abb. 367; Kitching v. Diehl, 40 Barb. 433; Ten Brouck v. Hudson R. R. R. 7 How. 137). If he would have proceedings stayed upon the judgment, he must either give with his notice of appeal the security required on an appeal to the court of appeals, or obtain an order for a stay of proceedings from the court or a judge (Niles v. Battershall, 26 How. 93; Smith v. Heermance, 18 How. 261; Staring v. Jones, 13 How. 423; Armoux v. Homans, 32 How. 382); a stay may be ordered, although no undertaking has been filed (Mills v. Thursby, 11 How. 129; and see Wright v. Delafield, 11 How. 465; Staring v. Jones, 13 How. 423; Polhamus v. Moser, 7 Rob. 443). The court refused a stay of proceedings on appeal without security, where appellant had consented to accept respondent's bond to return the amount collected on the judgment, if the judgment should be reversed (Mills v. Thursby, 11 How. 124).

c. If an appellant has given security on appeal to the general term, and the sureties becoming insolvent, he is ordered to give new sureties, his failing to comply with such order is not ground for dismissing his appeal (Genter v. Fields, 1 Keyes, 483).

d. Amount of security to stay proceedings. On an appeal under this section, the undertaking, in order to stay proceedings, in the absence of any order on the subject, must provide for the payment of all the costs, as well as the damages which may be awarded against the appellant on the appeal, not exceeding $500; if the undertaking omit to provide for the damages on the appeal, it is good so far as it goes, but does not stay the proceedings (Chemung Canal Bank v. Judson, 10 How. 133; Halsey v. Flint, 15 Abb. 367).

e. What judgments are appealable.—The judgment from which an appeal may be taken to the general term means the same thing as a judgment from which an appeal may be taken to the court of appeals--a final judgment (Lawrence v. Farmers' Loan and Trust Co. 15 How. 57; D'Ivernois v.

Leavitt, 8 Abb. 59; McMahon v. Allen, 7 id. 1; The People v. Haws, 34 Barb. 69; Griffin v. Cranston, 5 Bosw. 658). See ante, p. 533, d.

a. A judgment is to be deemed entered by the direction of a single judge when it is entered by the clerk at the circuit upon the verdict of a jury under section 264; from such a judgment an appeal upon the law as presented by exceptions may be taken to the general term without any motion previously made at special term for a new trial (Morrison v. N. Y. & Harlem R. R. Co. 32 Barb. 568; Morange v. Morris, 12 Abb. 164; 32 Barb. 650; Jackson v. Fassett, 12 Abb. 281).

b. If the general term, without objection from either party, entertain an appeal in a case not properly appealable, their decision on such appeal is binding on the parties (D'Ivernois v. Leavitt, 8 Abb. 59; Griffin v. Cranston, 5 Bosw. 658).

c. There can be no appeal in the first instance to the general term on a question of fact only. A motion for a new trial must first be made at the special term (Collins v. Albany, &c. R. R. Co. 5 How. 435; Lobach v. Hotchkiss, 17 Abb. 88).

d. A judgment is deemed entered by the direction of a single judge when it is entered by the clerk at the circuit, upon the verdict of a jury, pursuant to section 264 (Morrison v. New Haven R. R. Co. 32 Barb. 568; Morange v. Morris, 32 Barb. 650).

e. Noticing appeal for argument.-Semble, the respondent may notice the appeal for argument immediately after the case or exceptions are settled (Anderson v. Dickie, 26 How. 199; see Rule XX. of Superior Court of N. Y., and 21 How. 438).

ƒ Order of appeal on calendar.—An appeal cannot be heard out of its order on the calendar, on the ground that it is frivolous ( Wilder v. Lane, 34 Barb. 54; 12 Abb. 351).

g. Motion to dismiss appeal.-A motion to dismiss an appeal for irregularity must be made at the general term (Barnum v. Seneca Ĉo. B'k, 6 How. 82), before the appeal is called for argument; and where a party, instead of moving to dismiss an appeal immediately on its being brought, waits until the hearing, before taking the objection, he will not be allowed his costs (Williams v. Fitch, 15 Barb. 654).

h. Failing to make a case.-A party may appeal upon the judg ment-roll alone. The only effect of omitting to make a case is to compel the party to argue his appeal on the judgment-roll alone (Burger v. Dubernet, 7 Rob. 1). Any irregularities in the case should be corrected on motion at special term, or by motion at general term, to strike the case from the calendar; they cannot be insisted upon when the appeal is reached (Orters v. Groupe, 15 Abb. 263; Frost v. Smith, 7 Bosw. 108; Seeley v. Chittenden, 4 How. 265; see, however, Warren v. Eddy, 13 Abb. 28).

i. What questions may be raised on the appeal.-On an appeal from a judgment, the appellant cannot insist that the verdict was against evidence; that question could only be raised on a motion for a new trial (Anthony v. Smith, 4 Bosw. 503; and see Hoxie v. Green, 37 How. 97; but see Durant v. Einstein, 5 Rob. 424; Foote v. Roberts, 7 Rob. 17).

j. A question as to the jurisdiction of the court cannot be raised for the first time on appeal (Mosselman v. Caen, 21 How. 248; and see 16 N. Y. 263). k. Where, on appeal from a judgment, the case states that the cause was submitted, "counsel for the defendant admitting that the defendants are liable for payment of a bill," being one of the bills on which plaintiff sought to recover, the defendants on appeal cannot question the correctness of the decision (Kohler v. Wright, 7 Bosw. 318).

