ɑ. Death of party pending on appeal.—An order of affirmance by default, founded upon a notice of argument, addressed to and served upon the attorney of an appellant, after the death of the latter, and after such attorney had been notified of the death, is irregular (Warren v. Eddy, 32 Barb. 664; 13 Abb. 28).

b. Where a party dies after the argument of an appeal, and before the decision and judgment against him is entered nunc pro tunc as of a day before his death, the prevailing party may proceed to collect his judgment, and the representatives of the deceased party must, at their peril, cause themselves to be made parties, or the judgment may be enforced against them (Beach v. Gregory, 2 Abb. 203).

c. If the personal representative of a deceased appellant is a nonresident, so that the action cannot be revived in his name, the proper course for the respondent if he desires to prosecute the appeal, after notice of the death of the appellant, and that his representative abandons the appeal, is to have an administrator appointed, and then apply to have the action revived in the name of such administrator (Warren v. Eddy, 32 Barb. 664; 13 Abb. 28).

d. Foreign executors or administrators cannot either continue or dismiss an appeal by their testator or intestate, pending at his decease in a court in this State (id)

e. Opening judgment taken for default.—A motion to open a default at general term should be made at special term, but the court at general term also has jurisdiction of such a motion (Strong v. Hardenburgh, 25 How. 438). It is no objection to such a motion, that a notice of appeal to the court of appeals, from such judgment, has been served (id.) It is the practice of the superior court of New York, at general term where a default is taken on the first day of the term, to open such default and permit the same to be argued upon terms, if the application is made without delay at the same term, unless some bad faith appears, or there is reason to believe the appeal is frivo lous, or that the purpose is delay (Bradford v. Greenwich Ins. Co. 8 Abb. 261; see Whiting v. Kimball, 6 Bosw. 690).

§ 349. (Am'd 1849, 1851, 1852, 1862.) Orders by a single judge be appealed from in certain cases.

may

An appeal may in like manner, and within the same time, be taken from an order made at a special term, by a single judge of the same court or county, or a special county judge, or by a recorder, or by any recorder's court of any city, in any stage of the action, including proceedings supplementary to the execution; and may be thereupon reviewed in the following cases:

1. When the order grants or refuses, continues or modifies, a provisional remedy.

2. When it grants or refuses a new trial, or when it sustains or overrules a demurrer.

3. When it involves the merits of the action, or some part thereof, or affects a substantial right.

4. When the order in effect determines the action, and prevents a judgment from which an appeal may be taken.

5. When the order is made upon a summary application, in an action after judgment, and affects a substantial right.

a. Appeal in special proceedings.-The 349th section of the code does not apply to appeals in special proceedings (Re Cooperstown Plank Road Co. 3 Code Rep. 148; Bedell v. Stickles, 4 How. 433). But an appeal may be taken to the general term from any judgment, order, or final determination made at a special term, in any special proceeding; such an appeal, however, shall not stay the proceedings, unless the court or a judge thereof so order, which order may be 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 (Laws of 1854, p. 952, § 1). Sections 327, 329, 330, and 332 of the code apply to appeals in special proceedings (ib. § 2). In special proceedings, and on appeals therefrom, costs may be allowed in the discretion of the court, and when allowed shall be at the rate allowed for similar services in civil actions; and all appeals heretofore had or taken and undetermined in special proceedings, shall be as valid and effectual as though had or taken under the provisions of this act (ib. § 3); see Code § 318, ante.

b. This act authorizes the review, by an appeal to the general term of the supreme court, of an order at special term confirming the report of commissioners of appraisal for lands taken for a railroad (Rochester, &c. R. R. Co. v. Beckwith, 10 How. 168). It also authorizes an appeal from an order directing a mandamus to issue (The People v. Schoonmaker, 19 Barb. 657). And an appeal from an order at special term, denying a motion to set aside a report of a referee on a reference of a claim against executors (Boyd v. Bigelow, 14 How. 511); from order on motion to vacate assessment for fraud (Pinckney's Case, 18 Abb. 367; Re Thayer, 30 How. 276; Re Dodd, 27 N. Y. 629); in cases of prohibition (The People v. N. Y. Com. Pleas, 43 Barb. 280). Removal of trustee (Re Livingston, 2 Abb. N. S. 1). In proceedings to charge stockholders of a bank (Re Empire City B'k, 8 Abb. 192), in proceedings to change location of a toll gate (McAllister v. Albion Plank Rd Co. 11 Barb. 610), or an order of the supreme court, reversing a final decree of a surrogate in a proceeding for an account (Wagener v. Reiley, 4 How. 195); or reversing a surrogate's decree admitting a will to probate for error in law (Talbot v. Talbot, 23 N. Y. 17); or an order removing the committee of a lunatic is not appealable (Re Griffin, 5 Abb. N. S. 96). As to appeals in cases of street-openings in New York city, see Re the Bowery, 12 How. 96; 2 Abb. 368; Pryor's Appeal, 5 Abb. 272; Re Sixty-fifth Street, 23 How. 256; Re Seventy-sixth Street, 12 Abb. 317; Re Seventh Ave. 29 How. 180.

