§ 317. (As am'd in 1852.) In an action prosecuted or defended by an executor, administrator, trustee of an express trust, or a per. son expressly authorized by statute, costs shall be recovered, as in an action by and against a person prosecuting or defending in his own right, but such costs shall be chargeable only upon, or collected of, the estate, fund or party represented, unless the court shall direct the same to be paid by the plaintiff or defendant, personally, for mismanagement or bad faith in such action or defense. But this section shall not be construed to allow costs against executors or administrators, where they are now exempted therefrom, by section 41 of title 3, chapter 6 of the second part of the revised statutes; and whenever any claim against a deceased person shall be referred pursuant to the provisions of the revised statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses and other necessary disbursements, to be taxed according to law. And the court may, in its discretion, in the cases mentioned in this section, require the plaintiff to give security for costs.

§ 318. (Added in 1849.) When the decision of a court of inferior jurisdiction in a special proceeding, shall be brought before the supreme court for review, such proceeding shall, for all purposes of costs, be deemed an action at issue on a question of law, from the time the same shall be brought into the supreme court, and costs thereon shall be awarded and collected in such manner as the court shall direct, according to the nature of the case.

(Am'd in 1862.)

§ 318. (As am’d in 1862.) When the decision of a court of inferior jurisdiction in a special proceeding, including appeals from surrogates' courts, shall be brought before the supreme court for review, such proceedings shall, for all purposes of costs, be deemed an action at issue on a question of law, from the time the same shall be brought into the supreme court, and costs thereon shall be awarded and collected in such manner as the court shall direct, according to the nature of the case.

§ 319. (Added in 1849.) In all civil actions prosecuted in the name of the people of this State, by an officer duly authorized for that purpose, the people shall be liable for costs in the same cases, and to the same extent, as private parties. If a private person be

joined with the people as plaintiff, he shall be liable in the first instance for the defendant's costs, which shall not be recovered of the people till after execution issued therefor against such private party and returned unsatisfied.

§ 320. (Added in 1849.) In an action prosecuted in the name of the people of this State, for the recovery of money or property, or to establish a right or claim, for the benefit of any county, city, town, village corporation, or person, costs awarded against the plaintiff shall be a charge against the party for whose benefit the action was prosecuted, and not against the people.

§ 321. (Added in 1849.) In actions, in which the cause of action shall, by assignment after the commencement of the action, or in any other manner, become the property of a person not a party to the action, such person shall be liable for the costs, in the same manner as if he were a party, and payment thereof may be enforced by attachment.

§ 322. (Added in 1849.) Upon the settlement, before judgment, of any action mentioned in section 304, no greater sum shall be demanded from the defendant as costs, than at the rates prescribed by that section.

TITLE XI.

Of Appeals in Civil Actions.*

CHAPTER I. Appeals in general.

II. Appeals to the court of appeals.

III. Appeals to the supreme court from an inferior court.

IV. Appeals in the supreme court and the superior court, and the court
of common pleas of the city of New York, from a single judge to
the general term.

V. Appeal to the court of common pleas for the city and county of
New York, or to a county court, from an inferior court.

CHAPTER I.

Appeals in General.

SECTION 323. Writs of error abolished, and appeals substituted.

324. Orders made out of court, how vacated or modified.

325. Who may appeal.

326. Parties, how designated on appeal.

327. Appeal, how made.

328. Clerk to transmit papers to appellate court.

329. Intermediate orders affecting the judgment, may be reviewed on

the appeal.

830. Judgment on appeal.

331. Certain appeals to be within two years.

332. Other appeals within thirty days.

§ 323. (Being § 271 of 1848.) Writs of error and appeals in civil actions, as they have heretofore existed, are abolished, and the only mode of reviewing a judgment or order in a civil action shall be that prescribed by this title.

(Am'd in 1849.)

