appeals in general shall be made; and the giving of security is no part of the requisition. That is required in certain classes of appeals by distinct sections. We think there is no occasion for extending the giving of security, to appeals from an order made by a single justice, and that a true interpretation of the Code does not require it."

In Stone v. Carlan, 2 Sandf. S. C. R. 738, it is stated by the court, in deciding on another point, that on appeal from an order, not a judgment, "no security is given." Emerson v. Burney, 6 How. 32, 1 C. R. (N. S.) 189, is also authority to the same effect.

The questions which have arisen, as to the extent to which the decisions of the general term on appeals of this nature are reviewable by the court of appeals, and also as to the costs thereon, will be considered hereafter under their proper heads.

The court is bound to hear appeals of this description, provided the orders complained of are of an appealable nature. The party complaining of an order, and asking for a rehearing at the general Term, is entitled to such hearing as a matter of right, and the court cannot deny it. Gracie v. Freeland, 1 Comst. 228; Blair v. Dillage, 3 How. 422. Where, however, the order of special term is not of a nature coming within the provisions of sec. 11, and is, therefore, not reviewable by the court of appeals, the latter tribunal will not interfere, though a rehearing may have been improperly denied.-Marvin v. Seymour, 1 Comst. 535, 1 C. R. 111; 3 How. 340. In the last case, the rehearing of an order, denying an application for a complainant to appear and submit to an examination, was declined to be reviewed by the appellate tribunal, as being a matter resting in the discretion of the court below.

An appeal of this nature is subject to dismissal for want of due prosecution, in the same manner as other proceedings in a cause.Hogan v. Brophy, 2 C. R. 77. Lastly, in Wilson v. Onderdonk, 3 How. 319, 1 C. R. 64, the principle is clearly laid down, that a judge, holding a special term, in a district within which the general Term have decided upon a matter of practice, is bound by that decision, though it be contrary to his own opinion, and to a decision at general Term in another district.

Appeals of this nature are subject to the same incidents in relation to the mode in which they are brought to an actual hearing, as those treated of in the two succeeding chapters, to which, therefore, the reader is referred. It is, however, questionable, as be

fore stated, whether it is absolutely necessary that a printed case should be made out, though the latter is the more usual, and, in cases of any importance, the more advisable practice.

CHAPTER V.
CHAP

OF APPEALS TO THE SUPREME COURT, FROM AN INFERIOR COURT.

THE provision in the Code, by which an appeal of this nature is given, is contained in sec. 344, as follows:

§ 344. An appeal may be taken to the supreme court, from the judgment rendered by a county court, or by the mayors' courts, or the recorders' courts of cities. But no appeal shall be allowed from a judgment of a county court, in a case arising in a justice's court, unless the party desiring to appeal shall, within thirty days after notice of the judgment, present to a judge of the supreme court the return of the justice, or a copy thereof, with the decision of the county court, and obtain from such judge a certificate that he has examined the case, and, in his opinion, an appeal to the supreme court should be allowed.

In cases originating in the county or city courts, the review of the decision is claimable, as a matter of right. In those arising in a justice's court, the right of a second review is, as will be seen, a matter of favor only, resting in the discretion of the court.

The notice of the judgment to be given by the prevailing to the losing party, must, of course, be in writing in these last cases, in order to bind the latter to the thirty days here limited, as the period within which the return must be presented to the judge, and his certificate obtained.

The obtaining of that certificate within the period so prescribed, is imperative, and, if not procured in due time, the appeal will be a nullity, nor will the respondents making a formal motion to dismiss it, be held as waiving the defect.-Seymour v. Judd, 2 Comst. 464. This accords with the principle laid down in the different cases cited in chap. III. of the present book, establishing that the period for taking an appeal, being fixed by statute, cannot be enlarged.

In cases originating in a justice's court, the supreme court cannot entertain an appeal from a judgment of the county court, taken by default. There is, under these circumstances, no decision of that court which can be reviewed. The supreme court, as the ultimate tribunal, " is vested with no authority, except to review and correct the decisions of the county court, actually made, after a hearing of both parties." The only course under such circumstances, will be to apply to the court below for relief, on motion.—Dorr v. Birge, 5 How. 323. The distinction to be drawn between a proceeding of this nature, and one actually commenced in the county court, in the first instance will, of course, not be overlooked.