c. No appeal lies-From an order-Granting or refusing an ex parte order (Savage v. Relyea, 3 How. 276; Nicholson v. Dunham, 1 Code Rep. 119; Lindsay v. Sherman, 5 How. 308); or, refusing leave to reply, after the time for replying had passed (Thompson v. Starkweather, 2 Code Rep. 41); or, refusing to strike out immaterial or redundant averments (Whitney v. Waterman, 4 How. 313; Bedell v. Stickles, 4 How. 433); or, directing a bond of trustees appointed by the late court of chancery to be prosecuted (Re White, 3 Code Rep. 141); or, granting a new trial and assessment of damages under the act relating to plank roads (Re Cooperstown, &c. Plank Road Co. 3 Code Rep. 148); or, granting a new trial on the ground of newly discovered evidence (Seeley v. Chittenden, 10 Barb. 303); or, for temporary alimony (Abbey v. Abbey, 6 How. 340, n); or, for an attachment for disobedience to an order granting temporary alimony (ib.); or, for a reference (Gray v. Fox, 1 Code Rep. N. S. 334; Bryan v. Brennon, 7 How. 359; Dean v. Empire Mut. Ins. Co. 9 ib. 69; Ubsdell v. Root, 3 Abb. 142; 1 Hilton, 173; Smith v. Dodd, 3 E. D. Smith, 348; Cram v. Bradford, 4 id. 193); or, denying a motion to enter on the docket of a judgment the words "secured by appeal" (Fitch v. Livingston, 4 Sand. 712); or, granting or refusing an extra allowance (Dickson v. McElwain, 7 How. 138; Cook v. Dickinson, 5 Sand. 663; Dana v. Fielder, 1 Code Rep. N. S. 224; Wilkinson v. Tiffany, 4 Abb. 98); or, denying a motion to set aside a judgment, for irregularity, on the ground that no court is named in the summons (Tallman v. Hinman, 10 How. 89); or, granting a commission with a stay of proceedings (Thatcher v. Bennett, MS.; The