§ 323. (As am'd in 1849.) Writs of error in civil actions, as they have heretofore existed, are abolished, and the only mode of reviewing a judgment or order in a civil action shall be that prescribed by this title.

§ 324. (Being § 272 of 1848.) An order made out of court, without notice to the adverse party, may be vacated or modified, without notice, by the judge who made it, or may be vacated or modified, on notice, in the manner in which other motions are made.

*As to appeals in special proceedings, see ch. 270 of 1854. Sections 327, 329, 330 and 332 of the code are applied to appeals in such proceedings by § 2 of that act.

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§ 325, (Being § 273 of 1848.) Any party aggrieved may appeal in the cases prescribed in this title.

§ 326. (Being § 274 of 1848.) The party appealing shall be known as the appellant, and the adverse party as the respondent. But the title of the action shall not be changed in consequence of the appeal.

§ 327. (Being § 275 of 1848.) An appeal must be made by the service of a notice in writing on the adverse party, and on the clerk with whom the judgment or order appealed from is entered, stating the appeal from the same, or some specified part thereof. (Am'd in 1849.)

§ 327. (As am'd in 1849.) The appeal must be made by the service of a notice in writing on the adverse party, and on the clerk with whom the judgment or order appealed from is entered, stating the appeal from the same or some specified part thereof. When a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit, through mistake, to do any other act necessary to perfect the appeal or to stay proceedings, the court may permit an amendment on such terms as may be just.

§ 328. (Being § 276 of 1848.) Upon the appeal allowed by the second and third chapters of this title, being perfected, the clerk, with whom the notice of appeal is filed, shall, at the expense of the appellant, forthwith transmit to the appellate court a certified copy of the notice of appeal and of the judgment roll.

(Am'd in 1858 and 1863.)

§ 328. (As am'd in 1858.) Same as in 1848, except that the following words were added at the end thereof:

"Or, if the appeal be from an order or any part thereof, a certified copy of such order and of the papers upon which the order was granted."

§ 328. (As am'd in 1863.) If the appellant shall not, within twenty days after his appeal is perfected, cause a certified copy of the notice of appeal and of the judgment roll, or, if the appeal be from an order or any part thereof, a certified copy of such order and the papers upon which the order was granted, to be transmitted to the appellate court by the clerk with whom the notice of appeal is filed, the respondent may cause such certified copy to be trans

mitted by such clerk to the appellate court, and recover the expenses thereof as a disbursement on such appeal, in case the judgment or order appealed from shall be in whole or in part affirmed, and this provision shall apply to all appeals heretofore taken where the appeal has not been dismissed in the manner provided by the rules of the appellate court.

§ 329. (Being § 277 of 1848.) Upon an appeal from a judgment, the court may review any intermediate order, involving the merits, and necessarily affecting the judgment.

§ 330. (Being § 278 of 1848.) Upon an appeal from a judgment or order, the appellate court may reverse, affirm or modify the judgment or order appealed from in the respect mentioned in the notice of appeal and may, if necessary or proper, order a new trial. (Am'd in 1849.) ·

§ 330. (As am'd in 1849.) Upon an appeal from a judgment or order, the appellate court may reverse, affirm or modify the judgment or order appealed from in the respect mentioned in the notice of appeal, and as to any or all of the parties, and may, if necessary or proper, order a new trial. When the judgment is reversed or modified, the appellate court may make complete restitution of all property and rights lost by the erroneous judgment.

§ 331. (Being § 279 of 1848.) The appeal allowed by the second and third chapters of this title must be taken within two years after the judgment.

(Am'd in 1857 and 1858.)

§ 331. (As am'd in 1857.) The appeal allowed by the second and third chapters of this title must be taken within two years after the judgment shall be perfected, by filing the roll thereof, and entering the same in the judgment book in the proper clerk's office.

§ 331. (As am'd in 1858.) The appeal to the court of appeals, under subdivision 2 of section 11, 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 must be taken within two years after the judgment shall be perfected, by filing the judgment roll.