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a. Restitution.-This provision as to restitution is not imperative, but the court is to exercise its discretion (Coster v. Peters, 7 Rob. 386; Estus v. Baldwin, 9 How. 80). An order or judgment for restitution cannot be had ex parte (Sheridan v. Mann, 5 How. 201). An appeal to the court of appeals, and reversed there, the court below may order restitution (Whitbeck v. Patterson, 22 Barb. 87; Safford v. Stevens, 2 Wend. 164; see Britton v. Phillips, 24 How. 111; and ante, p. 360, and post, § 369). Where restitution is directed by the court of appeals, it is irregular to enter judgment of restitution ex parte (Young v. Brush, 18 Abb. 171). In general, restitution will not be directed unless the remittitur contain such direction (id).

§ 331. (Am'd 1857, 1858.) Time for appealing.

The appeal to the court of appeals, under subdivision two, of section eleven, of this code, must be taken within sixty days after written notice of the order shall have been given to the party appealing; every other appeal allowed by the second and third chapters of this title (§§ 333 to 347), must be taken within two years after the judgment shall be perfected by filing the judg ment-roll.

See § 11, ante, as to time for appealing in cases arising in justice's courts.

¿. When appeal may be taken.-An appeal cannot be taken until after entry of the judgment appealed from (Bradley v. Van Zandt, 3 Code Rep. 217; McMahon v. Harrison, 5 How. 360). But it may be taken at any time, on the same day that the judgment is entered; and in that case the court will not inquire which was the first, the entry of the judgment, or the taking the appeal (Blydenburg v. Cotheal, 5 How. 200; and see Jones v. Porter, 6 How. 286). A stay of proceedings on the judgment does not extend the time to appeal (Renouil v. Harris, 2 Code Rep. 71).

c. The time to appeal to court of appeals from an order at general term, affirming an order denying a motion to set aside a judicial sale, is two years (King v. Platt, 3 Abb. N. S. 174; 34 How. 26).

d. Compelling entry of judgment.-If the party in whose favor judgment is rendered omit to perfect his judgment, the other party may compel him to do so, in order that an appeal may be brought (B'k of Geneva v. Hotchkiss, 5 How. 478; Lentilhon v. Mayor of New York, 1 Code Rep. N. S. 111; Purdy v. Peters, 15 Abb. 160; and see Peet v. Cowenhoven, 14 Abb. 56). See note to § 332, infra.

§ 332. (Am'd 1849.)

Other appeals within thirty days. The appeal allowed by the fourth chapter of this title must be taken within thirty days after written notice of the judgment or order shall have been given to the party appealing.

e. Time to appeal.-From an order entered on May 27, a notice of appeal served on June 27 is in time (Gallt v. Finch, 24 How. 193). Semble, where the notice of the judgment is served by mail, the opposite party has double time to appeal (Dorlon v. Lewis, 7 How. 132).

f. Stay of proceedings.-A stay of plaintiff's proceedings, except entry of judgment, prevents his giving notice of the judgment so as to limit the time to appeal therefrom (White v Klinken, 16 Abb. 109).

g. Waiver of objection.—Giving an admission of due service of a notice of appeal, is a waiver of the objection that it was not served within

the time to appeal (Struver v. Ocean Ins. Co. 9 Abb. 23). Semble, a motion to dismiss an appeal, as not brought in time, may be waived by laches in moving (Stevenson v. McNitt, 27 How. 335).

a. Extending time.-The code prescribes the time within which an appeal may be taken from the special to the general term; and it is not in the power of the court to extend that period, or to allow an appeal where the time has been suffered to expire (Cođe, §§ 332, 405; Wait v. Van Allen, 22 N. Y. 319).

b. It is improper for the court to attempt to effect the same thing, indirectly, by ordering a new date to the judgment (Humphrey v. Chamberlain, 11 N. Y. 274). And the supreme court will not set aside a judgment for the mere purpose of relieving a party from the loss of the remedy by appeal, although from no fault or neglect on his part (Marston v. Johnston, 13 How. 93; and see Fry v. Bennett, 16 id. 385; 7 Ább. 352).