People v. Stilman, 7 Cal. R. 117); or, allowing or denying costs of a motion (Dennison v. Dennison, 9 How. 246; Perry v. Moore, 2 E. Ď. Smith, 32; Joyce V. Mayor of N. Y. 20 How. 439); or, imposing terms as a condition of relief from a default (Gale v. Vernon, 4 Sand. 790; Merchants' B'k v. Mills, 3 E. D. Smith, 210; Jacobs v. Marshall, 6 Duer, 689); or, denying a motion to remove a referee after trial had before him, and the cause referred back for further testimony (Perry v. Moore, 2 E. D. Smith, 32; 3 Code Rep. 221); or, giving time to a party to make a motion, and staying proceedings in the meantime (Hunt v. Bennett, 2 E. D. Smith, 53); or, denying an application of an assignee of an interest, pendente lite, to be made a party to the action (Me Gown v. Leavenworth, 2 id. 24); or, made by a county judge in proceedings supplementary to execution in a cause originating in a justice's or county court (Smith v. Hart, 11 How. 203); or, order appointing an appraiser to ascertain value of property attached (Lupton v. Jewett, 19 Abb. 320; or, appointing a receiver (Siney v. N. Y. Consol. Stage Co. 28 How. 481); or, to show cause (Watt v. Watt, 30 How. 345); or, a decision at the trial on an application to amend (Bailey v. Johnson, 1 Daly, 62); or, for a reference (Dickinson v. Mitchell, 19 Abb. 286); or, requiring plaintiff to give security for costs (Bolles v. Duff, 17 Abb. 448); or, a mere opinion of the court given upon deciding a motion to determine a party's right to costs upon a verdict (Sneyder v. Beyer, id. 235). On a motion for a receiver (Sheldon v. Weeks, 2 Barb. 532). On a motion to open a sale under a judgment, on the ground of misapprehension or any other circumstances not affecting the regularity of the proceedings (Kingsland v. Bartlett, 28 Barb. 480). On a motion to open a default (Whitaker v. Dexfosse, 7 Bosw. 678; Millard v. Van Ranst, 17 Abb. 319, note; see, however, Leighton v. Wood, 17 Abb. 177; ante, p. 376, d). Setting aside a sale in foreclosure (Buffalo Sarings B'k v. Newton, 23 N. Y. 160); or, striking out an answer as sham or irrelevant (Briggs v. Bergen, 23 N. Y. 162); or, denying leave to amend a pleading (Macqueen v. Babcock, 13 Abb. 268; Saltus v. Genin, 19 How. 233; 10 Abb. 478; Hatfield v. Secor, 1 Hilton, 535), unless the leave be denied on the ground of want of power to grant it (McElwin v. Corning, 22 Abb. 16; Artisans' Bk v. Treadwell, 34 Barb. 553; Russell v. Conn, 20 N. Y. 81); or, amending a judgment, by granting leave to a party to amend his pleading and proceed in the action (N. Y. Ice Co. v. N. West Ins. Co. 21 How. 296; 12 Abb. 414); or, for production and discovery of books and papers (White v. Munroe, 33 Barb. 650; 12 Abb. 357); or, granting defendants sued as bail, further time to render their principal (Bank of Geneva v. Reynolds, 20 How. 19); or, denying or allowing a motion to open default and set aside an inquest (Muldenor v. MeDonogh, 2 Hilton, 46; Bolton v. Depeyster, 3 Code Rep. 141; Churchill v. Mallison, 2 Hilton, 70; Foshay v. Drost, 4 Bosw. 664; Leighton v. Wood, 17 Abb. 177; Lewis v. Graham, 16 Abb. 126; Mead v. Mead, 2 E. D. Smith, 223; and see Clark v. Lyon, 2 Hilton, 91; Quinn v. Case, 2 Hilton, 467); or, for judgment debtor to apply property to the discharge of the judgment (Joyce v. Holbrook, 2 Hilton, 94); 7 Abb. 338; or, on an application to commit a judg ment debtor as for a contempt (id.); but see Holstein v. Rice, 15 Abb. 307; Liv-ingston v. Swift, 23 How. 1; Ackroyd v. Ackroyd, 2 Abb. N. S. 380; The People v. Healy, 33 How. 172); or, reducing amount of bail (Hart v. Kennedy, 15 Abb. 290); or, made on motion of bail for leave to surrender their principal after the time allowed by law therefor had expired (B'k of Geneva v. Reynolds, 12 Abb. 81); or, denying a motion for resale on a foreclosure, on the ground of inadequate price (Young v. Bloomer, 22 How. 383); or, refusing leave to amend at circuit (McCarty v. Edwards, 24 How. 236); or, adjudging a witness examined before the trial to be in contempt (The People v. Dyckman, 24 How. 222); or, denying a motion to dismiss the complaint on the ground that the plaintiff, a foreign corporation, had omitted to file security for costs (Tyrone and Lock Haven R. R. Co. v. Schenck, 18 How. 275); or refusing to allow a party to serve a bill of particulars after his time to do so had expired (Goings v. Patten, 17 Abb. 339); or, for leave to amend (Hatfield v. Secor, 1 Hilton, 535; Bowman v. De Peyster, 2 Daly, 203), or settling issues (Wood v. Mayor of N. Y. 4 Abb N. S. 152). There cannot be an appeal from an order entered by default or by consent

(Boyd v. Bigelow, 14 How. 511; but see 4 Abb. 98; 34 How. 163). An order is not final, so as to authorize an appeal, where there is an order of reference outstanding and undetermined (The People v. Haws, 21 How. 178).

