§ 1339. When a case to be prepared, etc., for the appeal. Where 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. by L. 1895, ch. 946.)

Derivation. Parts of sections 333 and 265 of the Code of Proc.

References.- Cases and points to be printed, Rules of Court of Appeals, No. 5; as to manner of printing, Code Civ. Proc., § 796; appellant to serve copies of case, Rules of Court of Appeals, No. 6; copies of case and points to be furnished, and copies of points to be served, Rules of Court of Appeals, No. 7.

Preparation of case.- People V. Featherly, 131 N. Y. 597.

Effect of failure to state facts, etc. -Jacox v. Cameron, 49 N. Y. 645; Reinmiller v. Skidmore, 59 N. Y. 661; Evarts V. Kiehl, 102 N. Y. 296; Cowenhoven v. Ball, 118 N. Y. 231; South Bay Co. v. Howey, 190 N. Y. 240, revg. 113 App. Div. 382, 98 N. Y. Supp. 909.

§ 1339-a. Cancellation of undertaking on appeal from judgment of reversal by appellate division.

If an appeal be taken to the court of appeals from a judgment of reversal of the appellate division, the court of appeals, on motion, may cancel an undertaking given on appeal to the appellate division and release the surety thereon, if satisfied that, on the appeal to the court of appeals, no part of the judgment, so reversed, can be reinstated. (Added by L. 1919, ch. 276, in effect Sept. 1, 1919.)

Sec. 1340.

1341.

1342. 1343.

1344.

1345.

TITLE III.

Appeal to the supreme court from an inferior court.

Appeals from inferior courts.

Limitation of time; security.

Appeal from order.

Limitation of time and stay of proceedings.

Appeal, where and how heard.

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, an 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. by L. 1888, ch. 507; L. 1895, ch. 946.)

Derivation.- Code of Proc., § 344, first sentence.

References.-Appeals from a judgment of the city court of New York, see Code Civ. Proc., § 3188; appeals from municipal court of the city of New York, see N. Y. Munic. Court Code, §§ 154-163.

Appeals from county court.Hewitt v. Ballard, 16 App. Div. 466, 44 N. Y. Supp. 935; People ex rel. Kirkpatrick v. Crowley, 21 App. Div. 189, 47 N. Y. Supp. 505; Russ v. Maxwell, 94 App. Div. 107, 87 N. Y. Supp. 1077; Kilts v. Neahr, 101 App. Div. 317. 91 N. Y. Supp. 945; Fox v. Fox, 128 App. Div. 876, 113 N. Y. Supp. 121: Stebbins v. Cowles, 30 Hun 523; Myers v. Riley, 36 Hun 20; Prior v. Prior, 41 Hun 613; Clark v. Eldred, 54 Hun 5, 7 N. Y. Supp. 95;

Tucker v. Pfau, 70 Hun 59, 23 N. Y. Supp. 953; Wright v. Chase, 77 Hun 90, 28 N. Y. Supp. 310; Bantleon v. Meier, 81 Hun 162, 30 N. Y. Supp. 706; Weaver v. Brydges, 85 Hun 503, 33 N. Y. Supp. 132; Carpenter v. Miles, 92 Hun 51, 36 N. Y. Supp. 383.

From surrogates' courts. Kingsland v. Murray, 133 N. Y. 170; Matter of Tilden's Will, 56 App. Div. 277, 67 N. Y. Supp. 879; Matter of Slingerland, 36 Hun 575.

From municipal courts.- Boechat v. Brown, 9 App. Div. 369, 41 N. Y. Supp. 467; Clapp v. Sternglanz, 23 Misc. 641, 52 N. Y. Supp. 156; Westrum v. Cranides, 90 Misc. 610, 153 N. Y. Supp. 677.

From city court of New York.Bimboni v. McCormick, 157 N. Y. Supp. 299.

§ 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 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.

Derivation.- Code of Proc., § 345, and part of § 331, as amended by L. 1876, ch. 431.

References.-As to limitation of time of appeal to appellate division, Code Civ. Proc., § 1351; security may be waived. Id., § 1305: deposit in lieu of undertaking, Id., § 1306;

limit of amount, Id., § 1312; justification of sureties, Id., § 1335. Application.-Angevine v. Fleischman, 55 App. Div. 106, 67 N. Y. Supp. 182.