c. Party appealing.-The term "party appealing " means the party in whom is the right to appeal (Beach v. Gregory, 2 Abb. 209).

d. Notice of judgment. This must mean of a judgment so perfected in form that on the very day on which notice is given of its entry, the appellant has on the record a knowledge of all the matters necessary to the perfection of an appeal, and of a stay upon it. One of these matters is the amount of the judgment, and that depends on the amount of the costs. So that while the amount of the costs is kept open [and is uncertain], no notice of the entry of the judgment can be given, which will limit the time for an appeal (Sherman v. Wells, 14 How. 527). Thus, where a party adjusted his costs, and entered judgment, and served notice of the judgment on the 20th February, and afterwards stipulated to resubmit the costs for adjustment, and that any deduction made should be deducted from the judgment,-held that such stipulation was in effect a revocation of the notice of the judgment, and that to limit the time to appeal, a new notice of the judgment should have been given after the readjustment of the costs (id.; Leavy v. Roberts, 8 Abb. 310; and see Bowman v. Earle, 3 Duer, 691), unless after the order is made, or judgment is rendered and entered, or filed and constructively entered, so as to become a part of the record, or minutes of the court, the party has some written notification thereof, by act of the prevailing party or his attorney, his time to appeal continues without limitation. The adverse party may acquire knowledge of the order or judgment; he may examine it on the files of the court, or on its records, and procure a copy of it; but the knowledge so acquired is inoperative to limit his time for appealing (Fry v. Bennett, 16 How. 402; 7 Abb. 352; see Leavy v. Roberts, 8 Abb. 310; The People v. Spaulding, 9 Paige, 607; Gay v. Gay, 10 id. 370; Sherman v. Postley, 45 Barb. 348; Champion v. Plymouth Cong. Soc. 42 Barb. 441).

e. The time to appeal from an order does not commence to run until written notice of the order, after it has been duly entered. A notice of the order before it has been entered will not limit the time to appeal (Gallt v. Finch, 24 How. 193; Staring v. Jones, 13 How. 423). And where an issue of fact is tried by the court without a jury, and a decision rendered thereupon, notice of the decision given by the prevailing party, before the actual entry of the judgment, is not such a notice of the judgment as will limit the time to appeal (Leary v. Roberts, 8 Abb. 310).

f. A party who undertakes to limit the time for appeal must be held to strict practice. A notice of judgment, not signed by the party, or his attorney, and without any place of business indorsed or mentioned, is a nullity, and will not limit the time to appeal (Yorks v. Peck, 17 How. 192); so a notice of judgment is defective where it omits to state the clerk's office in which the judgment is entered, and such a notice does not limit the time to appeal (Valton v. Nat. Loan Fund Ass. Soc. 19 How. 515).

g. In order to limit the right of appeal, a service of a written notice on the party is necessary, even where the appeal is from a judgment or order entered by the appellant himself (Rankin v. Pine, 4 Abb. 309-general term, second district). Thus, where the cause was referred, and a report made in

favor of the plaintiff, for a sum smaller than that claimed, on July 19, 1856, the plaintiff entered judgment for the amount found due him. On the 19th of November following, the plaintiff served notice of appeal. On motion to dismiss said appeal, on the ground, amongst others, that it was too late, it not appearing that the defendant had ever served the plaintiff with written notice of the judgment, the motion was denied.

CHAPTER II.

Appeals to the Court of Appeals.

SECTION 333. Appeal, in what cases. Judgment on verdict, subject to the opinion of the court.

334. On appeal, security must be given, or deposit made, unless

waived.

335. On judgment for money; security to stay execution. New undertaking on sureties in the first becoming insolvent. Deposit in lieu of undertaking.

336. If judgment be to deliver document or personal property, it must be deposited or security be given.

337. If judgment be to execute conveyance, it must be executed and deposited.

338. Security where judgment is to deliver real property, or for a sale of mortgaged premises.

339. Stay of proceedings upon security being given.

340. Undertakings may be in one instrument or several.
341. Security to be approved and sureties to justify.

342. Perishable property may be sold, notwithstanding appeal.
343. Undertaking must be filed.

§ 333. (Am'd 1857.) Appeal, in what cases. Judgment on verdict, subject to the opinion of the court.

