evidence of debt, for the absolute payment of money, on demand, or at any particular time. 2 R. S., 459, section 11.

So, in actions by the attorney-general for the impeachment of manorial titles, under the resolution of the 10th of April, 1848. Chapter 128 of 1850, p. 200.

Appeals in criminal cases. Rule 13, Court of Appeals; rule 48, Supreme Court.

Appeals in suits to which the people are a party, where notice to such effect shall have been given by the attorney for the state. Chapter 37 of 1858, section 1, p. 65.

Appeals in actions in which executors or administrators are sole plaintiffs or sole defendants, or which prevent the issuing of letters testamentary or of general administration. Chapter 167 of 1860, p. 270.

§ 305. Judgment on Appeal.

The powers of the court, on awarding judgment, are defined by section 330, as above cited: "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 all or any of the parties; and may, if necessary, order a new trial. And, when a judgment is reversed or modified, it may make complete restitution."

Where the notice of appeal is limited in its nature, the powers of the court in awarding judgment, are limited to the same extent. Only such parts of the judgment as are appealed from, can be reviewed. Kelsey vs. Western, 2 Comst., 500. Nor can a judgment be affirmed, as to part of the amount recovered, and reversed as to the residue, as between the same parties, where a new trial is granted, as to the part which is reversed. Story vs. The New York and Harlem Railroad Company, 2 Seld., 85.

It is true that an appellate court may, in some cases, modify, or even reverse part of a judgment or decree, not embraced in the appeal, but this proceeding can only be justified, where the modification or reversal is necessary, to render the decree, as finally pronounced, entirely consistent. Bell vs. Holford, 1 Duer, 58. But, as a general rule, a respondent cannot obtain relief, even though otherwise proper, where he has omitted to take a counter-appeal on his own part. Same case. Rooney vs. Second Avenue Railroad Company, 18 N. Y., 368 (371).

Under the powers conferred by the above section, the court may now reverse a judgment, against an appellant, suffering it to stand as against another party in the same interest, who has omitted to appeal. Geraud vs. Stagg, 4 E. D. Smith, 27; 10 How., 369; overruling Farrell vs. Calkins, 10 Barb., 348 (354), note.

And, on the reversal of judgment as to one, and affirmance of it as to another appellant, costs will be awarded in favor of the former, in the absence of any special reason to the contrary. Montgomery County Bank vs. Albany City Bank, 3 Seld., 459.

The questions as to the mode in which judgment should be entered on appeal have been already considered, and the cases cited above, in book XI.

On the subject of restitution, as above prescribed, it is laid down in Estus vs. Baldwin, 9 How., 80, that, when the judgment of the appellate court is given for the appellant, absolutely and finally, no new trial being ordered, it is imperative upon the court to order restitution of all that the appellant has lost, including, as there laid down, all costs which he has incurred since the outset of the action. See likewise, Sheridan vs. Mann, 5 How., 201; 3 C. R., 213.

The motion for restitution should be made before the entry of judgment, of which it then becomes a part, and execution may be issued to enforce it. Kennedy vs. O'Brien, 2 E. D. Smith, 41.

In the same case, it was held, that no action would lie for an amount proper to be restored, upon the mere decision of the appellate court, before the actual entry of judgment. But, after such judgment, the amount may be recovered, either by proceeding in the suit itself, or by separate action. The remedies are cumulative. Lott vs. Swezey, 29

Barb., 87.

§ 306. Notice of Appeal.

An appeal is taken, by means of this proceeding, as provided for by section 327. It must state the nature of the appeal, and whether taken from the whole or some part of the judgment or order impeached, and, if from part, must specify what part. It must be served upon the adverse party, and also on the clerk with whom the judgment or order is entered.

When taken from the whole of a judgment or order, no special statement will be necessary; it will be sufficient to give the notice in that form.

