allowing the continuance of an action partially abated, and admitting other parties in the place of a deceased plaintiff. St. John vs. Croel, 10 How., 253.

As to an order, striking out part of a pleading, shown to be in fact materials being appealable, see Whitney vs. Waterman, 4 How., 313; Otis vs. Ross, S How., 193; 11 L. O., 343; Trustees of Pen Yan vs. Forbes, 8 How., 285; Cowles vs. Cowles, 9 How., 361, before cited.

An appeal lies from the order of a county judge, vacating his previous order for an arrest, though granted ex parte. Lancaster vs. Boorman, 20 How., 421. See also, as to such a vacatur, granted by the same officer on notice, Rogers vs. McElhone, 20 How., 441; 12 Abb., 292.

It likewise lies from an order, granting a supersedeas of execution against the person, under the powers of the Revised Statutes. Wells vs. Jones, 2 Abb., 20.

Also from an order, awarding process to enforce a judgment. Cruger vs. Douglass, 8 Barb., 81; 2 C. R., 123.

Also from an order, denying a motion that an undertaking given on the arrest of a defendant be delivered up, and an exoneretur entered. Columbus Insurance Company vs. Force, 8 How., 353.

It is clear, therefore, from the above series of decisions that, although the mere exercise of discretion on the part of the single judge is not, as a general rule, reviewable; still, whenever in the exercise of that discretion, any rule of law has been violated, or any existent or acquired legal right of the adverse party interfered with, the order interfering with that right will, in all cases, be appealable; and that the grounds on which the court below has acted, in making the decision sought to be reviewed, will, in many cases, be material to the question of appealability.

(i.) SUBDIVISION 4.-ORDER DETERMINING ACTION.

This provision is in close analogy to subdivision 2 of section 11, giving to the Court of Appeals cognizance of appeals of a similar

nature.

This class of orders are comparatively infrequent, and have not been made the subject of such controversy.

In Quinn vs. Case, 2 Hilt., 467; 9 Abb., 160, an order, denying a motion for leave to serve an answer after default suffered, was held to belong to this class, and to be reviewable as of right.

An order, removing a cause into the Federal courts, was held not to fall within the cognate provision of section 11, above referred to, in Illins vs. New York and New Haven Railroad Company, 3 Kern., 597. Under the same provision, it has been held that an order, vacating judgment on a sham answer, on the ground that, by reason of matter VOL. II.-49

occurring between answer and judgment, the plaintiff's cause of action had ceased to exist, decided the merits, and prevented the entry of a reviewable judgment, and was, as such, appealable. Edson vs. Dillaye, 17 N. Y., 158.

But an order setting aside a judgment for irregularity, and substantially allowing the action to proceed, is not thus reviewable. Jones vs. Derby, 16 N. Y., 242. See also, as to an order granting the statutory new trial in ejectment, Evans vs. Millard, 16 N. Y., 619.

(j.) SUBDIVISION 5.-APPLICATIONS AFTER JUDGMENT.

This provision is, again, in analogy with that contained in section 11, subdivision 3, in relation to the jurisdiction of the Court of Appeals in such cases, with the addition of a formal declaration, implied in the other provision, that the order appealed from must affect a substantial right.

In Heinemann vs. Waterbury, 5 Bosw., 686, an order, requiring the prevailing party to cause a judgment-roll to be filed, was held appealable.

So likewise, as to an order, opening a judgment against the corporation of New York, on application of the comptroller, under the stat utory provisions for that purpose. Joyce vs. Mayor of New York, 20 How., 439; 12 Abb., 309.

So also, as to an order, denying an application to vacate the satisfaction of a judgment. Ward vs. Wordsworth, 1 E. D. Smith, 598.

But the cases under this subdivision, have chiefly arisen, in relation to orders made in supplementary proceedings. As to the appealability of this class of orders, see Пatch vs. Weyburn, 8 How., 163. See also, as to the practice, before the amendment of 1851, Conway vs. Hitchins, 9 Barb., 378.

In O'Neil vs. Martin, 1 E. D. Smith, 404, an order, dismissing sup plementary proceedings, was held appealable, and reversed, on the ground that, on an application of this nature, it was erroneous to inquire into the merits of the judgment, under which they were taken.