(1.) An appeal may be taken to the court of appeals, in the cases mentioned in section eleven.

(2.) When any of the courts mentioned therein shall, at general term, render judgment upon a verdict taken subject to the opinion of the court, the question or conclusions of law, together with a concise statement of the facts upon which they arose, shall be prepared, by and under the direction of the court, and shall be filed with the judgment-roll, and be deemed a part thereof, for the purposes of a review in the court of appeals.

The provisions of the last preceding [this] section shall apply to any judgment therein mentioned, that has been heretofore rendered, and upon which an appeal has been brought, and is now pending, or upon which an appeal shall hereafter be brought.

When the return has been already filed with the clerk of the court of appeals, such statement shall be filed with him, and be deemed a part of such return.

Appeal, in what cases.

a. Appeals to the court of appeals are governed entirely by section 11, and unless authority is found there, the appeal is not authorized (Batterman v. Finn, 40 N. Y. 340).

b. Mandamus.-The provisions of the code in relation to appeals to the court of appeals apply to all judgments in proceedings upon mandamus rendered after April 8, 1859 (Laws 1859, ch. 174, § 3). Such judgments rendered prior to that day are to be reviewed by writ of error (Becker v. The People, 18 N. Y. 487; and as to such judgment, see Laws, 1859, ch. 174).

c. Award.-An appeal does not lie from a judgment on an award; it must be reviewed by a writ of error (Isaacs v. Beth Hamedrash Society, 19 N. Y. 584).

d. Irregular judgment.—An irregular judgment is to be reviewed by motion, in the court below, not by appeal (Ingersoll v. Bostwick, 22 N. Y. 425; see ante, in note to § 323).

e. Default.-No appeal from judgment by default for want of an answer (Maltbie v. Greene, 1 Keyes, 548; see ante, p. 361, f). A judgment entered upon the answer being withdrawn, and an admission by defendant of the facts in the complaints, is a judgment by default (Bennett v. Couchman, 48 Barb. 74).

f. Contempt.-An order punishing a party to an action for a contempt, by imposing a fine for the benefit of the adverse party, and by imprisonment, is appealable to the court of appeals (Ludlow v. Knox, 7 Abb. N. S. 411; Noel v. Kingsland, 1 Trans. App. 270; see N. Haven R. R. Co. v. Ketchum, 3 Keyes, 24).

g. Actual determination.-The court of appeals will review only actual determinations at the general term, that is, questions upon which the court below has actually passed (Raynor v. Clark, 3 Code Rep. 230); it will not, therefore, review a decision at general term, on a default, or entered by stipulation (Strong v. Hardenburgh, 25 How. 238). An appeal lies to the court of appeals from a judgment of the general term, rendered upon argument, affirming a final judgment of any kind, if the latter is an actual determination and not merely rendered upon default (Lahens v. Fielder, 15 Abb. 177; and see Beecher v. Conradt, 11 How. 181), and where the supreme court at general term, on the request of a party moving for a new trial, the other party not appearing to oppose, takes the papers and examines the questions involved, its judgment thereon is an actual determination from which an appeal lies (Seneca Indians v. Knight, 19 N. Y. 587).

h. Where upon the record there does not appear to have been any order of the general term upon which the judgment was entered, but only shows a trial, verdict, and a statement that a new trial was denied, the court cannot review (Van Bergen v. Bradley, 2 Trans. App. 295). Where the case, on the appeal, fails to show the court in which judgment was rendered, or to show such judgment as is set forth in the notice of appeal, the appeal will be dismissed. It is not enough that the case states facts which make it probable, merely, that an appealable judgment has been rendered (Lahens v. Fielden, 15 Abb. 177). If the court can see that the defect arises from a mere clerical error or omission, it may allow an amendment (id.) And where the record shows an actual determination made at general term, although it does not affirmatively appear that the case was brought there by appeal, the court of appeals will presume that the case was regularly at general term by appeal (Beecher v. Conradt, 11 How. 181).

