case of such an order, made more than two years after the filing of the judgment-roll, a contingency by no means impossible, may be instanced as an example of this imperfection.

4. Appeals to the general term of the same court, whether from a judgment or from an order, must be taken within thirty days. Those thirty days commence, from the time when written notice of such judgment or order has been given to the party appealing.

No written notice is requisite to set the time running, in the first of the above four classes. The third of them seems unprovided for. The limitation is clearly two years, but the section does not provide from what time those two years are to run. There is no judgmentroll in either case, consequential upon the order appealed from; and to hold that the time for appealing from an order, made in an action, after judgment, runs, not from any date having reference to the making of that order, but from the filing of the original judgment-roll in the action, might possibly involve a total failure of the rights to appeal at all.

A reasonable construction would be that, whether the statute requires it in terms or not, written notice of such an order ought, in all cases, to be given, and that the time of limitation should run from the service of such notice, as in classes 2 and 4 of the above.

To set the time running, in those cases where such a notice is requisite, the giving of such notice must be actual, by. due service of it in writing, or it will be wholly ineffectual for that purpose. An omission to make such service will amount, in fact, to an indefinite extension of the adversary's time to appeal.

Such notice cannot be given at all by anticipation, nor unless the judgment, or order, an appeal from which is sought to be limited, has, at the time, been actually perfected, by entry and filing of the judgment-roll in the former, or by entry of the order in the latter case. See Fry vs. Bennett, 16 How., 385; 7 Abb., 352; 2 Bosw., 684. See also Leavy vs. Roberts, 2 Hilt., 285; 8 Abb., 310; Sherman vs. Wells, 14 How., 522 (527); Bank of Geneva vs. Hotchkiss, 5 How., 478; 1 C. R. (N. S.), 153; McMahon vs. Harrison, 5 How., 360; Bradley vs. Van Zandt, 3 C. R., 217. And a stay of proceedings before judgment will prevent such a notice, or will render it irregular, if actually given pending such stay. Bagley vs. Smith, 2 Sandf., 650. But a stay after judgment has been held not to have any effect as an extension. Renouil vs. Harris, 2 Sandf., 641; 2 C. R., 71. Unless such notice be regularly served, and regular in itself, no amount of knowledge of the judgment or order, on the part of the intended appellant, will avail to set the time running. The proceeding is in derogation of a right, and the party seeking to limit

that right on the part of his adversary, will be held to strict practice. Fry vs. Bennett, 16 How., 385; 7 Abb., 352; 2 Bosw., 684; Forks vs. Peck, 17 How., 192; Staring vs. Jones, 13 How., 423. Such notice has been held necessary, even when the appeal is taken from a judg ment or order entered by the appellant himself. Rankin vs. Pine, 3 Abb., 309.

Even where an order, after entry, has been resettled, a fresh copy must be served, and the time to appeal will not commence to run until such latter service. Bowman vs. Earle, 3 Duer, 691.

If any delay take place in the entry of judgment, the party desiring to appeal may compel the other, by motion, to perfect his judgment; and his proper and only course will be to make an application for that purpose. This view is distinctly held in the cases of The Bank of Geneva vs. Hotchkiss, and McMahon vs. Harrison, above cited; and also in Lentilhon vs. The Mayor of New York, 3 Sandf., 721 ; 1 C. R. (N. S.), 111. See also Code, section 350, as to the power of a party desiring to appeal from an order made at chambers, to require it to be entered with the clerk for that purpose.

The period from which an appeal from a judgment to the higher jurisdiction commences to run, is now clearly fixed by section 331. Before the amendment of 1858, when it stood "within two years after the judgment," there was a good deal of discussion upon the question. The preponderance of decisions was in favor of the doctrine that such time ran from the time that the judgment was pronounced, without regard as to whether it was or was not perfected. See Bank of

Geneva vs. Hotchkiss, 5 How., 478; 1 C. R. (N. S.), 153; Wells vs. Danforth, 7 How., 197; Woollen Manufacturing Company vs. Townshend, 1 C. R. (N. S.), 415. By these, Bentley vs. Jones, 4 How., 335; 3 C. R., 37; Childs vs. Geraghty, 8 L. O., 172; and Renouil vs. Harris, 2 Sandf., 641; 2 C. R., 71, were so far overruled. See also Church vs. Rhodes, 6 How., 281.

