§ 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. Restitution; when awarded. [AMENDED BY CH. 416 OF 1877 AND BY CH. 529 OF 1880.] When 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 the purchaser in good faith and for value. When 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 and 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.

TITLE II.

Appeal to the court of appeals.

SECTION 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. Exception to sureties; justification.

1336. Appeal from final judgment rendered after affirmance of interlocutory 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.

§ 1325. 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. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]

§ 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, the 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.

§ 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 part thereof, as to which it is affirmed. But where the judgment or order directs the payment of money in fixed installments, the undertaking must be to the effect, that the appellant will pay each installment, which becomes payable, pending the appeal, or the part thereof as to which the judgment or order is affirmed, not exceeding a sum specified in the undertaking, which must be fixed by a judge of the court below. The court below may, at any time afterwards, upon satisfactory proof, by affidavit, that the sum so fixed is insufficient in amount, make an order, requiring the appellant to give a further undertaking, to the same effect, in a sum and within a time, specified in the order. A failure to comply with such an order has the same effect as if no undertaking had been given, as prescribed in this section.

§1328. Id.; on judgment, etc., for the delivery of property. If the appeal is taken from a judgment or order, directing the assignment or delivery of a document, or of personal property, it does not stay the execution of the judgment or order, until the thing directed to be assigned or delivered, is brought into the court below, or placed in the custody of an officer or receiver, designated by that court; or the appellant gives a written undertaking as prescribed in the next section.

§ 1329. Id.; on judgment for a chattel. If the appeal is taken from a judgment for the recovery of a chattel, it does not stay the execution of the judgment, until the appellant gives a written undertaking, in a sum fixed by the court below, or a judge thereof, to the effect that the appellant will obey the direction of the appellate court upon the appeal.

§ 1330. Id.; on judgment, etc., directing conveyance. If the appeal is taken from a judgment or order, directing the execution of a conveyance, or other instrument, it does not stay the execution of the judgment or order, until the instrument is executed and deposited with the clerk, with whom

SS 1331-1335.

APPEAL TO COURT OF APPEALS.

Tit. 2, Ch. 12. the judgment or order is entered, to abide the direction of the appellate

court.

§ 1331. Id.; on judgment, etc., for the possession of real property. [AMENDED BY CH. 542 OF 1879.] If the appeal is taken from a judgment which entitles the respondent to the immediate possession of real property, or from a judgment or order directing the sale or the delivery of possession of real property, it does not stay the execution of the judgment or order, until the appellant gives a written undertaking, to the effect that he will not while in possession of the property, commit, or suffer to be committed, any waste thereon; and that, if the judgment or order is affirmed, or the appeal is dismissed, he will pay the value of the use and occupation of the property, or the part thereof, as to which the judgment or order is affirmed from the time of taking the appeal until the delivery of the possession thereof, pursuant to the judgment or order, not exceeding a specified sum, fixed by a judge of the court below. But if the judgment directs a foreclosure and sale of real property mortgaged, an undertaking is sufficient to stay the execution of the judgment, which is to the effect that if the judgment is affirmed, or the appeal is dismissed, the appellant will pay any deficiency which may occur upon the sale, in discharging the sum to pay which the sale is directed, with interest, and the costs, and all expenses chargeable against the proceeds of the sale, not exceeding a specified sum, fixed by a judge of the court below.

§ 1332. Construction of the last five sections. Where the judgment or order from which an appeal is taken to the court of appeals, affirms a judg ment or order to the effect specified in either of the last five sections, the undertaking must be the same as if the judgment or order from which the appeal is so taken, was to the same effect as the judgment or order so affirmed.

§ 1333. The last six sections qualified. The last six sections de not extend to a case where it is specially prescribe 1 by law that an appeal may be taken, or the execution of a judgment or order appealed from may be stayed, without security, or where the security to be given, for either purpose, is specially regulated by law.

§ 1334. Undertakings may be in one instrument; form and service thereof. [AMENDED BY CH. 542 of 1879.] Where two or more undertakings are required to be given, as prescribed in this title, they may be contained in the same instrument, or in different instruments, at the option of the appellant. Each undertaking, given as prescribed in this title, must be executed by at least two sureties, and must specify the residence of each surety therein. A copy thereof, with a notice showing where it is filed, must be served on the attorney for the adverse party with the notice of appeal, or before the expiration of the time of appeal.

81335. Exception to sureties; justification. It is not necessary that the undertaking should be approved; but attorney for the respondent may, within ten days after the service of a copy of the undertaking with notice of the filing thereof, serve upon the attorney for the appellant, a written notice that he excepts to the sufficiency of the sureties. Within ten days thereafter, the sureties, or other sureties in a new undertaking to the same effect, must justify before the court below, or a judge thereof, or a referee appointed by the same, or a county judge. At least five days notice of the justification must be given. A referee may be appointed upon the motion of either party, or upon the court's own motion to take the justification of such sureties and to report the evidence upon the same to the court or judge with his opinion. The court may further direct that either party shall pay the expenses of such reference. If the court or judge finds the sureties sufficient he must indorse his allowance of them upon the undertaking, or a copy thereof, and a notice of the allowance must be served upon the attorney for the exceptant. The effect of a failure so to justify and procure an allowance, is the same as if the under

taking had not been given. The court shall also have power, in case it shall be made to appear to its satisfaction upon motion, that the exception was taken unnecessarily or for purposes of vexation, or delay, to set the same aside and approve the undertaking. [A'MD CH. 369 OF 1891. In effect June 3, 1891.]

