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FORM No. 2072. Another Form - by officer of corporation creditor.13 [Title of court and action.] [Venue.]

I, J. G., president of said [corporation creditor], acknowledge satisfaction of a judgment recovered against [naming debtors; adding, if necessary: who were impleaded with ], in the I Supreme Court of this State), between the said [naming creditor — plaintiff], and the said [defendants), for dollars, damages and costs [payment thereof to said bank having been made by ]. Judgment filed and docketed the day of

, one thousand nine hundred and in the county of . [Date.]

[Signature of], President. [Acknowledgment as under last Form.]

FORM No. 2073. Acknowledgment of satisfaction piece by member of firm of attorneys.

State of New York, La County of

is On the day of one thousand nine hundred and , before me, the undersigned, personally came and appeared , a member of the firm of

the attorneys for the [plaintiff] above named, to me personally known and known to ine to be one of the said attorneys for the plaintiff in the above entitled action, and a member of said firm, and who executed the foregoing instrument, and he acknowledged to me that he executed the same on behalf of the said firm.

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13 Sustained by Booth v. Farmers', etc., Bank, 50 N. Y. 396. It is presumptive evidence of payment with.

out the express acknowledgment of payment inserted as above.

CHAPTER XV.

APPEAL.

FORMS. I. NOTICE OF APPEAL; AND LEAVE. 2092. Certificate of deposit in lieu of 2074. Notice of appeal (general

undertaking on appeal. Form).

2093. Notice of deposit in lieu of un2075–2079. Statements suitable to in

dertaking on appeal.

2094. Waiver of undertaking. sert in foregoing Form. 2080. Order granting leave to appeal

2095. Exception and justification. to Court of Appeals in action

2096. Affidavit to move to dismiss for originating in inferior court.

neglect to give new under2081. Order of Appellate Division, al

taking. lowing appeal and certifying

2007. Notice of motion to dismiss for questions for review.

neglect to give new under. 2082. Order of judge of Court of Ap

taking. peals allowing appeal, after

2098. Order allowing new notice of refusal by Appellate Division.

justification or new undertak2083, Notice of appeal after leave

ing on appeal.

2099. Order dismissing appeal or vagiven, 2084. Order granting heir, executor,

cating stay. etc., of deceased party leave

2100. Affidavit to obtain stay on apto appeal, or to move against

peal from an order or judg. final judgment for error in

ment.

2101. Notice of motion (or order to fact.

show cause) for stay pending II. SECURITY AND STAY.

appeal.

2102. Order for stay pending appeal, 2085. Undertaking for costs on appeal

on giving security. from judgment, or order, to

2103. Order appointing receiver to the Court of Appeals.

pay taxes, etc., pending ap2086. Undertaking to effect stay, on

peal after judgment affecting appeal to Appellate Division

title. or Court of Appeals, from 2104. Affidavit to obtain order to money judgment or order.

mark judgment “lien sus2087. Undertaking to stay, pursuant

pended on appeal.” to order, on appeal from 2105. Consent of sureties annexed money order or judgment

thereto. (including those payable in 2106. Order to show cause why judginstalments, or for alimony,

ment lien should not be sus

pended on appeal. 2088. Undertaking to stay, on appeal 2107. Order releasing real property from a judgment or order for

from judgment lien.
possession of personal prop-
erty.

III. SUBSTITUTION OF PARTIEB. 2089. Undertaking to stay, on appeal

The remedies for substitution, when from judgment for possession

necessary for purposes of appeal, are of real property.

as follows: 2090. Undertaking to stay, on appeal

from judgment in foreclosure, I. Appeal by party taken after his
by one adjudged liable for de. adversary is dead.
ficiency.

(1) Appeal as if he were still liv. 2091. Undertaking, in dower, to pre

ing. Forms 2074-2080. vent stay on defendant's ap (2) Undertaking as in Form 2085. peal from final judgment.

etc.).

(3) Affidavit and order compelling

the substitution of represen. tative. Forms 2108, 2109.

IV. BRINGING OX AND DISMISSING. 2117. Note of issue on appeal. 2118. Notice of argument. 2119. Notice requiring the appellant

to file return. 2120. Notice of motion to dismiss ap

peal. 2121. The same; in Court of Appeals. 2122. Order dismissing appeal.

