FORM No. 2076.

Appeal from judgment, and order made after entry of judgment denying motion for new trial, after trial by jury.7

day of

[As in Form 2074 through description of judgment appealed from, continuing:] and from the order entered herein on the 19, denying the [defendant's] motion for a new trial on the minutes, and from each and every part of said judgment and order.s

FORM No. 2077.

Stipulation for judgment absolute on appealing to Court of Appeals from order granting new trial.9

[Insert at end of Form No. 2074 after the :] And the abovenamed [plaintiff] and appellant hereby stipulates and agrees that if the said order of the Appellate Division be affirmed, judgment absolute shall be rendered against him in favor of the abovenamed [defendant] and respondent.

7 If the order is entered before entry of judgment, it may be reviewed as an intermediate order, if specified as in Form 2078. See notes to that Form.

$ Unless an appeal from the order is included, the weight of evidence or amount of verdict will not be considered. See Mollineaux r. Clapp, 99 App. Div. 543, 91 N. Y. Supp. 880; Prager r. Schafuss, 51 Misc. 647. The Appellate Division. on an appeal from the judgment alone, can view only the questions of law presented by exceptions. Alden v. Knights of Maccabees, 178 N. Y. 535; Perry r. Village of Potsdam, 106 App. Div. 297, 94 N. Y. Supp. 683.

re

If the order is not entered until the time to appeal from the judgment has expired, an appeal will lie from the order. Howe v. Noyes, 48 Misc. 356, 95 N. Y. Supp. 542; Whitman v. Johnson, 10 Misc. 725, 31 N. Y. Supp. 1009.

9 N. Y. Code Civ. Pro., § 190, subd. 1: Lane r. Wheeler, 101 N. Y. 17; Wilmore . Flack, 96 id. 513, 6 Civ. Pro. Rep. (Browne) 191, 202; Mott r. Lansing, 5 Lans. 516. The Appellate Division cannot dispense with the stipulation by certifying questions. N. Y. C. & H. R. R. R. Co., v. State,

166 N. Y. 286; Mundt v. Glokner, 160 id. 571. In the absence of the stipulation the appeal will be dismissed. Matter of Valentine, 136 id. 623.

Such an appeal can be taken within sixty days after entry of the judgment of reversal, although the order of the Appellate Division and notice of entry were previously served. Wingert . Krakauer, 180 N. Y. 265.

Relief from the stipulation will not be granted, after the appeal has been heard and decided. See Williams v. Lindblom, 143 N. Y. 675. But may be granted on terms before the hearing of the appeal. See Caldwell v. Mut. Reserve, etc., Assoc., 169 id. 576.

Where the Appellate Term orders a new trial, on appeal from the New York City Court, an application for leave to appeal to the Appellate Division must be accompanied by a stipu lation for judgment absolute. Code Civ. Pro., 3191. On allowing an appeal from an order granting a new trial on appeal from a municipal court judgment, the Appellate Term may require a stipulation for judg ment absolute, as a condition; otherwise no stipulation need be given. Code Civ. Pro., § 1344; Hart r. North Germ.-Lloyd Steamship Co., 108 App. Div. 279, 95 N. Y. Supp. 733.

FORM No. 2078.

Review of intermediate order or interlocutory judgment on appeal from final judgment.10

[Insert at the end of Form No. 2074, after the i:] And appellant intends to bring up for review upon such appeal the interlocutory judgment entered herein the day of [identify its character]" and the order entered the

19 [striking out the second defense from the answer

FORM No. 2079.

Where original order was resettled.12

From the order entered herein on the

, resettling the order entered herein on the

19, and from each and every part thereof.

FORM No. 2080.

Order granting leave to appeal to Court of Appeals in action originating in

inferior court.13

At a term of the Appellate Division [etc.; as in Form 820, p. 1175 of this volume].

On reading and filing the [defendant's] notice of motion for leave to appeal to the Court of Appeals from the judgment [or,

order] of this court, entered on the

and on reading and filing the affidavit of Y. Z. [defendant], verified the day of 19 ; and on reading the printed case upon which the appeal to this court was heard; and after hearing [or, said motion having been submitted by] T. Z., on behalf of the defendant, and A. T. on behalf of the plaintiff; and it appearing to the court that a question of law is involved which ought to be reviewed by the Court of Appeals; 15 now on motion of T. Z., attorney for the defendant, it is unanimously

CERTIFIED, that a question of law is involved which in the opinion of this court ought to be reviewed by the Court of Appeals; and it is hereby

ORDERED, that said motion be, and the same is hereby granted, and that the above-named defendants have leave to appeal to the Court of Appeals from the said judgment [or, order] of this

Enter: [signature of presiding judge by initials of name and title.]

FORM No. 2081.

Order of Appellate Division certifying that a question of law has arisen which ought to be reviewed, allowing appeal, and certifying questions.16

[Title.]

At a term of the Appellate Division [etc., as in Form 820, p. 1175 of this volume].

