justice, by attachment, to make and file a return, or a further or amended return. The court is always open for those purposes. Where the justice has removed to another county of the State, the appellate court may compel him to make the return, as if he was still within the county where the judgment was rendered.

Id., 28 362, 363. Flint v. Gault, 15 Hun, 213; Onderdonk v. Ranlett, 3 Hill, 323; Lynsky v. Pendergrast, 2 E. D. Smith, 43; Jones v. Francis, 9 Reporter, 630; Rawson v. Grow, 4 E. D. S. 18; Fairbanks v. Corlies, 3 id. 582; 1 Abb. 150; Smith v. Johnson, 30 How. 374; Baum v. Tarpenny, 3 Hill, 75; Capewell v. Ormsby, 2 E. D. Smith, 180; Bates v. Conkling, 10 Wend. 389; Barber v. Stettheimer, 13 Hun, 198; Althouse v. Rice, 4 E. D. Smith, 347; Matthews v. Fristel, 2 id. 90.

§ 3056. Id.; when justice is dead, etc. If the jus tice dies, becomes a lunatic, absconds, removes from the State, or otherwise becomes unable to make the return, the appellate court may receive affidavits, or examine witnesses, as to the evidence and other proceedings taken, and the judgment rendered, before the jus tice; and may determine the appeal, as if a return had been duly made by the justice.

Id., 363. Bush v. Dennison, 14 How.380.

$3057. Proceedings when error in fact is alleged.— Where an appeal is founded upon an error in fact in the proceedings, not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the matter upon affidavits; or, in its discretion, upon the examination of witnesses; or in both methods.

Id., part of 366. Kasson v. Mills, 8 How. 377; Biglow v. Sanders, 22 Barb. 147; Adsit v. Wilson, 7 How. 64; Hurd v. Beeman, 8 id. 354; Lynch v. McBeth, 7 id. 113; Wavel v. Wiles, 24 N. Y. 635; Cook v. Swift, 10 Abb. 215; Sperry v. Reynolds, 5 Lans, 407; Willins v. Wheeler, 8 Abb. 116; 7 How. 93; 28 Barb. 669; Rose v.Smith, 4 Cow.17; Harvey v. Richett, 15 Johns. 87; Fitch v. Devlin, 15 Barb. 47; Kelly v. Brower, 1 Hilt. 514; Carroll v. Goslin, 2 E. D. S. 76.

§ 3058. Restitution upon reversal. Where the judg ment of the justice is reversed or modified, the appellate court may make or compel restitution of property or of a right, lost by means of the erroneous judgment; but not so as to affect the title of a purchaser, in good faith and for value, of property sold by virtue of a warrant of attachment in the action, or an execution issued upon the judgment. In that case, the appellate court may compel the value, or the purchase-price to be restored, or deposited to abide the event of the action, as justice

requires. Six days' notice of an application for an order for restitution must be given; and, if the application is granted before judgment, the proper direction may be included therein.

Id., 369. Hunt v. Westervelt, 4 E. D. S. 225; Estus v. Baldwin, 9 How. 80; Cushing v. Vanderbilt, 7 Daly, 512; Marvin v. Brewster Iron Mining Co., 56 N. Y. 671.

§3059. Setting off costs and recovery. If, upon the appeal, a sum of money is awarded to one party, and costs are awarded to the adverse party, the appellate court must set off the one against the other, and render judgment for the balance.

Íd., § 370. Johnson v. Farrell, 10 Abb. 384.

§ 3060. Certain sums may be included in disbursements. Where costs are awarded to the appellant, he may include, in the disbursements upon the appeal, the costs and fee paid to the justice upon taking the appeal; and, where the judgment rendered by the justice was against the appellant, he may also include, in those disbursements, the costs of the action, before the justice, which he would have been entitled to recover, if the judgment of the justice had been in his favor.

Id., part of 371.

§ 3061. Judgment-roll. The clerk, immediately after entering final judgment upon the determination of an appeal, must attach together and file such of the following papers, as were used upon the appeal; which constitute the judgment-roll:

1. The return of the justice, or a certified copy thereof; the notice of appeal; and the undertaking, if any has been given.