a. An appeal lies-From an order-allowing an attachment (B'k of Lansingburg v. McKie, 7 How. 364; Conklin v. Dutcher, 1 Code Rep. N. Š. 49); or, for the plaintiff to pay the defendant's costs, in an action where an offer has been made, and the plaintiff has recovered less than the sum mentioned in the offer (McGrath v. Van Wyck, 1 Code Rep. N. S. 157); or, for a reference after judgment by default, in an action to recover personal property, to ascertain the plaintiff's damages occasioned by the taking and detaining (Emerson v. Burney, 1 Code Rep. N. S. 189); or, directing a defendant to pay the amount admitted due by the answer (Merritt v. Thompson, 1 Abb 223); or, striking out portions of a pleading, if the portion stricken out may affect the rights of the party (Whitney v. Waterman, 4 How. 313; Otis v. Ross, 8 ib. 195); or, in supplemental proceedings (Hatch v. Weyburn, 8 How. 163); or, denying a motion to set aside proceedings on the ground that no summons had served (Van Rensselaer v. Chadwick, 7 How. 297); or, denying a motion to enter an exoneratur of bail (Col. Ins. Co. v. Force, 8 How. 358); or, directing a reference, in a case not authorized by law ( Whitaker v. Desfosse, 7 Bosw. 678; Kenedy v. Shilton, 1 Hilton, 546); or, opening a judgment against the city of New York, on motion pursuant to the law of 1859 (Joyce v. Mayor of N. Y. 20 How. 439; 12 Abb. 309); or, denying motion to open judgment for default of an answer, defendant swearing to a defense on the merits (Quinn v. Case, 2 Hilton, 467); it is otherwise where the order is made as a mere favor (Foshay v. Drost, 4 Bosw. 664), or, allowing an amendment of the complaint, by the insertion of an additional and inconsistent cause of action (Sheldon v. Adams, 27 How. 179; 41 Barb. 54; Union Bank v Mott, 19 How. 267; 11 Abb. 42; see Salters v. Genin, 10 Abb. 478; 19 How. 233); or, denying a motion to set aside a report of referees (Matthews v. Jones, 1 E. D. Smith, 429); or, denying a motion to enter satisfaction of a judgment, so as to enforce the lien of an attorney (Ward v. Wordsworth, 1 E. D. Smith, 599); or, allowing an action to be entertained in the name of surviving plaintiffs, and admitting others in place of a deceased plaintiff (St. John v. Croel, 10 How. 253); or, denying a motion to set aside a judgment on the ground, amongst others, that the defendant, the moving party, had not been served with notice of trial (Tracy v. N. Y. Steam Faucet Co. 1 E. D. Smith, 357); or, denying a motion to set aside a judgment, on the ground that it was entered after a settlement and satisfaction of the cause of action (Marquat v. Mulvy, 9 How. 460) ; or, denying a motion for leave to examine an adverse party before the trial (Green v. Wood, 7 Abb. 277); or, granting alimony (Leslie v. Leslie, 6 Abb. N. S. 193; see, however, Griffin v. Griffin, 23 How. 189; Moncrief v. Moncrief, 10 Abb. 315); or, allowing amendments by adding a cause of action or defense (Sheldon v. Adams, 27 How. 179; 18 Abb. 405). And from an order denying a motion to make a pleading definite (Arrietta v. Morrissey, 1 Abb. N. S. 439); or, refusing to postpone a trial (Howard v. Freeman, 7 Rob. 25); or, refusing to set aside execution for costs against executors personally (Slocum v. Barry, 34 How. 320); or, opening an inquest (Leighton v. Wood, 17 Abb. 177; but see 7 Bosw. 678; 17 Abb. 319, note).

b. A purchaser at a foreclosure sale may appeal to the general term from an order setting aside the sale (Mortimer v. Nash, 17 Abb. 299, note). An order refusing an attachment against a witness disobeying a subpoena duces tecum, is appealable (so said in La Farge v. La Farge Fire Ins. Co. 14 How. 29). An order denying a motion to set aside for irregularity and as a favor, a judgment taken by default upon the answer as sham, was held to be appealable (Fassett v. Tallmadge, 15 Abb. 205).

