96. Where there is a general exception to a refusal to charge it is not available on review

unless all the ruling was wrong.

97. Where the case presents no general verdict, but a special finding of a particular fact by the jury, that fact and all the other facts, upon which the legal rights depend as they are presented in the pleadings, present the whole case for review.

98. Every reasonable presumption in support of the decision will be made by the court, where the parties do not bring directly and specifically to the notice of the court every point desired to be raised.

99. Where it appears by the return that the exceptions were taken at the trial and separately stated, it is not necessary that they should be authenticated by the justice who tried the cause.

100. Where the exceptions are stated in a case containing matter not necessary to present the legal questions arising upon them, the exceptions must be separated from the case under the direction of the court below.

101. Where the defendant at the trial treats the questions at the trial as purely legal and acquiesces in the disposal of them by the court, he cannot on appeal object that fucts were involved which should have been decided by the jury.

102. An objection that the action was prematurely brought, not taken upon the trial, cannot be made upon appeal. Such objections, not taken at the trial, are considered waived.

103. A general exception taken on the trial by the court after notice of the judgment, only raises the question, whether upon the facts as found, the law has been properly decided. An objection of variance between the pleadings and the proof, is not raised by euch an exception.

101. It is a universal rule, that objections which might have been obviated on the trial, if then raised, shall be considered waived by non-objection.

105. Where a defense consisting of new matter is not interposed by answer, such defense cannot be raised on appeal, on the ground that the objection by the plaintiff was presumed to have been waived on the trial.

106. In order to review a judgment after trial by the court or by referees, a case must always be made containing a statement of the facts found by the judge or referees and their conclusions of law separately stated; also the exceptions taken during the trial, and those taken after the trial and judgment, to their final conclusions of law. Exceptions which appear in the case as settled, will on appeal, be assumed to have been duly taken.

106. Where a judge on a trial before him orders judgment for the defendant on the ground that the plaintiff has misconceived his remedy; such judgment cannot be reviewed in this court, without a finding of facts by the judge.

106. Exceptions to a referee's findings of fact cannot be reviewed in this court.

107. A party who appeals from an order granting a new trial and stipulates for final judgment, in case of affirmance, concedes every conclusion of fact in the case supported by evidence. This court can correct errors of law only.

103. This court cannot regard any finding of facts, except such as shall be stated according to the provisions of the Code.

109. Where referees do not state any facts found by them, except argumentatively, in their opinion, it is not such a paper as is contemplated by the Code.

110. This court cannot review conclusions of fact, and, if no exceptions are taken to the final decision of referees, there is no question of law raised for consideration.

111. A case

containing the evidence before a referee cannot be reviewed by this court.

The case should state facts, and not the mere evidence of facts, so as to present questions

of law only.

112. This court will presume a regular appeal to the general term, where there appears bill of exceptions and an appeal to the general term.

113. The general term may pronounce judgment in the first instance, in two instances

in a cause tried by a jury, and which is brought there before judgment; in each of which cases an appeal may be taken to the court of appeals.

114. If a judgment on a report of referees is entered, without containing a case, as prescribed by the Code, the errors at the trial cannot be reviewed.

115. A case, when settled, must contain such a statement of facts as will show, necessarily, that the law is in the appellant's favor. If not, every intendment will be against him.

116. Points of law, not raised on the trial, cannot be presented on appeal.

117. A case should consist of a complete and condensed summary of all facts deemed material, and a statement of the questions intended to be reviewed, and of the rulings of the referee.

118. The report of a referee cannot be accepted in the court of appeals as a substitute for a case.

Special Proceedings, &c.

119. 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, and is appealable. 120. An order granting or refusing a provisional remedy is not a special proceeding, and is not appealable.

12. An order requiring a person, not a party to the judgment, to pay such judgment, &c., is a summary application after judgment, and is appealable.

122. The writ of certiorari is a special proceeding, and a final order quashing the writ can be appealed to the court of appeals, where it affects a substantial right; but otherwise, if the matter rests in the discretion of the court from which it issued.

123. A summary application after judgment is based upon or concedes the validity of the judgment, and an appeal from an order to set aside the judgment for irregularity, or as a matter of favor, cannot be allowed.

124. An order denying an application for admission to practice as an attorney and counsellor at law is appealable as a special proceeding.