Nor need any grounds be assigned, even when the appeal is partial. It is enough, if the notice specify what part of the judgment or order is intended to be reviewed. See Wilson vs. Allen, 3 How., 369; 2 C. R., 26 ; 7 L. O., 288.

But the portion intended to be impeached, must be distinctly specified, and the specification must be sufficiently large, to comprehend all provisions capable of being drawn into question on the argument. Great care should be bestowed on framing the notice, in this respect,

as no part of the judgment or order, not actually appealed from, can be reviewed. See Kelsey vs. Western, 2 Comst., 500; Robertson vs. Bullions, 1 Kern., 243. See, however, highly liberal doctrine, as to the power of supplying a defect of that nature, by reference to an under taking served at the same time, People vs. Tarbell, 17 How., 120.

Nor, as above noticed, can any relief, however proper, be given to a party who has not appealed in form. See Rooney vs. Second Avenue Railroad Company, 18 N. Y., 368 (371), and Bell vs. Holford, 1 Duer, 58, cited in last section.

Although power is given, on appeal from a judgment, for the review of collateral orders necessarily affecting it (see section 329), yet such orders must also be appealed from in form, either by the same or by a separate notice, or they cannot be reviewed. See Fry vs. Bennett, 16 How., 385 (391); 7 Abb., 352; 2 Bosw., 684; Hastings vs. McKinley, 3 C. R., 10, and Marquhart vs. La Farge, 5 Duer, 559, also there cited. When notice of appeal is given, to the Court of Appeals, from an order granting a new trial, under the special power conferred by section 11, subdivision 2, it must, as provided by that section, "contain an assent, on the part of the appellant, that, if the order be affirmed, judgment absolute shall be rendered against the appellant." Such assent cannot be qualified, in any manner, or so as to retain the benefit of any provision in the original order, allowing the appellant to take an alternative judgment for a reduced amount. If attempted, the appeal will be bad. Lanman vs. Lewiston Railroad Company, 18 N. Y., 493.

The notice must, as will be seen, be served, both on the adverse party, and on the clerk of the court in which the judgment is entered. If omitted to be served on either, within due time, the defect will be fatal, and is one that cannot be waived. Westcott vs. Platt, 1 C. R., 100; The People vs. Eldridge, 7 How., 108.

Being a proceeding in the court below, it should be there entitled, and should be served upon the attorney, not upon the party. If served on the latter, and he does not appear, so as to give the court jurisdiction, the appeal will be a nullity. The objection, being jurisdictional, is one, too, that, if not waived, may be taken at any time. See Tripp vs. De Bow, 5 How., 114; 3 C. R., 163.

reg

Service on the attorney, may be made by mail, with its usual incidents, where otherwise admissible. Dorlon vs. Lewis, 7 How., 132. But not so as to service on the clerk of the court, to render which ular, the notice must have been actually received by him, within the time limited for appealing. Crittenden vs. Adams, 5 How., 310; 3 C. R., 145; 1 C. R. (N. S.), 21. The defect was, however, held to be amendable, but, whether the principles there laid down are generally sustainable, to their full extent, is doubtful.

Where an undertaking is requisite, a copy of that undertaking must be simultaneously served. See below, under that head. Where a deposit is made, in lieu of an undertaking, under section 334, notice of that deposit must be similarly given (section 340). Where, under section 337, a conveyance or other instrument has been executed, and deposited with the clerk; or where, under section 336, the subjectmatter of the action has been brought into court, or delivered to a receiver or officer, in lieu of an undertaking, as thereby authorized, notice of a compliance with those directions, must also be given at the same time.

On service of notice of appeal, and of a proper undertaking, the appeal is perfected, and the time within which the return of the court below must be filed, commences to run, without regard to any subsequent justification of the sureties. Thompson vs. Blanchard, 2 Comst., 561; 4 How., 210.

An admission of due service, waives all objections, even that of a notice not having been given in due time. Struver vs. Ocean Insurance Company, 2 Hilt., 475; 9 Abb., 23.