c. Waiver of appeal.-If a party to an action proceeds upon an order made in the cause, or accepts any benefit or advantage under it, he will be precluded from asking its review. Therefore, where an order was granted that the defendant be allowed to answer on payment of costs, and plaintiff

accepted the costs and received the answer,-held that the acceptance of the costs, if they were received before the appeal, was a waiver of the right of appeal; and if received after, it was a waiver of the appeal (Radway v. Graham, 4 Abb. 468; and see Lewis v. Irving Ins. Co. 15 Abb. 140, n; Lupton v. Jewett, 1 Rob. 639).

a. A moving party cannot appeal from an order denying his motion, where he has availed himself of a provision of the order giving him leave to renew the application (Noble v. Prescott, 4 E. D. Smith, 139).

b. Where, after an appeal taken from an order denying a motion, an order is obtained for leave to renew such motion, the court will not hear the appeal while such order giving leave to renew remains in force (Peel v. Elliott, 16 How. 483).

c. Order must be entered.-No appeal can be had from an order until it is entered and the moving papers filed with the clerk (Smith v. Dodd, 3 E. D. Smith, 215; Mc Cunn v. Barnett, 2 id. 521; Marshall v. Francisco, 10 How. 147; Plato v. Kelly, 16 Abb. 188; Gallt v. Finch, 24 How. 193). That there is at the foot of the order a written direction of the judge to enter it, makes no difference (Whitaker v. Desfosse, 7 Bosw. 678). But where an appeal has been argued without any objection or suggestion that the order has not been entered, the court will not assume that it has not been entered, but will decide the appeal on its merits (id.) See note to § 350 post.

d. Order on demurrer.—The provision allowing an appeal from an order when it sustains or overrules a demurrer, is applicable to all cases where leave to amend is given in connection with a decision on a demurrer, and also to decisions on demurrer to part of a pleading (Bauman v. N. Y. Central R. R. Co. 10 How. 208; Cook v. Pomeroy, ib. 221), and to every case of a decision on a demurrer where the appeal is taken before any judgment is actually entered (Nolton v. The Western R. R. Co. 10 How. 97; Nellis v. DeForest, 6 ib. 413; Lee v. Ainslie, 1 Hilton, 277; Reynolds v. Freeman, 4 Sand. 702; Phipps v. Van Cott, 4 Abb. 90; Ives v. Miller, 19 Barb. 197; Sutherland v. Tyler, 11 How. 251; Mattoon v. Baker, 24 How. 329).

e. Merits. An order "involves the merits means all orders in the progress of a cause, except such as relate merely to matters resting in the discretion of the court, or to mere matters of practice or form of proceeding. An application for the necessary process to enforce the judgment of the court, involves the merits (Cruger v. Douglas, 2 Code Rep. 123; and see St. John v. West, 4 How. 331; Tallman v. Hinman, 10 id. 90 ̊; see Tracy v. New York Steam Faucet Co. 1 E. D. Smith, 357; Burhans v. Tibbitts, 7 How. 78; Seldon v. Delaware Canal Co. 29 N. Y. 634).

ƒ. Substantial right.—A party cannot be said to have a right to what a court has a discretion to grant or withhold. The legislature must have intended by a substantial right a fixed, determined right, independent of the discretion of the court, and of some value. Such a right must exist and be injuriously affected by an order, to bring a case within the 3rd sub. of sect. 349 (Tallman v. Hinman, 10 How. 90). An order admitting, or refusing to admit, an action to be continued in the name of a surviving plaintiff, or in the names of the representatives in interest of a deceased plaintiff, affects a substantial right (St. John v. Croel, id. 353). An order denying a party the exclusive right to a large sum of money, affects a substantial right, and is appealable (Artisans' B'k v. Treadwell, 34 Barb. 553). So of an order for an extra allowance (The People v. N. Y. Cent. R. R. Co. 29 N. Y. 418; Wilkinson v. Tiffany, 4 Abb. 98; Union B'k v. Mott, 13 Abb. 247); or for costs not allowed by law (Sluyter v. Smith, 2 Bosw. 673).

g. Review of order granting or refusing a new trial.— The decision on a motion for a new trial, can be reviewed only on an appeal from the order denying the new trial (Morange v. Morris, 12 Abb. 164; 32 Barb. 650; Morrison v. N. Y. & Harlem R. R. Co. 32 Barb. 568). An appeal may be taken from an order denying a motion for a new trial, although judgment has been entered (Lane v. Bailey, 1 Abb. N. S. 407); where it was en