he judgment for the same cause, as prescribed in this title. Where the motion is made by the party against whom the udgment is rendered, or by his heir, devisee, executor, or adninistrator, service of the notice, upon the attorney of record or the party, in whose favor the judgment is rendered, has he like effect, as if it was served upon the party. § 1288. Where the judgment awards real property, or he possession thereof, or where the title to, or an estate or terest in, real property is determined or affected thereby, nd the real property, or estate, or interest therein, has been onveyed, by the adverse party, more than eight days before he hearing of the motion, notice of the motion must also be iven to each actual occupant of the property, claiming under he conveyance. 1289. Notice must be given, in a case specified in this itle, by personal service of a written notice, or of an order to how cause why the motion should not be granted; or, if a erson entitled to notice cannot, with due diligence, be found within the State, in any manner which the court, or a judge hereof, directs in an order to show cause, or which the court irects in a subsequent order. 120. § 1290. A motion to set aside a final judgment, for error 78 N. Y. 362. fact, not arising upon the trial, shall not be heard, except 3 Redf. 477. $ specified in the next section, after the expiration of two 33 Hun, 354; ears since the filing of the judgment-roll, unless notice there- 43 Id. 586. fis given, for a day within the two years; and either the 3 N. Y.Supp. earing is adjourned, by one or more orders, until after the xpiration of the two years; or the term, for which it is thus oticed, is not held. In the latter event, the motion may e-noticed for, and heard at, the next term at which it can be made, held not less than ten days after the day, when the _rst term was appointed to be held. be 136 N.Y. 287. 29 Abb, N.C. 404. § 1291. If the person against whom the judgment is ren- 29 Abb. N.C. ered, is, at the time of filing the judgment-roll, either 1. Within the age of twenty-one years; or 2. Insane; or 3. Imprisoned on a criminal charge, or in execution, upon onviction of a criminal offence, for a term less than for life; The time of such a disability is not a part of the time, limitd by the last section; except that the time within which the motion may be heard, cannot be extended more than five years by such a disability nor, in any case, more than one car after the disability ceases. 404. 1292. Where a judgment is set aside for any cause, 132 N.Y. 363. pon motion, the court may direct and enforce restitution, in ke manner, with like effect, and subject to the same condiions, as where a judgment is reversed upon appeal. 29 Abb. N.C. 479. 110 N.Y. 502. 128 N.Y. 426. 29 Abb. N.C. 430. 27 Hun, 18. 100 N. Y. 243. CHAPTER XII. APPEALS. TITLE I.-GENERAL PROVISIONS, RELATING TO THE APPEALS TITLE II.-APPEAL TO THE COURT OF APPEALS. TITLE III.-APPEAL TO THE SUPREME COURT FROM AN INF RIOR COURT. TITLE IV.-APPEAL TO THE GENERAL TERM OF THE SUPREM TITLE I. General provisions, relating to the appeals provided for this chapter. 1313. No security necessary.c appeal by the peopl etc. 1314. Id.; on appeal by munic pal corporation. 1315. Papers to be transmitte to appellate court. 1316. Interlocutory judgmen or intermediate order, may be reviewed. 1317. Judgment or order on ap peal. 1318. When no appeal lies from judgment of revers 1319. Mode of enforcing affirme 1320. Id.; as to order. 1322. Id.; when reversal, etc. 1293. The writ of error in a civil action or special pre ceeding has been abolished. § 1294. A party aggrieved may appeal, in a case pre scribed in this chapter, except where the judgment or order of which he complains, was rendered or made upon his de fault. 1295. The party or person appealing is designated & the appellant, and the adverse party as the respondent. Afterl an appeal is taken to another court, the name of the appella court must be substituted, for that of the court below, in th title of the action or special proceeding, and in any case, t name of the county, if it is mentioned, may be omitted; other se the title shall not be changed, in consequence of the ap l. 1296. A person azrieved, who is at a party, but is itled by law to be substituted in place of a party : ce o has acquired, since the making of the order, de tüm prering of the judgment appealed fra ad interest, wike uld have entitled him to be so substituted, eviously acquired. may also appeal as presented in this apter, for an appeal by a party. But the appeal cannot be ard until he has been substituted in peace fide party; and he unreasonably neglects to preure an coder of substitun, the appeal may be dismissed, upon motion of the reondent. 1297. Where the adverse party has died, since the aking of the order, or the render.az of the jud meat apaled from, or where the judgment appeled from was ndered, after his death, in a case prescribed by law, an peal may be taken, as if he was living; but it cannot be ård, until the heir, devisee, executor, or administrator, as e case requires, has been substituted as the respondent. In ch a case, an undertaking required to perfect the appeal, to stay the execution of the judgment or order appealed om, must recite the fact of the adverse party's death; and e undertaking enures, after substitution, to the benefit of e person substituted. § 1298. [Am'd 1877.] Where either party to an appeal 5 Week. es, before the appeal is heard, or has heretofore died, and Dig. $7. e appeal has not been heard, if an order, substituting another 119N.Y.117. rson in his place, is not made, within three months after his cath, or, where he has heretofore died, within three months ter this section takes effect, the court, in which the appeal pending, may, in its discretion, make an order, requiring I persons interested in the decedent's estate, to show cause efore it, why the judgment or order appealed from should ot be reversed or affirmed, or the appeal dismissed, as the se requires. The order must specify a day, when cause is o be shown, which must be not less than six months after aking the order; and it must designate the mode of giving otice to the persons interested. Upon the return day of the der, or at a subsequent day, appointed by the court, if the roper person has not been substituted, the court, upon proof, y affidavit, that notice has been given, as required by the orer, may reverse or affirm the judgment or order appealed from dismiss the appeal, or make such further order in the premes, as justice requires. § 1299. Where the appeal is from one court to another, application for an order of substitution, as prescribed by he last three sections, must be made to the appellate court. Where personal service of notice of application for an order as been made, within the State, upon the proper represenatives of the decedent, an order of substitution may be made, pon the application of the surviving party. 