The defendants [names, if some only appeal] having moved for leave to appeal to the Court of Appeals, from the order of this court entered herein on the

day of

19

affirming the interlocutory judgment heretofore made and entered herein on the

day of

the appeal must be obtained. Jaeger v. Koenig, 67 App. Div. 552, 73 N. Y. Supp. 907. Since the appeal in such case is to be allowed "by the justices," each justice, or a majority, must separately sign the order allowing the appeal. Harrison v. Weir, 68 App. Div. 25, 73 N. Y. Supp. 1119. The appeal is from the determination of the Appellate Term. Lesster v. Lawyers' Surety Co., 50 App. Div. 181, 63 N. Y. Supp. 804. No question can be certified. O'Rourke v. Feist, 42 App. Div. 136, 59 N. Y. Supp. 157. 14 The leave must be granted at the same term which rendered the determination, or the next term after judg ment is entered. Code Civ. Pro.,

19 and said motion hav

§ 191, subd. 1. An appeal from an
order will lie within sixty days from
the granting of leave. Porter v.
Intern. Bridge Co., 163 N. Y. 79.
15 Bastable v. City of Syracuse, 72
N. Y. 64.

15a By analogy no questions need be certified under Code Civ. Pro., § 191, subd. 1, since none are required under subd. 2, where the language is identical. See note 17 to Form 2081.

16 Code Civ. Pro., §§ 190, 191. The notice of motion for leave must state the questions of law definitely and concisely, or the motion will be denied. Harraun v. Brush Elec. L. Co., 14 App. Div. 19, 43 N. Y. Supp. 1155.

ing come on to be heard at a term of this court, and after hearing A. S. N. for the motion, [and no one appearing in opposition thereto;]

day of

Now, on reading and filing the affidavit of A. S. N., verified on the , 19, and the notice of this motion with admission of service thereon, and on reading the record on appeal herein to this court, and the order of this court made and entered herein on the day of 19, affirming said interlocutory judgment; and after due deliberation had, it ap pearing to our satisfaction that a question of law has arisen which ought to be reviewed by the Court of Appeals; it is, on motion of A. T., attorney for the said defendants, unanimously

CERTIFIED, that a question of law has arisen which in the opinion of this court ought to be reviewed by the Court of Ap peals; and it is

ORDERED, that leave to appeal to the Court of Appeals from said order of affirmance of this court be and the same hereby is granted; and it is further

ORDERED, that the questions certified" to the Court of Appeals be and hereby are stated as follows:

[State the questions of law, separately, and so as to permit an affirmative or negative answer.]18

FORM No. 2082.

Order of judge of Court of Appeals allowing appeal, after refusal by Appellate Division.19

17 No questions need be specified when the appeal is from a judgment of affirmance in the actions specified in Code Civ. Pro., § 191, subd. 2; Fisher Co. v. Woods, 187 N. Y. 90; Young . Fox, 155 N. Y. 615; Kurz v. Doerr, 180 id. 88. Nor is the appeal restricted to such questions as may be certified. Com. Bank v. Sherwood, 162 N. Y. 310. The appeal presents the exceptions at the trial only. Rider r. Syr. Rap. Trans. Co., 171 N. Y. 139.

The question certified will not be considered if the determination below rested in the court's discretion. See

Lewin v. Lehigh Valley R. R. Co., 169
N. Y. 336.

18 Devlin v. Hinman, 161 N. Y. 115. Otherwise the Court of Appeals will not entertain the appeal. Malone r. St. Peter, etc., Church, 172 N. Y. 269. See, generally, Neresheimer r. Smyth, 167 N. Y. 202, and cases cited.

19 Under N. Y. Code Civ. Pro., § 191, subd. 2. The affidavit upon application for the order should set forth the refusal of the Appellate Division to allow the appeal.

No question need be certified in the order, and the appeal brings up all the exceptions as upon an appeal from any judgment.

herein to the Appellate Division of the Supreme Court for the Department as well as upon all the papers and proceedings herein, I certify that in my opinion a question of law is involved which ought to be reviewed by the Court of Appeals, and that the [defendant-appellant] should have and is hereby granted leave to appeal to the Court of Appeals from [state what, as in a notice of appeal.]

[Date.]

[Signature],

Judge of the Court of Appeals.

FORM No. 2083.

Notice of appeal to Court of Appeals, after leave given.20

Supreme Court; County of

[Title.]

Please take notice that, pursuant to the leave granted21 by the Appellate Division, for the

Department, in the above

day of

19 ,

entitled action, in an order duly made, and filed in the office of the Clerk of that Court on the the above-named defendant hereby appeals to the Court of Appeals [continue as in Form 2074.]22

FORM No. 2084.

Order granting heir, executor, etc., of deceased party leave to appeal, or to move against final judgment for error in fact.23

[Title of action.]

day of

At a Special Term [etc., as in
Form 820, p. 1174].

On reading and filing the affidavit of M. N., verified the 19 whereby it appears that the above-named [the deceased], being entitled to appeal from the judgment [or, from the order] of this court herein, which was entered on the

[defendant] Y. Z.

day of

19 [or, being entitled to move to set aside the judgment entered herein on the 19 for alleged error in fact], died on and before the expiration of

the

day of
day of

19

20 If from an order, the notice is in time if served within sixty days from the granting of leave. Porter v. Intern. Bridge Co., 163 N. Y. 79.

21 The granting of leave must precede the appeal. See Guar. Tr., etc., Co. v. Phil., etc., R. R. Co., 160 N. Y. 1; Steamship Richmond Hill v. Seager, 160 id. 312.