7. The court at general term cannot find the facts on which to base a final judgment. The facts must either be conceded on the trial or have been found by a jury (Purchase v. Matteson, 25 N. Y. 211).

m. The court at general term, on an appeal from a judgment at special term, cannot look into the question whether an order of arrest was properly granted (Ross v. West, 2 Bosw. 360).

a. Where the complaint does not state facts sufficient to constitute a cause of action, and the defect is not cured by proof on the trial, in that case, although the objection is not taken by demurrer, or on the trial, it may be taken on appeal from the judgment (Cole v. Blunt, 2 Bosw. 117; contra, see Pope v. Dinsmore, 8 Abb. 429; 29 Barb. 367); and semble, the court cannot review errors appearing on the face of the record, where no exceptions have been taken (Brewer v. Irish, 12 How. 481).

b. The appellate court may and ought to take an objection apparent on the record, and which goes to the merits, although not taken in the court below; especially, where infants are concerned (Sandford v. Granger, 12 Barb. 392). An objection which was not raised at the trial, and which if it had been, might probably have been obviated, cannot be urged on appeal (Stewart v. Smith, 14 Abb. 75; Crooke v. Mali, 11 Barb. 205; see Pepper v. Haight, 20 Barb. 429; Snell v. Snell, 3 Abb. 430; Jackson v. Smith, 16 Abb. 201; Smith v. Floyd, 18 Barb. 523; Colwell v. Lawrence, 24 How. 324); and where the court is satisfied, from the general scope and tenor of the proceedings on the trial, that a particular fact was not a matter of contest, nor ground of objection there, but was assumed or taken for granted in the conduct of the cause, the appellate court will conclude the fact was as it was assumed to be (Paige v. Fazakerly, 36 Barb. 392). For what is assumed as true on the trial cannot be questioned on the appeal (Munson v. Hegeman, 13 Barb. 213); and any fact assumed on the trial is as much in the case as if it were properly proved (Paige v. Fazakerly, 36 Barb. 395; Fake v. Whipple, 39 Barb. 339) Where no request is made at the trial to submit a particular question of fact to the jury it is too late to raise the objection on appeal (Shafer v. Guest, 6 Rob. 264). c. The authority of the general term upon appeals, is not confined to a simple reversal or affirmance, it may make such order as the special term should have made (Howard v. Freeman, 7 Rob. 25; 3 Abb. N. S. 292; and see 29 N. Y. 400); may examine the evidence at large, and upon the whole case, including the law and the facts, set aside the verdict, and grant a new trial (Macy v. Wheeler, 30 N. Y. 231). A reversal on a question of fact must be consistent with the rules of law (Ball v. Loomis, 29 Ñ. Y. 412).

d. Where special questions of fact are submitted to a jury and the charge of the judge in submitting them is not stated in the case, it will be presumed on appeal, nothing appearing on the contrary, that such instructions were correct (Marine Bank v. Clements, 6 Bosw. 166; see Parsons v. Brown, 15 Barb. 590; Winterson v. Eighth Ave. R. R. Co. 2 Hilton, 389; Carnes v. Platt, 6 Rob. 270; Hogan v. Cregan, id. 137).

e. On appeal the respondents are entitled to the benefit of any presumption which will uphold their judgment, in the absence of evidence properly in the case, upon the point in question (Lee B'k v. Satterlee, 17 Abb. 6).

f. A judgment cannot be reversed because some counts in the complaint are bad, if the complaint contains good counts to which all the evidence applies (Snell v. Snell, 3 Abb. 426).

g. A judgment which is authorized by the facts, found by the court or referee, will not be reversed, for the reason that the court below, or the referee, has found erroneous conclusions of law (Scott v. Pilkington, 15 Abb. 280).

h. Admission of illegal or irrelevant testimony is error, entitling to a reversal, unless it be shown that no harm was done (Ward v. Wash. Ins. Co. 6 Bosw. 230).

i. Judgment on appeal.-The judgment on appeal should be certified to the clerk with whom the roll is filed, and the judgment is to be there entered (Andrews v. Durant, 6 How. 191).

j. The court on reversing a judgment cannot render judgment in favor of the appellant. It should order a new trial (Meyer v. City of Louisville, 26 Barb. 609; 7 Abb. 6).

k. The court, on reversing a judgment, has no power to order a retrial, either wholly or in part, on the evidence given on the previous trial (Bissell v. Hamlin, 13 Abb. 22).

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