Considerable discussion has arisen upon the point, as to whether it is or is not within the power of the court, as such, to enlarge the time within which an appeal can be taken; a judge at chambers is clearly prohibited from doing so, by the express terms of section 405. That power is strongly asserted, as being conferred by the terms of section 173, in the following cases: Crittenden vs. Adams, 5 How., 310; 3 C. R., 145; 1 C. R. (N. S.), 21; Seeley vs. Pritchard, 12 L. O., 245; 3 Duer, 669; Haase vs. New York Central Railroad, 14 How., 430; Toll vs. Thomas, 18 How., 324; Traver vs. Silvernail, 2 C. R., 96.

The contrary proposition, i. e., that the limitation is positive, and that the court has no power to relieve from the omission, is maintained in Enos vs. Thomas, 5 How., 361 (Parker, J., dissenting, 367); Humphrey

319;

vs. Chamberlain, 1 Kern., 274; Wait vs. Van Allen, 22 N. Y., Marston vs. Johnson, 13 How., 93; Rowell vs. McCormick, 5 How., 337 (339); Lindsley vs. Almy, 1 C. R. (N. S.), 139; The People vs. Eldridge, 7 How., 108; Sherman vs. Wells, 14 How., 522; Fry vs. Bennett, 16 How., 385; 7 Abb., 352; 2 Bosw., 684; Hoffman, J., dissenting. See also, as to appeals in justices' courts, De la Figaniere vs. Jackson, 4 E. D. Smith, 477; 2 Abb., 286.

The following cases, holding to the same effect, were decided under the Code of 1848, before the extensive power of amendment, as conferred by section 173, was inserted, and they do not, therefore, touch the doctrine, as laid down in Crittenden vs. Adams, and that class of cases: Westcott vs. Platt, 1 C. R., 100; Schermerhorn vs. The Mayor of New York, 3 How., 254; Burch vs. Newberry, 3 How., 271; Wilson vs. Onderdonk, 3 How., 319; 1 C. R., 64; Sheldon vs. Barnard, 3 How., 423; Purdy vs. Harrison, 1 C. R., 54; Allen vs. Ackley, 4 How., 5; Renouil vs. Harris, 2 Sandf., 641; 2 C. R., 71.

The opinions in Crittenden vs. Adams, and the other cases holding the same doctrine, enter very fully into the question, asserting the undiminished power of the court in this respect. They assert also, and such, on examination, will appear to be the case, that Humphrey vs. Chamberlain, the leading case to the contrary, is obiter dictum on this point, nor was section 173 noticed. See Fry vs. Bennett, 16 How., 385 (397, per Hoffman, J.). The same may be said of Wait vs. Van Allen; Rowell vs. McCormick; and Sherman vs. Wells. Lindsley vs. Alney, and The People vs. Eldridge, are grounded expressly on the decision in Enos vs. Thomas; and Marston vs. Johnson, and Fry vs. Bennett, on that in Humphrey vs. Chamberlain.

This conflict of authority seems still to leave the question in some doubt, but the more liberal cases all agree that the power, if existent, as there asserted, is one that should be sparingly and cautiously exercised.

And, where any step has been actually taken, for the purpose of appealing in good faith, or amounting to the service of notice, however informal, the court has the power of supplying the defect, by the allowance of an amendment nunc pro tunc, under the authority specially conferred by section 327, and the general powers of section 173. See Lake Ontario, Auburn, and New York Railroad Company vs. Marvine, 18 N. Y., 585 (587); Aldrich vs. Ketchum, 12 L. O., 319; Fry vs. Bennett, 16 How., 385; 7 Abb., 352; 2 Bosw., 684; Mallory vs. Wood, 14 How., 67 (69); 3 Abb., 369; 6 Duer, 657; Haase vs. New York Central Railroad Company, 14 How., 430; Sherman vs. Wells, 14 How., 522; Enos vs. Thomas, 5 How., 361 (366); 1 C. R. (N. S.), 67; Crittenden vs. Adams, 5 How., 310; 3 C. R., 145; 1 C. R. (N. S.), 21; VOL. II.-46

Seeley vs. Pritchard, 12 L. O., 245; 3 Duer, 669. See likewise Church vs. Rhodes, 6 How., 281; Jellinghaus vs. The New York Insurance Company, 5 Bosw., 678.

