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competent court, has the better claim to the benefit of it, during the appeal. The adoption of the section will do much to discourage unfounded appeals, which are now not unfrequently brought for delay.

§ 1181, The undertakings prescribed by sections 1174, 1175, 1176 and 1178, may be in one instrument or several, at the option of the appellant; and a copy, including the names and residence of the sureties, must be served on the adverse party, with the notice of appeal, unless a deposit is made as provided in section 1174 and notice. thereof given.

Amended Code, § 340.

§ 1182. An undertaking upon an appeal is of no effect, unless it be accompanied by the affidavit of the sureties, that they are each worth double the amount specified therein. The adverse party may, however, except to the sufficiency of the sureties, within ten days after notice of the appeal; and unless they or other sureties justify before a judge of the court below, or a county judge, as prescribed by sections 691 and 692, within ten days thereafter, the appeal must be regarded as if no such undertaking had been given. The justification must be upon a notice of not less than five days.

Amended Code, § 341.

§ 1183. In the cases not provided for in sections 1175, 1176, 1177, 1178 and 1179, the perfecting of an appeal, by giving the undertaking mentioned in section 1174, stays proceedings in the court below, upon the judgment ap

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pealed from, except, that where it directs the sale of ishable property, the court below may order the property to be sold, and the proceeds thereof to be deposited or invested, to abide the judgment of the appellate court.

Amended Code, § 342.

CHAPTER III.

APPEALS TO THE SUPREME COURT FROM AN INFERIOR COURT.

SECTION 1184. Appeal, in what cases.

1185. Security to be given as on appeal to court of appeals.

1186. Where heard.

1187. Papers, by whom furnished.

§ 1184. An appeal may be taken to the supreme court, from the judgment rendered by a county court, or by a city court.

Amended Code, § 344. The amendment restricting the right omitted.

1185. Security must be given npon such appeal, in the same manner, and to the same extent, as upon an appeal to the court of appeals.

Amended Code, § 345.

1186. Appeals in the supreme court must be heard at a general term, either in the district embracing the county where the judgment or order appealed from was entered, or in a county adjoining that county, except that where the judgment or order was entered in the city and county of New-York, the appeal must be heard in the first district.

Amended Code, § 346.

§ 1187. Judgment upon the appeal must be entered and docketed with the clerk in whose office the judgment roll is filed. When the appeal is heard in a county other than that where the judgment roll is filed, the judgment upon the appeal must be certified to the clerk with whom the roll is filed, to be there entered and docketed.

Amended Code, § 347.

CHAPTER IV.

APPEALS IN THE SUPREME COURT, AND IN THE SUPERIOR COURT AND COURT OF COMMON PLEAS OF THE CITY OF NEW-YORK, FROM A SINGLE JUDGE, TO THE GENERAL TERM.

SECTION 1188. Appeals allowed from circuits and special terms to same court in general term; where heard, and security required.

1189. Orders in certain cases may be appealed from.
1190. Orders at chambers to be entered before appeal.

1188. In the supreme court, the superior court of the city of New-York, and the court of common pleas of the city of New-York, an appeal, upon cither the law or the fact, may be taken to the general term, from a judgment entered upon the report of referees or the direction of a single judge of the same court. Security must be given upon such appeal, in the same manner as upcn an appeal to the court of appeals. In the supreme court, the appeal must be heard in the same manner as if it were an appeal from an inferior court; but the decision at the general term upon the facts separately from the law, is final.

Amended Code, §348.

Under the former practice, all questions, whether of fact or law, in equity suits, were the subjects of appeal, even to the court of last resort. The amendment made in 1849 by the legislature to section 348, confined an appeal to questions of law only, and in effect made the decision of a single judge on the first trial conclusive. There is a propriety in not subjecting the verdict of a jury on the facts, to the review of a court; to allow which would much impair the value of a jury trial. Not so, however, with respect to the decision of a single judge, where a due regard to the rights of parties seems to us to require, that at least one opportunity should be afforded to review such a decision more especially when we consider that in the class of cases, where the trial of facts is by the court, it is sometimes difficult to separate the law and fact. To meet this view, we propose to modify the amendment of last year as provided in this section.

§ 1189. An appeal may in like manner, and within the same time, be taken from an order made by a single judge of the same court, and may be thereupon reviewed in the following cases:

1. When the order grants or refuses a provisional remedy:

2. When it grants or refuses a new trial:

3. When it involves the merits of the action, or some part thereof:

4. When the order affects a substantial right, and involves the construction. of the constitution or of a provision of this code:

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

Amended Code, § 349.

§ 1190. The last section includes an order made out of court upon notice; but in such case, the order must be first entered with the clerk. And for the purpose of an appeal, any party, affected by such order, may require it to be entered with the clerk, and it must be entered accordingly.

Amended Code, § 350.

CHAPTER V.

APFEAL TO THE COURT OF COMMON PLEAS OF THE CITY OF NEW-YORK,

OR TO A COUNTY COURT, FROM AN INFERIOR COURT.

SECTION 1191. Manner of reviewing judgments.

1192. Judgments to be reviewed by common pleas, and by county courts.

1193. Appellant to make affidavit.

1194. Copy affidavit and notice of appeal to be served.

1195. Security to stay execution.

1196. To be approved by judge or court below.

1197. Security served stays execution.

1198. In case of death of justice, to be filed.

1199. Counter affidavits allowed.

1200. Appeal may be heard on affidavits.

1201. Return when and how made, and compelled.

1202. In case justice be out of office.

1203. Amended return may be required.

1204. If justice be dead, witness to be examined.

1205. Hearing, upon return.

1206. Copies of papers not required on hearing.

1207. Judgment how given.

1208. Judgment roll.

1209. Conclusive, unless another action is allowed.

1210. Restitution may be ordered.

1211. Costs set off in certain cases.

1212. What costs allowed.

§ 1191. Judgments in civil cases, rendered by justices' courts, and by the marine court of the city of New-York,

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