2. The verdict, report, or decision, and each offer, if any, made as prescribed in article third of this title.

3. A certified copy of the judgment, together with each notice of exceptions, or case, which is then on file.

4. Every other paper, then on file, and a certified copy of every order, which in any way involves the merits, or necessarily affects the judgment.

Td. 367.

ARTICLE SECOND.

APPEAL WHERE A NEW TRIAL IS NOT HAD IN THE APPEL LATE COURT.

SEC. 3062. Hearing of appeal; dismissal thereof

3063. Judgment.

3064. When new trial in Justice's court may be directed.

3065. Id.; proceedings before justice..

3066. Costs: when awarded.

3067. Amount of costs.

§ 3062. [Amended, 1883.] If the case is one where the appellant is not entitled to, or has not demanded, a new trial in the appellate court, as provided in section 3068 of this act, the respondent may, within twenty days of the service on him of the notice of appeal, serve upon the appellant or bis attorney a written stipulation that the judgment appealed from may be reversed with five dollars costs and disbursements of the appeal, and thereafter no further steps shall be taken in such appeal, except to enter judgment in pursuance of such stipulation for the enforcement thereof; in case such stipulation shall not be so served, the appeal may be brought to a hearing in the appellate court at any term thereof (at which such an appeal can be heard, held after the return is filed, upon a notice by either party of not less than eight days. It must be placed upon the calendar, and must continue thereupon without further notice until it is finally disposed of. If, after being regularly placed upon the calendar, neither party brings it to a hearing before the end of the second term thereafter at which it might be noticed for hearing and heard, the court must dismiss the appeal unless it directs the same to be continued for cause shown. If the appeal is to the superior court of Buffalo it must be heard at a general term thereof

Code of Proc., 8 364. Beardsley v. Bowker, 6 Week. Dig. 341: Jones v. Holmes, 5 Hun, 339; Matthews v. Arnold, 14 id, 376; Sheldon v. Albro, 8 How. 305; Davis v. Store, 16 id. 538.

S3063. Judgment. In a case specified in the last section, the appeal must be heard upon the original papers, or a certified copy thereof; and a copy or copies thereof need not be furnished for the use of the court. The appellate court must render judgment according to the justice of the case, without regard to technical errors or defects, which do not affect the merits. It may affirm or reverse the judgment of the justice, in whole or in part, and as to any or all of the parties, and for errors of law or of fact.

Id., 22 365 and 366. Woodside v. Pender, 2 E. D. S. 390; Story v. Bishop. 4 id. 423; Roe v. Hanson, 5 Lans. 304; Meech v. Brown, I Hilt. 257; Whitney v. Bayard, 2 Sandf. 634; Adams v. Kearny, 2 E. D. S. 42; Cop pernoll v. Ketcham, 56 Barb. 111; Schoonmaker v. Spencer, 54 N. Y. 366: Baum v. Tarpenny, 3 Hill, 75; Warring v. Loomis, 4 Barb. 484; Clements