II. Appeal by representative of party dying before appeal, or by any one not a party who has acquired an interest and is aggrieved. (1) Appeal as if a party. Forms

2074-2080. (2) Move to be substituted, adapt.

ing Forms 1160, etc., by adding an allegation of having taken and perfected an appeal.

III. Application of representative of party dying after anpeal, taken by such party or by his adversary, to be substituted.

AMidavit and order. See Forms 2110-2114 (below).

IV. Disposal of appeal on application of a party where the adverse party has died after appeal, and his representative fails for three months to procure substitution.

Afidavit and order to show cause; see Forms 2115 and 2116 (below).

V. THE DECISION AND JUDGMENT. 2123. Order of affirmance. 2124-2128. Statements suitable to in

sert in foregoing Form. 2129. Order to modify judgment or

order, and affirm as modified. 2130. Judgment upon modification by

Appellate Division. 2131. Order of Appellate Division re

versing a judgment upon

errors of law only. 2132. - upon the facts or upon the

law and the facts. 2133. Judgment of reversal under or

der of Appellate Division, 2134-2138. Statements suitable to be

inserted in foregoing Form. 2138 2139. Order amending Appellate Diri.

sion order so as to show that reversal was on question of

fact. 2140, Order for judgment, on appeal

from a judgment and from

an order for allowance. 2141. Judgment on appeal. 2142. Judgment on dismissal of ap

peal. 2143. Order of reversal of interlocu

tory judgment on demurrer. 2144. Interlocutory judgment of re

versal on demurrer. 2145, Affidavit to enter judgment

upon order of Appellate Divi.

sion on demurrer. 2146. Judgment after failure to an

swer pursuant to leave of Ape pellate Division on reversing order on demurrer.

2109. Affidavit to compel the substi.

tution of representative of de

ceased adverse party. 2109. Order compelling the substitu

tion of representatives of ad.

verse party. 2110, Afidavit to move to substitute

personal representative of

party dying after appeal. 2111. Order substituting personal rep

resentative of party dying

after appeal. 2112. Order of Appellate Division

permitting successor in inter

est to intervene on appeal. 2113. Stipulation for substitution of

heirs and personal representa

tives pending appeal. 2114. Order substituting parties on

appeal by consent. 2115. Affidavit to procure order to

show cause why judgment or order should not be reversed,

etc. 2116. Order to show cause why judg.

ment or order should not be reversed, etc., where party dies after appeal, and no substitution has been had.

VI. RESTITUTION. 2147. Affidavit to obtain restitution

after reversal at Appellate

Division. 2148. Notice of motion for restitution. 2149, Order for restitution (with

award of execution). 2150. Order for restitution of specific

property. 2151. - of fund taken from court,

VII. REARGUMENT. 2152. Order for stay pending motion

for reargument. 2153. The same; another Form. 2154. Notice of motion for reargu

ment on appeal. 2155. Order to show cause, upon ap.

plication for a reargument,

with stay. 2156. Order granting reargument. 2157. Order returning remittitur to

Court of Appeals, and stay

ing action on undertaking. 2158. Order for reargument, and

transferring cause to another
department.

VIIJ. FILING THE BEMITTITUR AND

SUBSEQUENT PROCEEDINGS. 2159. The remittitur. 2160. Notice of filing remittitur, and

settlement of order for judg

ment thereon. 2161. Notice of entry of order on ap

peal remitting cause for fur. ther proceedings, and notice

of hearing thereon.
2162. Order for judgment on remit.

titur.
2163. Judgment on remittitur.

I. NOTICE OF APPEAL; AND LEAVE TO APPEAL.

FORM No. 2074.

Notice of appeal (general form).1 [Title of court appealed from, and action.]

Please take notice, that the above-named plaintiff [or, defendant — naming which if all do not unite] hereby appeals to the Court of Appeals [or, to the Appellate Division of the Supreme Court, for the Department] * from the judgment [or, order]of the Appellate Division of the Supreme Court for the Department [or, of this Court], entered herein in the office of the clerk of the county of [or, of the clerk of the Court], on or about the day of

, 19

is [or, topepartment of the Su

1 Serve copy on attorney for each adverse party, and file copy with clerk with whom judgment or order ap. pealed from is entered. Code Civ. Pro., & 1300.

