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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 [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

1.

Judgment filed and docketed the thousand nine hundred and

[Date.]

day of

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in the county of

[Signature of], President.

[Acknowledgment as under last Form.]

FORM No. 2073.

one

Acknowledgment of satisfaction piece by member of firm of attorneys.

State of New York, ss:

County of

On the

day of

one thousand nine hundred and

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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.

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. 2074. Notice of appeal (general Form).

2075-2079. Statements suitable to insert in foregoing Form. 2080. Order granting leave to appeal to Court of Appeals in action originating in inferior court. 2081. Order of Appellate Division, allowing appeal and certifying questions for review. 2082. Order of judge of Court of Appeals allowing appeal, after refusal by Appellate Division. 2083. Notice of appeal after leave given.

2084. Order granting heir, executor, etc., of deceased party leave to appeal, or to move against final judgment for error in fact.

II. SECURITY AND STAY. 2085. Undertaking for costs on appeal from judgment, or order, to the Court of Appeals.

2086. Undertaking to effect stay, on appeal to Appellate Division or Court of Appeals, from money judgment or order. 2087. Undertaking to stay, pursuant to order, on appeal from money order or judgment (including those payable in instalments, or for alimony, etc.).

2088. Undertaking to stay, on appeal from a judgment or order for possession of personal property.

2089. Undertaking to stay, on appeal from judgment for possession of real property.

2090. Undertaking to stay, on appeal from judgment in foreclosure, by one adjudged liable for deficiency.

2091. Undertaking, in dower, to prevent stay on defendant's appeal from final judgment.

2092. Certificate of deposit in lieu of undertaking on appeal. 2093. Notice of deposit in lieu of undertaking on appeal.

2094. Waiver of undertaking. 2095. Exception and justification. 2096. Affidavit to move to dismiss for neglect to give new undertaking.

2097. Notice of motion to dismiss for neglect to give new undertaking.

2098. Order allowing new notice of justification or new undertaking on appeal.

2099. Order dismissing appeal or vacating stay.

2100. Affidavit to obtain stay on appeal from an order or judg

ment.

2101. Notice of motion (or order to show cause) for stay pending appeal.

2102. Order for stay pending appeal, on giving security.

2103. Order appointing receiver to pay taxes, etc., pending appeal after judgment affecting title.

sus

2104. Affidavit to obtain order to mark judgment "lien pended on appeal." 2105. Consent of sureties annexed thereto.

2106. Order to show cause why judgment lien should not be suspended on appeal.

2107. Order releasing real property from judgment lien.

III. SUBSTITUTION OF PARTIES. The remedies for substitution, when necessary for purposes of appeal, are as follows:

I. Appeal by party taken after his adversary is dead.

(1) Appeal as if he were still liv
ing. Forms 2074-2080.
(2) Undertaking as in Form 2085.

(3) Affidavit and order compelling the substitution of representative. Forms 2108, 2109.

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

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

Affidavit 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.

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

2108. Affidavit to compel the substitution of representative of deceased adverse party. 2109. Order compelling the substitution of representatives of adverse party.

2110. Affidavit to move to substitute personal representative of party dying after appeal. 2111. Order substituting personal representative of party dying after appeal.

2112. Order of Appellate Division permitting successor in interest to intervene on appeal. 2113. Stipulation for substitution of heirs and personal representatives 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.

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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]3 of the Appellate Division of the Supreme Court for Department [or, of this Court], entered herein in the [or, of the clerk of the day of

the
office of the clerk of the county of

Court], on or about the

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 v. Cent. Nat. Bank, 162 N. Y. 253.

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

19

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appeal from the decision will be dismissed, 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. Schenectady R. R. Co., 106 App. Div. 336, 94 N. Y. Supp. 401; Wright v. Chapin, 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 Division. 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.

[further identify it, as thus: whereby it was adjudged that plaintiff recover of defendant the sum of

dollars

ingor, reversing the final or, interlocutory -or, the order of the Special Term of the tered in this action on the

day of

said [defendant] appeals from each and every ment, as well as from the whole thereof.4 +

[See Forms below.] [Date.]

or, affirmjudgment Court, en

19 and the

, 19

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part of said judg

[Signature and office address of], Attorney for [defendant-] appellant.5 : [or, of the

To the Clerk of the county of

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Court].

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 herein entered in the office of the clerk of

day of

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[or, of this] court,

on the

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.

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

4a 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. Compare, however, Ziadi r. Int. St. Ry. Co., 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 t. 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 v. Havens Relief Fund Soc., 115 App. Div. 185.

6 See an extended statement in the notice of appeal of the exact provi sions of an order appealed from, the language of which was carefully considered by the court. Ferguson 1. Bruckman, 164 N. Y. 481.

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