v. Benjamin, 12 Johns. 299; Stafford v. Williams, 4 Den, 182; Bellows v. Sackett, 15 Barb. 96; Rue v. Perry, 63 id. 40; Osincup v. Nichols, 49 id, 145; Wells v. Cone, 55 id. 585; Onderdonk v. Emmons, 2 Hilt. 504; Tryon v. Jennings, 12 Abb. 33; 22 How. 421; Teaz v. Christie, 2 Abb. 259; Drucker v. Patterson, 2 Hilt. 135: Fields v. Moul, 15 Abb. 6; Kasson v. Mills, 8 How. 377; Brownell v. Winnie, 29 id. 193; 29 N. Y. 400; Shaw v. Davis, 55 Barb. 389; Van Slyck v. Snell, 6 Lans. 299. Proceedings on ap peal.-Angell v. Cook, 2 T. & C. 175; Ackley v. Tarbox, 31 N. Y. 564; Norris v. Bleakley, 3 Abb. 107; Glossner v. Wheaton, 2 E. D. Smith, 352; La Motte v. Archer, 4 id. 46; Weed v. Lee, 50 Barb. 354; Fanning. Dent, 3 E. D. S. 206; Hardy v. Seelye, 3 Abb. 103; 1 Hilt. 90; Edwards r. Drew, 2 E. D. Smith, 55; Staats v. Hudson R. R. R. Co., 39 Barb. 298: 23 How. 463: Decker v. Hassell, 26 id. 528; Brownell v. Winne, 22 N. Y. 400; Anonymous, 9 Wend. 503; Blin v. Campbell, 14 Johns. 432; Onderdonk v. Ranlett, 3 Hill, 323; Ellert v. Kelly, 4 E. D. S. 12; 10 How. 392. What questions may be reviewed on appeal.-Wood v. Randall, 5 Hill, 264; Stephens v. Baird, 9 Cow. 274; Desmond v. Rice, 1 Hilt. 530; Willard v. Bridge, 4 Barb. 361; Austin v. Burns, 16 id. 643; Rue v. Berry, 41 How. 385; Avery v. Leach, 9 Hun, 106; Smith v. Hill, 22 Barb. 656; Fulton v. Heaton, 1 id. 552; Lee v. Schmidt, 1 Hilt, 537; 6 Abb. 183; Austin v. Burns, 16 Barb. 643; Andrews v. Harrington, 19 id. 343; Pruyn v. Tyler, 18 How. 331; Risedorph v. Ingalls, 6 Week. Dig. 340; Eldridge v. McNulty, 45 How. 400 Neff v. Clute, 12 Barb. 446; Hall v. McKechnie, 22 id. 244; Mayor v. Green, 1 Abb. 344; Copely v. Rose, 2 N.Y. 115; Howe Sewing Machine Co. v. Haupt, 7 Daly, 108: Castree v. Gavelle, 4 E. D. S. 425 Neff v. Clute, 12 Barb. 466; Tifft v. Tifft, 4 Den, 175; Young v. Rummell, 5 Hill, 60; Mayor v. Green, 1 Hilt. 393; Bloodgood v. Overseers of Poor, 12 Johns. 285; Andrews v. Thorp, 1 E. D. S. 615: Miln v. Russell, 3 id. 303; Gosling v. Broach, id. 49 Avogadro v. Bull, 4 id. 384; Andrews v. Harrington, 19 Barb. 343: Aldrich v. Ketcham, 3 E. D. S. 577; People ex rel. Powers, 19 Abb.99. Jurisdiction.-Castree v. Gavelle, 4 E. D. Smith, 425; Felch v. Devlin, 15 Barb. 47; Willins v. Wheeler, 28 id. 669; 17 How. 93; Desmond v. Rice, 1 Hilt. 530; Tiffany v. Gilbert, 4 Barb. 320; Pearson v. Fiske, 7 Abb. 419; Pollock v. Hoag, 4 E. D. S. 473; Seymour v. Bradfield, 35 Barb. 49; Luckey v. Frantzkee, 1 E. D. Smith, 47; Briggs v. Evans, id. 192; Doughty v. Crosier, 9 Abb. 411; Shaw v. Davis, 55 Barb. 389. Proof, etc.-Ranney v. Gwynne, 3 E. D. S. 59; Gehaar v. Ross, 1 Hilt. 117; Whitlock v. Bueno, 1 Hilt. 72; Austin v. Burns, 16- Barb. 643; Carter v. Dallimore, 2 Sandf. 222; Alburtis v. Mc Cready, 2 E. D. Smith, 39; Moore v. Noble, 52 Barb. 425; Everett v. Parks, 62 id. 9; Mayor v. Hyatt, 3 E. D. S. 156; Main v. Eagle, 1 id. 619; Bart v. Smith, 5 Barb. 283; Harper v. Leal, 10 How. 276; Buck v. Water bury, 13 Barb. 116; Decker v. Myers, 31 How. 372; Belden v. Nicolay, 4 E. D. S. 14; Harper v. Leal, 10 How. 276; Crane v. Hardman, 4 E. D. S. 448; Moore v. Somerindyke, 1 Hilt. 199; Wentworth v. Buhler, 3 E. D. Smith, 305; Raymond v. Richardson, 4 id. 171; McAlister v. Sexton, id. 41; Heim v. Wolf, 1 id. 70: Searles v. Cronk, 38 How. 320; Baker v. Bonesteel, 2 Hilt. 397; Burnham v. Butler, 31 N. Y. 480; Alford v. Stevens, 63 Barb. 29; Dempsey v. Paige, 4 E. D. S. 218; Pozzoni v. Henderson, 2 id. 146; Kinney v. Pudney, 6 How, 258; Rogers v. Ackerman, 22 Barb. 134; McLaughlin v. Barnard, 2 E. D. S. 72: Morrill v. Whitehead, 4 id. 239; Parker v. Eaton, 25 Barb. 122; Tibbetts v. Percy, 24 id. 39; Tattersall v. Hoss, 1 Hilt. 56; Walsh v. Cornett, 17 Hun, 27; Doughty v. Crozier, 9 Abb. 411; Loyd v. Fox, 1 E. D. S. 101. Jury, etc.-Pettit v. Ide, 12 Abb. 44; Van Kirk v. Wilds, 11 Barb. 520; Carland. Day, 4 E. D. S. 251; Needles v. Howard, 1 id. 54; Mitchell v. Menkle, 1 Hilt. 142; Harpell v. Curtis, 1 E. D. S. 78; Weed v. Lee, 50 Barb. 354; Burgett v. Edwards, 4 Lans. 193; Althouse v. Rice, 4 E. D. S. 347 Cropsey v. Murphy, 1 Hilt. 126; Cady v. Fairchild, 18 Johns. 129; Stephens v. Wider 32 N. Y 351; Barrick v. Austin, 21 Barb. 241; Lambert v. Seely 17 How 432; Allen v. Stone, 9 Barb. 60; Prentiss v. Sprague, 1 Hilt. 428; Wa v. Davis, 19 Wend. 371; Wiseman v. Panama R. R. Co., Hilt. 300.