Stay. Mirick v. Hill, 30 N. Y. Supp. 853; Bimboni v. McCormick, 157 N. Y. Supp. 299.

§ 1342. Appeal from order.

An appeal may also be taken, as provided by section 1340, 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 said section. (Am. by L. 1881, ch. 135; L. 1895, ch. 946; L. 1907, ch. 579.)

Derivation.- Code of Proc., § 344, in part.

Orders affecting substantial rights. -King v. Sullivan, 31 App. Div. 553, 52 N. Y. Supp. 160; Matter of McArdle, 30 Hun 465; Kugelman v. Rhodes, 36 Hun 269; Cramer v. Lovejoy. 41 Hun 581; Thomas v. Keeler, 52 Hun 318, 5 N. Y. Supp. 359; Clark v. Elred, 54 Hun 5, 7 N. Y. Supp. 95; Weaver v. Brydges, 85 Hun 503, 33 N. Y. Supp. 132; Crouse v. Whipple, 34 How. Pr. 333; Billington v. Billington, 4 N. Y. Supp. 504; Wollung v. Aiken, 6 N. Y. Supp. 331, 17 Civ. Proc. Rep. 318; Filon v. Durkin, 16 N. Y. Supp. 217.

V.

Order granting or denying new trial. Reilly v. D. & H. C. Co., 102 N. Y. 383; Callahan Munson Steamship Line, 141 App. Div. 791, 126 N. Y. Supp. 538; Hinman v. Stillwell, 34 Hun 178; Myers v. Riley, 36 Hun 22; Thomas v. Keller, 52 Hun 318, 5 N. Y. Supp. 359; Young Hone, 77 Hun 395, 28 N. Y. Supp. 881; Chesley v. Hughes, 83 Hun 357, 31 N. Y. Supp. 1036; McKeever v. Weyer, 11 Wkly. Dig. 258.

V.

Justice's court. Ithaca Agr. Works v. Eggleston, 107 N. Y. 272.

City court of New York.- Blake V. Bolte, 12 Misc. 405, 33 N. Y. Supp. 617; Kubie v. Miller Bros. & Co., 31 Misc. 460, 64 N. Y. Supp. 448.

§ 1343. Limitation of time and stay of proceedings.

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. (Am. by L. 1877, ch. 416.)

Derivation.- Code of Proc., § 331,

as amended by L. 1876, ch. 431 and 350, in part.

§ 1344. Appeal, where and how heard; appellate term of the supreme court for the first and second departments.

1. An appeal taken as prescribed in this title must be heard by the appellate division of the supreme court, except that appeals from judgments or orders of the municipal court of the city of New York, or from judgments or orders of the city court of the city of New York may be heard either by the appellate division of the supreme court or by not less than three justices of the supreme court in each of the first and second judicial departments, who shall be designated for that purpose by the justices of the appellate division sitting in said departments and who shall be known as the appellate term of the supreme court in the first and second departments, respectively.

2. When an appeal shall have been heard and determined by an appellate term constituted as herein provided, the justices thereof or a justice of the appellate division in the same department may allow a further appeal to be taken from that determination to said appellate division.

3. Appeals from inferior courts heretofore heard by the superior court of Buffalo shall be heard by the appellate division of the supreme court in the fourth judicial department or by such justice or justices of the supreme court as may be designated for that purpose by the justices of the appellate division of said department.

4. The provisions of title fourth of this chapter, relating to the hearing of appeals taken in the supreme court and to subsequent proceedings thereupon, apply to an appeal taken as prescribed in this title, except as specified in the next following section and except as

otherwise provided in a statute enacted by the legislature in the year nineteen hundred and fifteen, entitled “An act in relation to the municipal court of the city of New York, and repealing certain statutes affecting such court, its justices and officers." (Am. by L. 1895, ch. 946; L. 1902, ch. 515; L. 1914, ch. 349; L. 1915, ch. 623.)