1300. An appeal must be taken, by serving, upon the 76 N. Y. 106 ttorney for the adverse party, as prescribed in article third 9 Daly, 482. f title sixth of chapter eighth of this act, and upon the clerk, with whom the judgment or order appealed from is entered, y filing it in his office, a written notice, to the effect, that he appellant appeals from the judgment or order, or from a pecified part thereof. § 1301. Where the appeal is from a final judgment from a final order in a special proceeding, and the appell intends to bring up, for review thereupon, an interlocut judgment, or an intermediate order, he must, in the notice appeal, distinctly specify the interlocutory judgment, or termediate order, to be reviewed. § 1302. If the attorney for the adverse party is dead if he has been removed, and notice of the removal has be served upon the appellant's attorney, and another atto has not been substituted in his place; or if, for any reas service of a notice of appeal, upon the proper attorney for adverse party, cannot, with due diligence, be made with the State, the notice of appeal may be served upon the spondent, in the manner prescribed by law for serving upon an attorney. If personal service upon the responde cannot, with due diligence, be so made within the Sta the notice of appeal may be served upon him, and not of the subsequent proceedings may be given to him, as rected by a judge of the court, in or to which the appeal taken. § 1303. Where the appellant, seasonably and in g faith, serves the notice of appeal, either upon the clerk upon the adverse party, or his attorney, but omits, thro mistake, inadvertance, or excusable neglect, to serve it up the other, or to do any other act, necessary to perfect the peal, or to stay the execution of the judgment or order pealed from; the court, in or to which the appeal is tak upon proof, by affidavit, of the facts, may, in its discreti permit the omission to be supplied, or an amendment to made, upon such terms as justice requires. § 1304. An appeal cannot be taken from an order ma by a judge, out of court, until it is entered in the office of the proper clerk. Where such an order has not been so entere or the papers, upon which it was founded, have not been file. in the same clerk's office, the judge who made, or, if he is a sent, or unable or disqualified to act, a judge of the court, or to which an appeal therefrom may be taken, must, up the application of a party or other person, entitled to tas such an appeal, make an order, requiring the omission to supplied, within a specified time after service of a copy the order made by him. Upon proof, by affidavit, that a co of the latter order has been served, and that the omission not been supplied, the same judge may make, upon notice, 2 order revoking and annulling the original order. The p visions of the last section but one apply to the service of order, or a notice, as prescribed in this section. § 1305. An undertaking, which the appellant is require by this chapter, to give, or any other act which he is so quired to do, for the security of the respondent, may waived by the written consent of the respondent. § 1306. Where the appellant is required, by this chapte to give an undertaking, he may, in lieu thereof, deposit w the clerk, with whom the judgment or order appealed from entered, a sum of money, equal to the amount, for which a undertaking is required to be given. The deposit has csame effect, as filing the undertaking; and notice that it tipeen made, has the same effect, as notice of the filing and s naice of a copy of the undertaking. The court, wherein peal is pending, may direct the mode, in which the m Il be kept and disposed of, during the pendency, or a determination of the appeal. 1307. An undertaking, given as prescribed in this chapmust be filed with the clerk, with whom the judgment order appealed from is entered. 1308. The court, in which the appeal is pending, upon isfactory proof, by affidavit, that since the execution of an dertaking, given as prescribed in this chapter, one or more the sureties therein have become insolvent; or that his their circumstances have become so precarious, the* there reason to apprehend, that the undertaking is notsufficient the security of the respondent; may make an order, reiring the appellant to file a new undertaking, and to serve copy thereof, as required with respect to the original unrtaking. If the appellant fails so to do, within twenty ys after the service of a copy of the order, or such further ne as the court allows, the appeal must be dismissed, the order or judgment, from which the appeal is taken, ust be executed, as if the original undertaking had not been ven. 72 N. Y. 613; 109 Id. 646. 101 N.Y, 289. 12 Gw Pro, 379. 14 Y state Kep 23 Abb. N. § 1309. [Am'd 1894, amendment to take effect Reptember 1, 94] An action shall not be maintained upon an undertaking ven upon an appeal, taken as prescribed in title third, arth or fifth of this chapter, until ten days have expired nce the service upon the attorney for the appellant, and on the sureties on such undertaking, of a written Lotice 1 Civ, Pro, the entry of a judgment or order, affirming the judgment order appealed from, or dismissing the appeal, bucu bezce may be made by mailing such notice in a port paid rapper, addressed to said surety or sureties at the last known st-office address of such surety or sureties. Where an ap al to the court of appeals from that judgment or order is erfected, and security is given thereupon, to slay the exe ition of the judgment or order apper led from, an action all not be maintained upon the undertaking given upon the receding appeal, until after the final determination of tuo peal to the court of appeals. *So in original. |