So far as an order, made in these proceedings, rests in discretion, as, for instance, the denial of a motion for application of property, and to punish for contempt, the exercise of that discretion will not be reviewed. Vide Joyce vs. Holbrook, 2 Hilt., 94; 7 Abb., 338.

The appeal will only lie at the instance of the party actually ag grieved. Thus, the judgment-debtor himself, cannot review the order of the court, directing the application of moneys by a third party. Foster vs. Prince, 18 How., 258; 8 Abb., 407.

The appeal, in these cases, lies properly in the county of venue of the action, and, when the order is made by a judge of another district, his

order should be entered, and the appeal therefrom heard in the original district. Gould vs. Torrance, 19 How., 560.

In Smith vs. Hart, 11 How., 203, it was held that the order of a county judge, in proceedings originating in a justice's or county court, was not reviewable, on appeal to the Supreme Court, under this section, as it then stood, but this difficulty seems now to be provided for, by the clause added in section 344, on the amendment of 1860, above noticed.

(k.) SPECIAL PROCEEDINGS.

Under chapter 270 of 1854, p. 592, orders in special proceedings, are reviewable on appeal, as if made in an ordinary action. Before the passage of that statute, they could not, it seems, be reviewed. In re Fort Plain and Cooperstown Railway Company, 3 C. R., 148.

The detailed consideration of these cases lies out of the province of the present work, but the same general principles hold good, as to the practice upon such appeals, when taken, and the extent to which the action of the special term will be reviewed.

As to the action of the general term, in street-opening cases, not being further reviewable, see Matter of Canal and Walker Streets, 2 Kern., 406. See likewise, generally, New York Central Railroad Company vs. Marvin, 1 Kern., 276.

An order, granting leave to sue the estate of a lunatic, was held appealable, and was modified, in Williams vs. Estate of Cameron, 26 Barb., 172.

(2.) NEW YORK COMMON PLEAS.-PRACTICE AS TO Rehearing.

The orders of the single judge may, in this tribunal, be reviewed, by means of a certificate for rehearing, though not, in strictness, appealable. See rule of the 22d of March, 1851, above cited in section 313. The same practice had been before decided to be admissible, in Perry vs. Moore, 2 E. D. Smith, 32; 3 C. R., 221. But its adoption has hitherto been confined to the court in question, and, even in that tribunal, it is treated strictly as a matter of favor.

Where, on the contrary, an order is appealable, under any of the subdivisions of 1849, the review is a matter of right, and the rule is wholly inapplicable; nor need any certificate be obtained, as there prescribed. See Matthews vs. Jones, 1 E. D. Smith, 429; Quinn vs. Case, 2 Hilt., 467; 9 Abb., 160.

Where the order of the single judge rests, in any manner, in the exercise of pure discretion, not involving any strict legal right, it may be reviewed in this tribunal, on such a certificate, but, without one, an appeal will be unavailable.

See, as to an order opening a judgment by default, as matter of favor, Mead vs. Mead, 2 E. D. Smith, 223; Churchill vs. Mallison, 3 Hilt., 70; or, opening an inquest, Muldenor vs. McDonogh, 2 Hilt., 46. See also, as to an order extending the time to make a motion, Hunt vs. Bennett, 2 E. D. Smith, 53. As to the refusal of leave to amend, Hatfield vs. Secor, 1 Hilt., 535. As to the imposition of costs, on granting such leave, Smith vs. Dodd, 4 E. D. Smith, 643. As to an order of reference, in a case, referable in its nature, Ubsdell vs. Root, 1 Hilt., 173; 3 Abb., 142.

In cases of this description, the certificate is usually applied for, and obtained from the judge, at the time of the decision of the motion, or immediately afterwards, whilst the subject is fresh in his mind. The application is, of course, strictly ex parte, and founded upon the papers already before him, nor is any special form of certificate prescribed. The course of practice on that certificate, if obtained, is plainly prescribed by the rule.

§ 316. Course of Practice on Appeal from Order.

(a.) ENTRY OF ORDER.