§ 3064. When new trial in justice's court ma directed. If the appeal is taken by a defendant, w

give the undertaking required, by this title, to stay the execution of the judgment.

Id., part of 355. Kuntz v. Litz, 8 Hun, 14; Lake v. Kels, 11 Abb. N. S. 37.

§ 3070. [Amended, 1885.] Offer to compromise.— Upon an appeal, provided for in this article, from a judgment for a sum of money only, either party may, within fifteen days after service of the notice of appeal, serve upon the adverse party, or upon his attorney, a written offer to allow judgment to be rendered in the appellate court, in favor of either party, for a specified sum. If the offer is not accepted, it cannot be proved upon the trial. If the party, within ten days after ser. vice of the offer upon him, serves upon the party making the same, or upon his attorney, written notice that he accepts the offer, he must file it, with an affidavit of service of the notice of acceptance, with the clerk of the appellate court, who thereupon must enter judgment accordingly. Where an offer is made as above provided, the party refusing to accept the same shall be liable for costs of the appeal, unless the recovery shall be more favorable to him than the sum offered. If neither party make an offer, as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given, shall be entitled to recover his costs upon the appeal.

See Code of Proc., 371. Wallace v. Patterson, 29 How. Pr. 170; Fox v. Nellis, 25 id. 144; Loomis v. Higbie, 29 id. 232; Loveland v. Atwood, 31 id. 467; Hotchkiss v. Banks, 36 id. 61; Reed v, Moore, 31 id. 264, 369; Myers v. White, 37 id. 393: Forsyth. Ferguson, 27 id. 67; Barnard v. Pearce, 28 id. 232; Gray r. Hannah, 30 id. 155: Putnam u. Heath, 41 id. 262; Bancroft v. Shannon, 42 id. 1; Moran v. McClearns, 43 id. 77; Wyn. koop v. Halbert, 43 Barb, 266; Fults e. Wynn, 2 Lans. 153; Jones v. Cook, 11 Hun, 230: Doran . McLaughlin, 14 id. 628; Vedder v. Van Buren, id. 280; Amsdell . McCaffrey, 16 id. 255; Ponto v. Phelps, 36 How, Pr. 19; Baldwin e. Brown, 37 id, 355; Pike v.Johnson, 47 N. Y. 1: Smith e. Hinds, 30 How. 187: Purvis v. Gray, 39 id. 1; Finney v. Veeder, 45 Barb. 388 Chapin v. Skeels, 20 Hun, 448; Smith v. May, 2 Abb. N. S 227; Humeston v. Ballard, 39 How.93; Pearce v. Northern Central R. R. Co., 5 Week, Dig. 566; Church v. Miller, 46 How. 525.