i. Upon a trial by jury, plaintiff had a verdict, and in the entry thereof

judgment for him was ordered. Defendant moved, before judgment at special term, for a new trial upon a case, and his motion was granted. Plaintiff appealed from this order, and it was reversed at general term, the order thereupon entered ordering judgment. After this, an order was entered containing an order for judgment on the verdict, stating the amount, but not stating whether such order was made at general or special term. The defendant appealed to the court of appeals,-held, on motion to dismiss the appeal, that the appeal was well brought, there having been an actual determination at the general term, in a judgment, of all the questions capable of litigation, and that a previous appeal to the general term, from the judgment rendered at special term, was unnecessary (Cook v. N. Y. Floating Dry Dock Co. 18 N. Y. 229).

a. The plaintiff in an action to foreclose a mortgage, obtained an order for judgment at special term, on the ground of the frivolousness of a demurrer to the complaint. This order for judgment was affirmed on appeal to the general term. The plaintiff then obtained a computation of the amount due, and a judgment at special term of foreclosure and sale. From this judgment, and the order at general term affirming the order for judgment, the defendant appealed to the court of appeals. On motion to dismiss, it was held that no such appeal would lie. The defendant, after the final judgment at the special term, should have appealed therefrom to the general term, when, in case of affirmance, he might have appealed to the court of appeals (Hollister B’k of Buffalo v. Vail, 15 N. Y. 593).

b. Where a case is sent back by the court of appeals for a new trial, the practice requires a new judgment by the court below, and a new formal appeal to the general term, before an appeal can be taken to the court of appeals (N. Haven R. R. Co. v. Schuyler, 34 N. Y. 30).

c. Final judgment.—The judgment to be reviewable in the court of appeals, must be a final judgment (Paddock v. Springfield Ins. Co. 12 N. Y. 591).

d. What is a final judgment.-The usual decree for sale in an action of foreclosure, directing a sale and a judgment for deficiency, is a final judgment (Morris v. Morange, 4 Abb. N. S. 447; and see Swarthout v. Curtis, 4 N. Y. 415). The holder of a fund, being sued by two parties having conflicting claims thereto, brought the same into court and was discharged from litigation, under section 122 of the code. There was no formal substitution of either claimant, as defendant, but a reference was ordered to ascertain the facts, and upon the coming in of the report, the fund was awarded,-held a final determination, equivalent to a judgment, from which an appeal might be taken to the court of appeals (Kirby v. Fitzpatrick, 18 N. Y. 484).

e. When the supreme court on appeal reverses the judgment or decree of a subordinate court, although further proceedings were directed to be had in the court where the suit or proceedings originated; and, therefore, where a surrogate dismissed a proceeding instituted before him to bring executors to account, and the supreme court, on appeal, reversed his decree with costs, and directed him to proceed with the account,-held, that an appeal would lie to the court of appeals (Messerve v. Sutton, 3 N. Y. 546).

f. What is not a final judgment-A judgment on demurrer to an answer, where issues of fact are undisposed of (Paddock v. Springfield Ins. Co. 12 N. Y. 591; and see The People v. Haws, 34 Barb. 69; Ford v. David, 3 Abb. 386; Harris v. Clark, 4 How. 78). A decision on a trial by the court without a jury where an account has to be taken (Lawrence v. Farmer's Loan Co. 15 How. 57; and see Tompkins v. Hyatt, 19 N. Y. 534); or where any question is reserved for future determination (Belmont v. Ponvert, 3 Rob. 694; Dunham v. Nicholson, 4 How. 140; Cruger v. Douglass, id. 215; Harris v. Clark, id. 78; Butler v. Lee, 3 Keyes, 70; Clark v. Brooks, 2 Abb. N. S. 385).

g. Action commenced in justice's court.—The court of appeals has jurisdiction of actions commenced in justice's courts (Flora v. Carbeau,

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