§ 1336. Appeal from final judgment rendered after affirmance of interlocutory judgment, or denial of motion for new trial. Where final judgment is rendered in the court below, after the affirmance; upon an appeal to the appellate division of the supreme court, of an interlocutory judgment; or after the refusal by the appellate division of a new trial, either upon an application made in the first instance, at a term thereof, or upon an appeal from an order of the special term, or of the judge before whom the issues, or questions of fact, were tried by a jury; the party aggrieved may appeal directly from the final judgment to the court of appeals, notwithstanding that it was rendered at a special term, or at a trial term, or pursuant to the directions, contained in the referee's report. But such an appeal brings up, for review, only the determination of the appellate division of the supreme court, affirming the interlocutory judgment, or refusing a new trial. [AM'D BY CHAP. 946 OF 1895. In effect Jan. 1, 1896.]

§ 1337. What questions are brought up for review. An appeal to to the court of appeals from a final judgment, or from an order, granting or refusing a new trial in an action, where the appellant stipulates that upon affirmance judgment absolute shall be rendered against him, brings up for review in that court only questions of law; but where the justices of the appellate division from which an appeal is taken are divided upon the question as to whether there is evidence supporting, or tending to support, a finding or verdict not directed by the court, a question for review is presented. In any action on an appeal to the court of appeals, the court may either modify or affirm the judgment or order appealed from, award a new trial, or grant to either party such judgment. as such party may be entitled to. [AM'D BY CHAP. 946 OF 1895. In effect Jan. 1, 1896.]

§ 1338. When questions of fact to be reviewed. Upon an appeal to the court of appeals from a judgment, reversing a judgment entered upon the report of a referee or a determination in the trial court; or from an order granting a new trial, upon such a reversal; it must be presumed that the judgment was not reversed, or the new trial granted, upon a question of fact, unless the contrary clearly appears in the record body of the judgment or order appealed from. [AM'D BY CHAP. 946 OF 1895. In effect Jan. 1, 1896.]

§ 1339. When a case to be prepared, etc., for the appeal. When an appeal to the court of appeals, from a judgment, rendered by the appellate division of the supreme court, upon a verdict, subject to the opinion of the court, has been perfected, a case, containing a concise statement of the facts, of the questions of law arising thereupon and of the determination of those questions by the appellate division, must be prepared and settled, by or under the direction of the court below, and annexed to the judgment-roll. An exception is not necessary, to enable the court of appeals to review the determination of a question of law, arising upon the verdict. A certified copy of the case must be transmitted to the court of appeals, instead of the case upon which the judgment of the court below was rendered. The court below, or a judge thereof, may 'extend the time, limited by law, within which the papers must be transmitted to the court of appeals, for the purpose of enabling the appellant to procure the case to be prepared or settled. [AM'D BY CHAP. 946 or 1895. In effect Jan. 1, 1896.]

TITLE III.

Appeal to the supreme court from an inferior court.

SECTION 1340. Appeal from judgment.

1341. Limitation of time; security.

1342. Appeal from order.

1343. Limitations of time and stay of proceedings.

1344. Appeal, where and how heard.

1345. Judgment or order, where entered.

§ 1340. Appeals from inferior courts. Except appeals from inferior and local courts heretofore heard in the court of common pleas for the city and county of New York, and the superior court of Buffalo, an appeal may be taken to the appellate division of the supreme court, from a final judgment, rendered by a county court, or by any other court of record possessing original jurisdiction, where an appeal therefrom to a court other than the supreme court is not expressly given by statute, and upon such appeal, au order granting or refusing a new trial for any of the causes mentioned in section nine hundred and ninety-nine of this act, made by any of said courts, and questions of fact, may be reviewed in the same manner and to the same extent as questions of fact may be reviewed, upon appeal to the appellate division of the supreme court from a final judgment and order, granting or refusing a new trial, rendered by the same court. Appeals from inferior and local courts heretofore heard in the court of common pleas for the city and county of New York and the superior court of Buffalo, may be taken to the supreme court. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]

§ 1341. Limitation of time security. An appeal authorized by the last section must be taken within thirty days after service upon the attorney for the appellant, of the copy of the judgment, and written notice of the entry thereof. Security is not required to perfect the appeal, but to stay the execution of the judgment security must be given, and the sureties may be excepted to, and must justify, as upon an appeal to the court of appeals, from a judgment of the same amount, or to the same effect. [AM'D CHSs. 416 of 1877 AND 450 OF 1890.]

§ 1342. Appeal from order. An appeal may also be taken, as provided by section thirteen hundred and forty, from an order affecting a substantial right, made by the court or a judge, in an action brought in, or taken by appeal to, a court specified in the last section. [AM'D BY CH. 946 OF 1895. In effect Jan. 1, 1896.]

§ 1343. Limitation of time and stay of proceedings. [AMENDED BY CH. 416 OF 1877.] An appeal, authorized by the last section, must be taken, within sixty days after service upon the attorney for the appellant, of a copy of the order, and written notice of the entry thereof. Security is not required to perfect it; but it does not stay the execution of the order from which it is taken. The appellate court, or a judge thereof, may direct such a stay, upon such terms, as to security or otherwise, as justice requires.

§ 1344. Appeal where and how heard. An appeal taken as prescribed in this title, must be heard by the appellate division of the supreme court except that appeals from the judgment of any district court or of the city court in the city of New York, may be heard by the appellate division of the supreme court, or by such justice or justices of the supreme court as may be designated for that purpose by the justices of the appe late division sitting in the first judicial department. In case an appeal is heard by a justice or justices of the supreme court as hereinbefore provided, the justice or justices by whom such appeal was determined, may allow an appeal to be taken to such appellate division from such determination; and appeals from inferior courts heretofore heard by the superior court of Buffalo shall be heard by the appellate division of the