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 sec tion does not authorize the discharge of a levy, made by virtue of a warrant of attachment.

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 discretion 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 otherwise exceed that sum. Substitute for part of Co. Proc., § 339.

§ 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. 37, § 2, as am'd by L. 1861, ch. 288 (4 Edm. 200).

§ 1314. [Am'd, 1877.] Id.; on appeal by a domestic muniipal 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, without 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, post.

1

§ 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 chapter, the appellant must, within twenty days after it is perfected, cause a copy of the judgmentroll, 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 chap ter, 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 re spondent may cause those papers to be so transmitted; and he is entitled 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.

§ 1316. Interlocutory judgment, or intermediate order, may be reviewed.

An appeal, taken from a 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 interlocutory 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. [Am'd, 1895.] Judgment or order on appeal. Upon an appeal from a judgment or an order, the appella division of the supreme court, or general term, to which the appeal is taken, may reverse or affirm, wholly or partly, or may modify, the judgment or order appealed from, and each inter locutory judgment or intermediate order, which it is authoriz:i to review, as specified in the notice of appeal, and as to any all of the parties, and it may, if necessary or proper, grant new trial or hearing. A judgment, affirming wholly or partly a judgment, from which an appeal has been taken, shall no expressly and in terms, award to the respondent, a sum money, or other relief, which was awarded to him by the judg ment so affirmed.

See Co. Proc., § 330; L. 1895, ch. 946.

§ 1318. When no appeal lies from judgment of reversal Where a judgment, from which an appeal is taken, is reversed upon the appeal, and a new trial is granted, an appeal canne be taken from the judgment of reversal; but upon an appes from the order granting a new trial, taken, as prescribed by law the judgment of reversal must also be reviewed.

§ 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 therefrom had not been taken.

§ 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.

§ 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 judgment 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 county clerk must correct his docket accordingly. The lien of a judgment, the docket of which is not corrected, as prescribed in this section, remains unaffected by the reversal or modification thereof, until the decision of the court of appeals, upon an appeal from the judgment reversing or modifying the same, or the expiration of the time to take such an appeal.

§ 1322. Id.; when reversal, etc., was by court of appeals. Where a final judgment for a sum of money, or directing the payment of a sum of money, has been reversed, or affirmed as to part only of the sum, upon an appeal to the court of appeals, the docket may be corrected, as prescribed in the last section, at any time after the remittitur has been filed in the court below.

§ 1323. [Am'd, 1877, 1880.] Restitution; when awarded. Where a final judgment or order is reversed or modified, upon appeal, the appellate court, or the general term of the same court, as the case may be, may make or compel restitution of property or of a right, lost by means of the erroneous judgment or order; but not so as to affect the title of a purchaser, in good faith and for value. Where property has been sold, the court may compel the value, or the purchase price, to be restored, or deposited to abide the event of the action, as justice requires. When the appeal is from a judgment in favor of the owner of

real estate, in an action to compel the specific performance of a contract for the sale thereof, such owner shall have the same right to sell or dispose of the same as though no appeal had been taken; unless the appellant shall file with the clerk of the court a written undertaking in a sum fixed by the court, or a judge thereof, upon a notice to the respondent of at least ten days, and to be approved by such court or judge, to the effect that the appellant will, in case the judgment appealed from shall be affirmed, pay to such owner such damages as he may suffer by reason of such appeal, not exceeding the amount of the penalty in such undertaking. Such undertaking may be filed at any time during the appeal, but any sale of such real estate or contract to sell the same in good faith and for a valuable consideration, after said judgment and before the filing of such undertaking, shall be as valid as if such undertaking had not been filed. In case such undertaking shall not be filed, the respondent shall be entitled, at any time during such appeal, to an order discharging of record any notice of pendency of action filed in the action, and also cancelling and discharging of record said contract, in case the same has been recorded. Substitute for Co. Proc., part of § 330.

TITLE II.

Appeal to the court of appeals.

Sec. 1324. What appeals may be taken.

1325. Limitation of time to appeal.

1326. Security to perfect appeal.

1327. Security to stay execution on judgment, etc., for money.
1328. Id.; on judgment, etc., for delivery of property.

1329. Id.; on judgment for a chattel.

1330. Id.; on judgment, etc., directing conveyance.

1331. Id.; on judgment, etc., for possession of real property.

1332. Construction of the last five sections.

1333. The last six sections qualified.

1334. Undertakings may be in one instrument; form, and service thereof. 1335. Exceptions to sureties; justification.

1336. Appeal from final judgment rendered after affirmance

of in

terlocutory judgment, or denial of motion for new trial,

1337. What questions are brought up for review.

1338. When questions of fact to be reviewed.

1339. When a case to be prepared, etc., for the appeal.

§ 1324. What appeals may be taken.

An appeal may be taken to the court of appeals, in a case where that court has jurisdiction, as prescribed in sections 190 and 191 of this act.

Co. Proc., § 333, first sentence.

§ 1325. [Am'd, 1895.] Limitation of time to appeal.

An appeal to the court of appeals, from a final judgment, must be taken, within one year after final judgment is entered, upon the determination of the appellate division of the supreme court, and the judgment-roll filed. An appeal to the court of appeals, from an order, must be taken within sixty days after service, upon the attorney for the appellant, of a copy of the order appealed from, and a written notice of the entry thereof.

Substitute for Co. Proc., § 331; L. 1895, ch. 946.

§ 1326. Security to perfect appeal.

To render a notice of appeal, to the court of appeals, effectual, for any purpose, except in a case where it is specially prescribed by law, that security is not necessary, to perfect the appeal. appellant must give a written undertaking, to the effect, that he will pay all costs and damages, which may be awarded against him on the appeal, not exceeding five hundred dollars. The appeal is perfected, when such an undertaking is given and a copy thereof, with notice of the filing thereof, is served, as prescribed in this title.

Co. Proc., part of § 334, am'd.

§ 1327. Security to stay execution on judgment, etc., for

money..

If the appeal is taken from a judgment for a sum of money, or from a judgment or order, directing the payment of a sum of money, it does not stay the execution of the judgment or order, until the appellant gives a written undertaking, to the effect, that if the judgment or order appealed from, or any part thereof, is affirmed, or the appeal is dismissed, he will pay the sum, recovered or directed to be paid, by the judgment or order, or the