An appeal, taken by service of the notice on the same day on which the judgment was entered, and before the hour when the costs were adjusted and the judgment-roll filed, was decided to be good, in Blydenburgh vs. Cotheal, 4 Comst., 418; 5 How., 200; 3 C. R., 216: "As a general rule, the court does not inquire into fractions of a day, except for the purpose of guarding against injustice."

But, if taken in anticipation of such entry, describing the judgment as entered on the day of trial, it will be clearly irregular. Bradley vs. Van Zandt, 3 C. R., 217.

Where the appeal is taken to the general term of the same court, a simple notice will be sufficient, though, of course, no stay will be effected. But, where the appeal is from a lower to a higher jurisdiction, it will be ineffectual for any purpose, unless the notice be accompanied by the undertaking provided for in section 334. See also section 345. Vide Cushman vs. Martine, 13 How., 402; 6 Duer, 660.

A notice, when served, is amendable, in respect of defects which do not destroy its substantial character. Fry vs. Bennett, 16 How., 385 (391); 7 Abb., 352; 2 Bosw., 684. And mere formal errors may be disregarded. The People vs. Tarbell, 17 How., 120; Lake Ontario, Auburn, and New York Railroad Company vs. Marvine, 18 N. Y., 585 (587).

In Sherman vs. Wells, 14 How., 522, it was held that the service of a case and exceptions, might be held as constituting an informal notice of appeal, sufficient to support an amendment, allowing the filing of a formal notice, nunc pro tunc, and this is treated as a settled question in

the first district of the Supreme Court; in Jackson vs. Fassett, 33 Barb., 645; 21 How., 279; 12 Abb., 281. Similar relief was granted by the Superior Court, but upon strict terms, and as going to the extreme verge of judicial discretion, in Jellinghaus vs. The New York Insurance Company, 5 Bosw., 678. In the New York Common Pleas, however, a similar application has been denied, on the general doctrine that the courts have no power to relieve from an omission to appeal, as laid down in Humphreys vs. Chamberlain, 1 Kern., 274; Holmes vs. Woodward, unreported.

As to the power conferred by the concluding clause of section 327, to allow omissions in perfecting an appeal to be corrected, when notice shall have been given in good faith, see Aldrich vs. Ketchum, 12 L. O., 319.

A motion to dismiss an appeal, on the ground of defects in the notice, or on any other technical grounds, cannot be entertained by the court below; it must be made to the appellate tribunal. Bradley vs. Van Zandt, 3 C. R., 217; McMahon vs Harrison, 5 How., 360; Lentilhon vs. The Mayor of New York, 3 Sandf., 721; 1 C. R. (N. S.), 111.

§ 307. Limitations as to Time.

These limitations, as imposed by section 331 and 332, must be carefully observed.

They are, as will appear by a reference to those sections, as follows: 1. An appeal to the Court of Appeals from a judgment, or an appeal to the Supreme Court from the judgment of a court of inferior jurisdic tion, must be taken within two years.

Those two years commence to run from the time when the judgment appealed from was perfected, by filing the judgment-roll. See, however, condition imposed, as to appeals on action commenced in one of the lower jurisdictions, by subdivision 3 of section 11.

2. An appeal to the Court of Appeals, from an order made before judgment, but in effect determining the action, or from one granting or refusing a new trial (see section 11, subdivision 2), must be taken within sixty days. Those sixty days commence, from the time when written notice of such order has been given to the party appealing.

3. But appeals to that court, from final orders, in a special proceeding, or in an action, after judgment (see section 11, subdivision 3), would seem to be entitled to the full period of two years. There is, however, great awkwardness in the framing of section 331, as to this class of orders. The case seems, in fact, not to be provided for, as to appeals from orders, in special proceedings where no judgment exists, and most imperfectly and unsatisfactorily as to orders after judgment.

The