125. An order setting aside a satisfaction of a judgment for costs is an order made upon a summary application after judgment, and is appealable.

126. An order denying a motion to set aside a judgment upon an award of arbitrators is neither a summary application in an action nor a special proceeding, and is not appealable. 127. The act of 1859 made the provisions of the Code in relation to appeals to the court of appeals applicable to judgments upon mandamus.

128. Where the supreme court reverses the decree of a surrogate, and makes a final determination of the controversy, the order is appealable.

129. An order of the supreme court granting a new trial upon a certiorari, before judgment, in a criminal case, on exceptions taken on the trial, is not reviewable in the court of appeals, on behalf of the people, by writ of error; it is only from judgments against the defendant that the writ of error will lie.

Appeals from Marine and Justice's Courts.

130. Appeals to the court of appeals from judgments of the N. Y. Common Pleas, in actions originally commenced in the justice's or marine court, will only be granted where the cases involve great interests or settle principles of law affecting the decisions of numerous other cases;

131. Nor where the question decided by the common pleas relates only to the practice in those courts, under the provisions of the district court act, and a case involving the same question has been previously permitted to be taken to the court of appeals.

For the subject of appeals generally in other courts see section 349, post.

§ 12. May reverse, affirm or modify judgment or order appealed from.

The court of appeals may reverse, affirm or modify the judgment or order appealed from, in whole or in part, and as to any or all of the parties; and its judgment shall be remitted to the court below, to be enforced according to law.

This section was amended in 1849 as it now now stands.

How did this section read in 1848?

12. [1848.] The court of appeals may reverse, affirm or modify the judgment or order appealed from; and its judgment shall be remitted to the court below, to be enforced according to law.

Questions.

1. Question. What jurisdiction has the court of appeals in reference to parties?

2. Q. When will the court refuse to reverse a judgment, on demurrer, for a defect in the pleading demurred to?

3. Q. Can any part of a decree, not appealed from, be reviewed?

4. Q. Did the seventh rule of this court apply to appeals pending when it was adopted?

5. Q. When is it proper to send down a remittitur from this court?

6. Q. When the remittitur is filed in the court below, has this court any further jurisdiction of the cause?

7. Q. Does jurisdiction remain in this court until the actual filing of the remittitur, and can any control over a cause be exercised after the filing?"

8. Q. What costs are allowed on dismissal of appeal, after argument on the merits?

9. Q. When does the respondent waive the objection that the return was not made in time?

10. Q. When will omissions in the return be allowed to be supplied?

11. Q. What interest is allowed on the judgment, on sending down the remittitur ? 12. Q. What judgment must be rendered by the court below, on filing a remittitur from the court of appeals?

1. Q. What jurisdiction has the court of appeals in reference to parties?

A. In Hastings agt. McKinley, 8 How., 175, Court of Appeals, June, 1853, JOHNSON, J., it was decided that when this court obtains jurisdiction of a cause, and possession of the case, they possess all such powers as are necessary to render that jurisdiction effectual. Among such powers is that of determining what parties ought to be before the court, and in case of any defect in that respect arising after jurisdiction acquired, of remedying that defect.

In Geraud agt. Stagg, 10 How., 373, General Term N. Y. Common Pleas, January, 1855, WOODRUFF, J., it was decided, that it may also reverse a judgment as to one defendant, and suffer it to stand against another defendant, who does not appeal, in cases in which a several judgment against the defendant not appealing would have been proper in the court below; and this applies now to actions of tort.

"Per contra." Farrell agt. Calkins, 10 Barb., 353, January, 1851, MASON, J.

2. Q. When will the court refuse to reverse a judgment on demurrer for a defect in the » pleading demurred to?

A. In McCormick agt. Pickering, 4 Comst., 276, December, 1850, RUGGLES, J., it was decided, that this court will not reverse a judgment rendered on a decision overruling a

demurrer, where the defect in the pleading demurred to was formal and technical merely, and should have been amended by the court below.

3. Q. Can any part of a decree not appealed from be reviewed?

A. In Kelsey agt. Western, 2 Comst., 505, October, 1849, JEWETT, J., it was decided, that this court can only review those parts of a decree from which an appeal is taken.

4. Q. Did the 7th rule of this court apply to appeals pending when it was adopted?

A. In Dresser agt. Brooks, 4 How., 207, Court of Appeals, January, 1850, BRONSON, J., it was decided, that the 7th rule of this court applied to appeals which were pending when the rule was adopted and took effect.