Derivation.- Code of Proc., § 346. References.- Appeals from city court of New York, see Code Civ. Proc., §§ 3188-3195; application for leave to appeal to appellate division from appellate term, Appellate Term Rules, 1st Dist. No. 7. The N. Y. City Municipal Court Code (L. 1915, ch. 580), referred to in Subd. 4. is included herein, immediately after the Code. As to appeals to appellate terms from such court see Municipal Court Code, §§ 154-163.

Power of appellate term.- Lynch v. Sauer, 16 Misc. 362, 38 N. Y. Supp. 1; Boyd v. Milone, 24 Misc. 734, 53 N. Y. Supp. 785; Streep V. McLoughlin, 36 Misc. 165, 72 N. Y. Supp. 1061; Strauss v. Welsbach Gas Lamp Co., 42 Misc. 184, 85 N. Y. Supp. 367; Mosler Safe Co. V. Brenner, 100 Misc. 107, 165 N. Y. Supp. 336;

Jacobson v. Buckley, 74 N. Y. Supp. 888.

Leave to appeal from appellate term.- Lessler v. Lawyers' Surety Co., 50 App. Div. 181, 63 N. Y. Supp. 804; Jaeger v. Koenig, 67 App. Div. 552, 73 N. Y. Supp. 907; Harrison v. Weir, 71 App. Div. 248, 75 N. Y. Supp. 909; s. C., 68 App. Div. 25, 73 N. Y. Supp. 1119; Webster v. Abbott, Misc. 309, 125 N. Y. Supp. 635. Second appeal from appellate term. Handy v. Butler, 183 App. Div. 359, 169 N. Y. Supp. 770.

69

§ 1345. Judgment or order, where entered.

A judgment or order of the appellate division rendered upon an appeal authorized by this title must be entered in the office of the clerk of the appellate division in the department in which the court below is located. A certified copy thereof annexed to the papers transmitted from the court below must be transmitted by the clerk, upon payment of his fees, to the clerk of the county where the court from which the appeal was taken is situated, and shall constitute the judgment-roll and remain in his office. The filing of the judgment-roll or the entry of the order, as prescribed in this section, is a sufficient authority for any proceeding in the court below or before the judge or justice who made the order appealed from which the judgment or order of the appellate court directs or permits. But where the execution of the judgment or order of the appellate court is stayed by an appeal to the court of appeals, the proceedings in the court below or before the judge or justice, who made the order, are stayed in like manner. A judgment or order of the supreme court, rendered upon an appeal from a judgment of any district court or of the city court of New York, or an appeal heretofore heard by the superior court of Buffalo, must be entered in the office of the clerk of the county wherein the court below is located, and with the papers transmitted from the court below, forms the judgment-roll which must be filed in the same office. Where the appeal is from the city court of New York, the judgment or order of the supreme court must be entered in the office of the clerk of the said court. Where the appeal is from a county court, the judgment must be entered by and filed in the office of the clerk of the county wherein the court below is located. (Am. by L. 1895, ch. 946; L. 1916, ch. 84.)

Derivation.-Code of Proc., § 347. References.- Entry of judgments generally, Code Civ. Proc., $8 1231, 1236; transcripts of docket of judgment, Id., § 1247; filing and contents of judgment-roll, Id., §§ 1237-1239.

484

In general.- Wild v. Erie R. R. Co., 171 App. Div. 253. 157 N. Y. Supp. 173; Wadley v. Davis, 38 Hun 186; Short v. Scutt. 57 N. Y. Supp. 393; Ruslander v. Fidelity & Deposit Co. of Maryland, 161 N. Y. Supp. 417.

Sec. 1346.

1347.

TITLE IV.

Appeal to the appellate division of the supreme court.

1348.

1349. 1350.

1351.

1352.

Appeal from judgment.

Appeal from order.

Id.; when made out of court; powers of appellate division to grant orders.

Appeal from interlocutory judgment.

Appeal from final judgment, after affirmance of interlocutory
judgment, or denial of new trial. Review in the court of
appeals.

Limitation of time; order to stay proceedings.
Stay of proceedings without order.

1353. Upon what papers appeal to be heard.

1354. 1355.