Before it can be properly appealed from, an order must be entered with the clerk, as to which special provision is made by section 350, as regards ex parte orders, giving the aggrieved party the right to compel that entry. See also Savage vs. Relyea, 3 How., 276; 1 C. R., 42; Nicholson vs. Dunham, 1 C. R., 119. See also, as to the power of the unsuccessful party to enter the order himself, Peet vs. Cowenhoven, 14 Abb., 56 (61).

As to the propriety of entering an order in supplementary proceedings, in the county of venue of the action, when made by a judge of another district, see Gould vs. Torrance, 19 How., 560.

(b.) NOTICE, &c.

An appeal from an order is brought on, upon notice, analogous, in all respects, to that on appeal from a judgment (Code, section 327), and it must be brought, within thirty days after written notice of the order appealed from (Code, section 332). See these subjects above considered, in sections 305 and 306. No formal return or certificate by the clerk is necessary.

(c.) SECURITY NOT ESSENTIAL.-STAY OF PROCEEDINGS, HOW OBTAINED. The Code makes no provision, and, at first, considerable discussion arose, upon this subject. The proposition that, where no stay is asked for, security need not be given, on an appeal from an order, is now,

however, conclusively established. See Nicholson vs. Dunham, 1 C. R., 119; Beach vs. Southworth, 6 Barb., 173; 1 C. R., 99; Allen vs. Johnson, 2 Sandf., 629; Stone vs. Carlan, 2 Sandf., 738; 3 C. R., 103; Em erson vs. Burney, 6 How., 32; 1 C. R. (N. S.), 189; Dorlon vs. Lewis, 7 How., 132; Ten Broeck vs. Hudson River Railroad Company, 7 How., 137; Reynolds vs. Freeman, 4 Sandf., 702; Bacon vs. Reading, 1 Duer, 622; 11 L. O., 122. See also, as to appeals in special proceedings, under the statute of 1854, Boyd vs. Bigelow, 14 How., 511.

It has been laid down, in several cases, that the mere taking of such an appeal operates, per se, as a stay of proceedings under the order appealed from. See Emerson vs. Burney, 6 How., 32; 1 C. R. (N. S.), 189; Trustees of Penn Yan vs. Forbes, 8 How., 285; Cook vs. Pomeroy, 10 How., 103; Stewart vs. Saratoga and Whitehall Railroad Company, 12 How., 435. See, however, Valton vs. National Loan Fund Life Assurance Society, 19 How., 515.

This conclusion has, however, been combated, and may be considered as completely overruled, by the following series of decisions, holding to the contrary, and that, if a stay of proceedings be desired, it will be necessary to apply to the court for a special order upon the subject: Dorlon vs. Lewis, 7 How., 132; Ten Broeck vs. Hudson River Railroad Company, 7 How., 137; Story vs. Duffy, 8 How., 488; Winterhoff vs. Lugat, 13 Abb., 182; Bacon vs. Reading, 1 Duer, 622; 11 L. O., 122; Hibbard vs. Burwell, 11 How., 572; Johnson vs. Scriven, 3 Abb., 208; Hicks vs. Smith, 4 Abb., 285; Ferry vs. Bank of Central New York, 9 Abb., 100; Genin vs. Chadsey, 12 Abb., 69; O'Neil vs. Martin, 1 E. D. Smith, 404.

Such an order cannot, it would seem, be made ex parte by a judge at chambers, as, being for an indefinite period, it would fall under the prohibition in section 401, subdivision 6. Vide Lottimer vs. Lord, + E. D. Smith, 183; Bank of Genesee vs. Spencer, 15 How., 14. But, where made by the court, it has been held to be valid. Vide Harris vs. Clark, 10 How., 415.

When applied for in the usual manner, on motion, the court has full power to grant a stay of this description, and will, as a general rule, exercise that power, in all proper cases, upon proper terms, which will be imposed according to the requirements of the case, and will, as a general rule, involve the giving of adequate security, where that requirement can properly be insisted on. Vide Mathews vs. Jones, 1 E. D. Smith, 429 (431); Johnson vs. Scriven, 3 Abb., 208; Genin vs. Chad sey, 12 Abb., 69. Or the motion may be partly granted, and partly denied. See Rogers vs. McLean, 10 Abb., 458; Tiers vs. Car nahan, 3 Abb., 69.

But the mere giving of security will not effect a stay, on appeals