5. Q. When is it proper to send down a remittitur from this court?

A. In 4 How., 184, and in Dresser agt. Brooks, 4 How., 208, Court of Appeals, January, 1850, BRONSON, J., it was decided that the dismissal of an appeal by this court, is such a judgment of the court as authorizes a remittitur of the proceedings to the court below. Whenever a return has been filed a remttitur is proper whenever any order is made which finally disposes of the appeal, although it may not be an order on the merits.

In Dresser agt. Brooks, 4 How., 208, Court of Appeals, January, 1850, BRONSON, J., it was decided that where an appeal is taken from a judgment and an order, and the appeal is dismissed so far as relates to the order only, it is irregular to take a remittitur which sends back the judgment as well as the order.

In Thompson agt. Blanchard, 4 How., 211, Court of Appeals, January, 1850, BRONSON, J., it was decided that, where there has been no return nor remittitur, an order vacating an order dismissing the appeal (under rule 2) will leave the parties in the same position as though the order had never been entered. A remittitur cannot be made on the dismissal of an appeal under rule 2, for the reason that no return has been filed. The omission to file the return is the ground for dismissing the appeal.

6. Q. When the remittitur is filed in the court below, has this court any further jurisdiction in the cause?

A. In Frazer agt. Western, 3 How., 235, Court of Appeals, April, 1848, JEWETT, J. Dresser agt. Brooks, 4 How., 208, Court of Appeals, September, 1848, BRONSON, J.; Mar tin agt. Wilson, 1 Comst., 240, April, 1848; Burkle agt. Luce, 1 Comst., 240, 3 How., 236, April, 1848; Newton agt. Harris, 8 Barb., 306, Special Term, April, 1850, WELLES, J.; and in Latson agt. Wallace, 9 How., 335, Court of Appeals, June, 1854, PARKER, J., it was decided that, where the remittitur has regularly gone to the court below, and there been filed, the court has no jurisdiction of the cause.

7 Q. Does jurisdiction remain in this court until the actual filing of the remittitur, and can any control over a cause be exercised after the filing?

4. In Newton agt. Harris, 8 Barb., 306, Special Term, April, 1850, WELLES, J., it was decided that, where an order dismissing an appeal is irregularly entered, or entered upon a false or garbled affidavit, and the remittitur is sent down and filed in the court below, this court is not deprived of jurisdiction or power to set aside or vacate the order,

on motion.

In Palmer agt. Lawrence, 1 Seld., 455, December, 1851, it was decided by THE COURT that this court have power to correct their own decree or judyment, entered wrong by mistake, although the remittitur has been sent to the court below and actually filed there. The remittitur in such case is not regularly sent to the court below.

In Latson agt. Wallace, 9 How., 335, Court of Appeals, June, 1854, PARKER, J., it was decided that, where, under the 17th rule of this court, requiring a delay of ten days after service of notice of the default before the sending out of the remittitur, the appellant does not avail himself of the time thus given, and the remittitur is sent to and filed in the court below, this court has no further control over the cause.

In Judson agt. Gray, 17 How., 292, Court of Appeals, March, 1859, MASON, J., it was decided that, where the remittitur is properly issued by this court, and delivered to the prevailing party, with a view to have it remitted to and filed in the court below, and the party improperly withholds it from being filed, the latter court has jurisdiction of the cause, and, if a new trial has been ordered, may go on and try the cause, although the remittitur has not been actually filed.

In Secord agt. Morgan, 17 How., 397, General Term, May, 1859, BROWN, J., it was decided, that the judgment of this court must be, not only remitted to the court below, but must be brought formally to the notice of the court below and be made one of its judg ments; and until the court below makes an order to that effect, and the judgment of this court becomes incorporated in its own records, no proceedings can be taken to enforce the judgment of the court below. (See also Reporter's foot note to this case.)

In Chautauqua County Bank agt. White, 23 N. Y. R., 347, June, 1861, DAVIES, J., it was decided, that where the remittitur has been properly issued by this court and has not been filed in the court below, and no order for judgment has there been entered, and proceedings to enforce the judgment of this court, have nevertheless, been instituted

in the court below, the latter court may order the remittitur filed and the order for judgment entered nunc pro tunc.