But an omission to obtain leave from the general term of the Supreme Court, to appeal further to the Court of Appeals, in an action originating in a justice's court, has been held not to be a defect of the above description, and to be incurable. Wait vs. Van Allen, 22 N. Y., 319.

The objection that an appeal has not been taken in due time, is capable of waiver, and cannot be taken, where due service of notice has been admitted. Struver vs. Ocean Insurance Company, 2 Hilt., 475; 9 Abb., 23.

§ 308. Security.

The giving of security is, unless waived, an essential prerequisite to the validity of an appeal to the Court of Appeals, whether from a judg ment or an order; and likewise, on an appeal to the Supreme Court from the judgment of an inferior court.

An appeal, from the decision of a single judge, to the general term of the same court, is, however, maintainable in itself, without any security whatever. See Parsons vs. Suydam, 4 Abb., 134; Dorlon vs. Lewis, 7 How., 132; Ten Broeck vs. Hudson River Railroad Company, 7 How., 137. Before the amendment of 1851, this was otherwise, as regards appeals from judgments. Under chapter 270 of 1854, p. 592, appeals in special proceedings, are placed on substantially the same footing, in this respect, as those in ordinary actions.

But, in no case, will an appeal, when taken, stay the adversary's proceedings, unless upon security duly given, or special order of the court. This rule, however, does not necessarily extend to proceedings of a collateral nature. Thus, on application by the judgment-creditor of a testator, to the surrogate, for leave to issue execution, such leave was refused, and proceedings for that purpose stayed, until the decision on an appeal taken by the executor to the Court of Appeals; although the security given on such appeal was only that prescribed by section 334, which, per se, was insufficient to effect a suspension of proceedings. Curtis vs. Stillwell, 32 Barb., 354.

So also, an appeal from judgment of ouster, against a public officer, will not stay measures, on the part of his successor, for obtaining the books, &c., appertaining to the office. The latter are original and independent proceedings. Welch vs. Cook, 7 How., 282.

The people are, however, exempted from the obligation of giving security, and an appeal by them effects, per se, a stay of proceedings. Chapter 37 of 1858, section 2, p. 65. The same is also the case, with

respect to appeals by municipal corporations, unless the court shall otherwise direct. Chapter 262 of 1859, section 1, p. 570. If such security be desired, the appellant should apply for a special order directing it to be given. See same statute, which also prescribes the persons by whom it is to be executed.

If the appellant think fit to pay the judgment, instead of giving security, his right to appeal will not be impaired by such payment, unless it have been made by way of compromise, and agreement to settle the controversy. Wells vs. Danforth, 1 C. R. (N. S.), 415.

Where a deceased defendant had made an arrangement with the plaintiff, under which the latter was entitled to possess himself of the amount of the judgment, on giving counter-security to refund, his executors were, it was held, bound to carry that arrangement out, and were debarred from giving the ordinary security, a stay of execution being refused. Mills vs. Thursby (No. 6), 11 How., 124.

Where, at the hearing, the respondent verbally agreed to waive security, and, on an appeal being taken, omitted to object at the time, it was considered that he was precluded from taking the objection, at a later stage of the proceeding. Lentilhon vs. Mayor of New York, 3 Sandf., 721; 1 C. R. (N. S.), 111.

(a.) UNDERTAKING UNDER SECTION 334.

This security, which is essential to the validity of all appeals from an inferior to a superior jurisdiction, merely provides for payment to the appellant, if successful, of his costs and damages, incident to the appeal itself.

If an appeal be taken from two separate orders, two separate securities must be given. A single undertaking, in the sum of $250, though in terms embracing both, will be insufficient. Schermerhorn vs. Anderson, 1 Comst., 430; 2 C. R., 2. But, where a judgment is single, only one undertaking will be requisite, though it direct the payment of different sums to different defendants. Smith vs. Lynes, 2 Comst., 569; 4 How., 209; 2 C. R., 138.

By the terms of the section, a deposit may be made, instead of giving security. But, when so made, the deposit is at the sole risk of the depositor. Parsons vs. Travis, 5 Duer, 650. And it must remain in court, to abide the ultimate event of the action, should a further appeal be taken to the Court of Appeals, though full security be given on that appeal. Parsons vs. Travis, 2 Duer, 659.

On security being given, either by undertaking or deposit, the appeal will be, primâ facie, perfected, so far as regards the obtaining of a revision, subject, of course, in the former case, to the contingency of the