Entry of judgment or order; judgment-roll.
Hearing, etc., in the supreme court.

§ 1346. Appeal from judgment.

An appeal may be taken to the appellate division of the supreme court from a final judgment rendered in the supreme court as follows: 1. Where the judgment was rendered upon a trial by a referee, or by the court without a jury, the appeal may be taken upon questions of law, or upon the facts, or upon both.

2. When the judgment was rendered upon the verdict of a jury, the appeal may be taken upon questions of law, or upon the facts, or upon both. (Am. by L. 1895, ch. 946; L. 1914, ch. 351.)

Derivation.- Code of Proc., § 348, in part.

Construction.- Middleton v. Whitebridge, 213 N. Y. 499.

Application.- Mosler Safe Co. V. Brenner, 100 Misc. 107, 165 N. Y. Supp. 336; Denise v. Denise, 41 Hun 9; Hatch v. Stewart, 42 Hun 164.

No appeal from "decision."-Tisdale v. Moore, 146 App. Div. 561, 131 N. Y. Supp. 141.

Pinal judgment.- Matter of Kreischer's Est., 30 App. Div. 313, 51 N. Y. Supp. 802; Pangburn v. Buick Motor Co., 151 App. Div. 756, 137 N. Y. Supp. 37, revd., 211 N. Y. 228; Pichel v. Pichel, 27 Misc. 798, 58 N. Y. Supp. 335; Garczynski v. Russell, 75 Hun 512, 27 N. Y. Supp. 461.

Where trial was by court or referee.- Lowery v. Erskine, 113 N. Y. 52; Healy v. Clark, 120 N. Y. 642; Smith v. Smith, 216 N. Y. 495; Hatch v. Spooner, 1 App. Div. 408, 37 N. Y. Supp. 295; Clements V. Beale, 53 App. Div. 416, 65 N. Y. Supp. 1093; Ten Eyck v. Whitbeck. 55 App. Div. 165, 66 N. Y. Supp. 921; Lessler v. De Loynes, 150 App. Div. 868, 135 N. Y. Supp. 948; Dann v. Palmer, 151

§ 1347. Appeal from order.

App. Div. 151, 135 N. Y. Supp. 411.

Appeal from judgment on verdict.Pharis v. Gere, 112 N. Y. 408; Voisin v. Commerce Mut. Ins. Co., 123 N. Y. 120; Collier v. Collins, 172 N. Y. 99; Volkommer v. Cody, 177 N. Y. 123; Alden v. Knights of Maccabees, 178 N. Y. 535. revg. 78 App. Div. 18, 79 N. Y. Supp. 89; Francisco v. Mayor, etc., 24 App. Div. 22, 48 N. Y. Supp. 911; Wood v. Fiske, 175 App. Div. 135, 161 N. Y. Supp. 1097.

From judgment dismissing complaint. Rollins V. Bowman Cycle Co., 96 App. Div. 365, 89 N. Y. Supp. 289; Jones v. Sabin. 122 App. Div. 666, 107 N. Y. Supp. 508; Engineer Co. v. Herring-Hall-Marvin Safe Co., 154 App. Div. 123, 138 N. Y. Supp. 881; Hirsch v. Lichtenstein, 79 Misc. 31, 139 N. Y. Supp. 4.

From judgment upon pleadings.Mitchell v. Dunmore Realty Co., 135 App. Div. 583, 120 N. Y. Supp. 771.

Orders supporting judgment.Metzler v. Fidelity & Deposit Co., 183 App. Div. 476, 171 N. Y. Supp. 77.

Subsequent appeal from order denying new trial. Hein v. Hein, 148 App. Div. 247. 132 N. Y. Supp. 111.

An appeal may be taken, to the appellate division of the supreme court, from an order, made prior to the first day of January, one thousand eight hundred and ninety-six, in an action upon notice, at a special term or a trial term of a superior city court, or of the supreme court, or at a term of the circuit court, and from an order made at a special term or trial term of the supreme court, after said day, in either of the following cases:

1. Where the order grants, refuses, continues, or modifies a provisional remedy; or settles, or grants, or refuses an application to resettle a case on appeal or a bill of exceptions.