In Burnett v. Harkness, 4 How. 158, 2 C. R. 100, it was held that no appeal could be taken from the decision of the county court, reversing a justice's judgment and ordering a new trial; agreeably to the principle laid down by the court of appeals, under the Code of 1849.

The security to be given in these cases is, under sec. 345, the same as that on an appeal to the court of appeals. See chap. III. of the present book. The mode of hearing is prescribed by sec. 346. It must take place 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 in NewYork cases, in which the appeal must be heard in the first district. The general course of proceeding preliminary to such hearing, has been already entered upon in the former chapter above referred to. See also remarks in that immediately following the present. The judgment on an appeal of this nature must, under sec. 347, be entered and docketed with the clerk in whose office the original judgment roll has been filed. See, also, Andrews v. Durant, 6 How. 191, and heretofore under the head of Judgments.

Another species of appeal, analogous to the above, though not falling within the scope of the present work, remains to be noticed, viz., the appeal to the supreme court from the decisions of the surrogate. These proceedings are expressly exempted from the operation of the Code by sec. 471, and are, therefore, conducted strictly and entirely under the old practice, the works on which, and particularly those relative to this peculiar jurisdiction, must be referred to. See Sherman v. Youngs, 6 How. 318. The statute law on the subject will be found as follows, viz. :-" That relating to such appeals generally, in art. III. title III. chap. IX. part III. of the

Revised Statutes, sections 90 to 118; 2 R. S. 608 to 611. Those relative to proceedings for admeasurement of dower, at 2 R. S. 491, 492. Those as to cases respecting guardian and ward, at 2 R. S. 152, 153; and those as to the final settlement of an executor's account, at 2 R. S. 95. Special provisions are made as to the practice on these appeals, by rule 82 of the supreme court, which should be carefully referred to, in connection with the works and statutory provisions before mentioned.

It has been recently held, that an appeal from a surrogate's order granting or refusing probate, lies in the first instance to the general, and not to the special term.-Watts v. Aikin, 4 How. 439.

CHAPTER VI.

OF APPEALS FROM JUDGMENTS, TO THE GENERAL TERM OF THE SAME COURT.

THE provision of the Code by which appeals of this nature are governed is contained in sec. 348, and runs as follows:

§ 348. 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, or unless the court, or a judge thereof, so order, which order may be made upon such terms, 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.

In the Code of 1849, appeals from judgments, only lay "upon the law," and no provision was inserted in relation to the review of judgments entered upon the reports of referees. By the amendments of 1851, all limitations whatever in respect of the subject matter of appeals of this nature, were entirely done away with.

By the section, as it now stands on the last amendment, the restrictions of 1849 are restored, as regards cases tried by a jury. An appeal upon the facts may, however, be taken to the general Term, under the combined operation of this provision and of sections 268 and 272, in those tried by the court or referees; in relation to this branch of the questions involved, that appeal will be ultimate, and cannot be carried farther: as regards points of law, however, the reverse is the case, and those points may be carried up to the court of appeals, in all cases.

Morgan v. Bruce, 1 C. R. (N. S.) 364, which held that, under the Code of 1851, no appeal can be taken to the general Term upon the facts, in a case tried before a referee, but only from the referee's decision on those facts, seems to be deprived of its authority by the effect of the last amendment of the section now in question.

Under the Code of 1849, appeals from judgments entered upon the reports of referees were wholly unprovided for, but the principle that, under that measure, such judgments might be appealed from on the law, when the report was on the whole issue, was estabincluding, amongst others, Haight v.

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judge, rendering a special application necessary, in every instance in which a stay was required. The present amendment substantially restores the provisions of 1849, but with this important modification, that, under special circumstances, a stay may be applied for and granted, on any terms which may be imposed by the court in its discretion.

The proper mode of application for this latter purpose will be by motion in the usual form. Though not specifically prescribed, it seems evident that such application should be made to the judge who tried the cause, whenever practicable; in which case, no affi