The right to appeal is not waived by the appellants having obtained, and had inserted in the judgment appealed from, taxable costs and allow ances. Smith v. Havens Relief Fund Soc., 115 App. Div. 185.

2 An appeal will not lie from the determination, which is only the authority or basis of a judgment, but the appeal must be taken from the judgment. See Stevens o. Cent. Nat. Bank, 162 N. Y. 253.

No appeal lies from a decision, un der Code Civ. Pro., 88 1021, 1022, upon which the judgment has been entered ; if such an appeal is included in an appeal from the judgment, the

appeal from the decision will be dis-
missed, with costs. See Rees v. N. Y.
Herald Co., 112 App. Div. 456; Gabay
v. Doane, 66 App. Div. 507, 73 N. Y.
Supp. 381; Schenectady Co. v. Sche-
nectady R. R. Co., 106 App. Div. 336,
94 N. Y. Supp. 401; Wright v. Cha-
pin, 31 Abb. N. C. 137, 74 Hun, 521,
26 N. Y. Supp. 825; Rowe v. Rowe,
103 App. Div. 100, 92 N. Y. Supp.
491. Nor from the order dismissing
the complaint, upon which judgment
of dismissal has been entered. Kelly
v. Theiss, 77 App. Div. 81, 78 N. Y.
Supp. 1050, 12 Anno. Cas. 206. Nor
from a decree of the surrogate entered
upon the order of the Appellate Divi.
sion. Matter of Union Trust Co., 172
N. Y, 494.

3 An appeal will not lie from a judge's order until it is entered. Code Civ. Pro., $ 1304.

) and then

hole thereofd every partia

[further identify it," as thus: whereby it was adjudged that plaintiff recover of defendant the sum of dollars — or, affirming — or, reversing - the final — or, interlocutory — judgment - or, the order — of the Special Term of the Court, entered in this action on the day of

, 19 ] and the said [defendant) appeals from each and every part of said judgment, as well as from the whole thereof. 4a †

[See Forms below.] [Date.]

[Signature and office address of],

Attorney for [defendant-] appellant." To the Clerk of the county of : [or, of the Court). And , Esq., Attorney for (plaintiff-] respondent.

[Address to each adverse party.]5a Forms Nos. 2075–2079.-STATEMENTS SUITABLE TO INSERT IN FORE

GOING FORM.

FORM No. 2075. Appeal from part of a judgment or order.6 [As in last Form to the *, continuing:] so much and such part of the judgment [or, order] of the [or, of this] court, herein entered in the office of the clerk of on the day of , 19, [indicating what part, as thus:] as directs that the order of arrest herein granted be vacated and set aside with dollars costs; but he does not appeal from the terms on which said order is conditioned.

Lerein entered in the order] of the g.] so much and

4 A mistake in the date will not affect, if the determination appealed from is correctly described. See People er rel. Kathan v. County Board, 75 App. Div. 110, 77 N. Y. Supp. 620.

41 If the notice of appeal from a judgment also contains an appeal from an order, as to which the time to appeal has expired, it has been held that the notice may properly be returned, and a motion to compel its acceptance will not be granted. Armstrong v. Heide, 49 Misc. 430. Com pare, however, Ziadi 1. Int. St. Ry. (0., 97 App. Div. 137, 89 N. Y. Supp. 606, holding that the Special Term is without power to set aside a notice of appeal, or to make an order that it stand. If a notice of appeal to the Court of Appeals is returned because of tardy service, the Court of Appeals

will entertain a motion to compel its acceptance, and will not reserve the determination of the question until the argument of the appeal. Wingert v. Krakauer, 180 N. Y. 265.

5 When a statute requires the notice to be subscribed, a failure to do so makes the notice a nullity. Necker v. Nardi, 51 Misc. 1 (under $ 311 of the Municipal Court Act).

5a Including adverse co-defendants, although they have not served a copy of the judgment with notice of entry. Smith . Havens Relief Fund Soc., 115 App. Div. 185.

6 See an extended statement in the notice of appeal of the exact provisions of an order appealed from, the language of which was carefully considered by the court. Ferguson 6. Bruckman, 164 N. Y. 481.

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