8. Q. What costs are allowed on dismissal of appeal after argument on the merits?

4. In Webb agt. Norton, and others, 10 How., 120, Special Term, October, 1854, WELLES, J., it was decided, that where this court dismisses an appeal with costs after argument on the merits, the court below is bound to suppose they intendea the genera costs to be tared, and to allow the same.

9. Q. When does the respondent waive the objection that the return was not made in time? A. In Beecher agt. Conradt, 11 How., 182, Court of Appeals, March, 1855, DEAN, J., it was decided that the respondent cannot object that the return on appeal was not made in twenty days under the rule, where he neglects to avail himself of the rule until after the return has been made; and especially if he has before that time noticed the cause for argument.

10. Q. When will omissions in the return of be allowed to be supplied?

A. In Beecher agt. Conradt, 11 How., 182, Court of Appeals, March, 1855, DEAN, J., it was decided, that a motion by respondent to dismiss an appeal for omissions in the return and copies of the case, will be denied, where the omissions are such as the court would allow the appellant to supply on motion; especially so, where the respondent. delays two years in making his motion.

11. Q. What interest is allowed on the judgment on sending down the remittitur ?

A. In Hoard agt. Garner, 4 Sandf., 677, General Term, November, 1851, OAKLEY, J., it was decided that the formula used in remittiturs on affirming judgments and decrees, of the courts below of allowing interest as damages caused by the vexation and delay of bringing the appeal, does not authorize double interest on the judgments or decrees affirmed; but interest thereon only once computed.

12. Q. What judgment must be rendered by the court below on filing a remittitur from the court of appeals!

A. In McGregor agt. Buell, 17 Abb., 31, General Term, March, 1862, MILLER. J., it was decided, that upon the application for judgment upon a remittitur, after an appeal has been decided by the court of appeals, the party in whose favor the judgment is given applies to the court from which the appeal was taken for an order that the decision or judgment of the court above shall be and become the decision and judgment of the court below; and the only power vested in the inferior tribunal, is to adjudge that the judgment of the court of appeals be enforced as provided by the Code. Beyond this there is no jurisdiction. Therefore, where on an appeal from the decision of a surrogate, the decision is affirmed by the supreme court, and on an appeal to the court of appeals the decision of the supreme court is reversed" without costs," no costs can be allowed the appellant in either court.

In Griswold agt. Haven, 26 Hov., 170, General Term, November, 1863, INGRAHAM, J., it was decided that where a cause has been tried at the circuit, and a verdict and judg ment rendered for the plaintiff'; and from that judgment the defendants' appeal to the general term, and obtain an order for a new trial; and from that order the plaintiff appeals to the court of appeals; which court make an order reversing the judgment of the general term, and directing judgment to be entered on the verdict; and, thereupon, on filing the remittitur, an order is entered in the court below making the judgment of the court of appeals the judgment of the court below; the court below have no authority to go behind that judgment and inquire into its regularity. If, as the defendants' insist, the verdict was subject to an adjustment, and that adjustment had not taken place, they should have applied to the court of appeals to correct it when the cause was in that court. An error, that the amount of the judgment exceeded the amount of the verdiet and interest, could be corrected on special motion in the court below.

In Jareis agt. Shaw, 16 Abb., 416, N. Y. Superior Court, Special Term, December, 1863, BARBOUR, J., it was decided that after an appeal to the court of appeals has been determined, the court below will not order the filing of the remittitur to be stayed, upon affidavit that the applicant intends to apply for a reargument in the former court, and showing grounds therefor. The court below has no legal right to omit or delay the entry of a remittitur, unless upon the application of the appellate court itself, or of one of its judges, acting in its behalf, or something equivalent to that. And where a judge of the appellate court grants an order that the adverse party show cause why a reargument should not be had, and directing that in the mean time the remittitur be stayed if it had not been sent down, the court below may properly order that the filing of the remittitur be stayed pending the application to the appellate court, even though the remittitur had been sent down when the order to show cause was made.

In Ratzkey agt. The People, 28 How., 112, Court of Appeals, June, 1864, DENIO, Ch. J., it was decided, that where a prisoner on trial for murder, is found guilty, and before sentence, the legislature pass an act which in effect declares that when an erroneous judg ment is given in a court of original criminal jurisdiction, the supreme court may on error,