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 http://www.archive.org/details/cu31924022815751 
 

PRACTICE ON APPEAL 
 
 FROM 
 
 The Municipal and City Courts of the 
 City of New York 
 
 TO THE 
 
 Appellate Term and Appellate Division 
 of the Supreme Court 
 
 BY 
 
 Stanley H. Bevins 
 
 {^Ex-Justice of Sessions; Confidential Clerk, Appellate Term, Supreme Court) 
 Of the New York Bar 
 
 AND 
 
 GusTAvus A. Rogers, LL. B. 
 
 {Formerly Assistant Corporation Counsel of the City of New York) 
 Of the New York Bar 
 
 FIRST EDITION 
 
 NEW YORK 
 
 KNICKEBBOCEER LAW PUBLISHING OO. 
 
 1907 
 
 <e» f 
 
 l^b^^ 
 
First Edition, Febmary, 1907. 
 
 Copyright, 1907, by 
 
 Knickebbockee Law Publishing Co., 
 
 Kew York City. 
 
PREFACE. 
 
 Since the creation of the Appellate Term as the forum for 
 the hearing and determination of appeals from the City and 
 Municipal Courts of the City of New York the work of that 
 Court has been constantly increasing until it has reached very 
 large proportions. The total number of appeals heard in 1899 
 was four hundred ninety-five, while in 1905 one thousand 
 one hundred and sixty-six were heard and determined. The 
 number of calendar motions last year was six hundred and two, 
 and this does not include motions heard and decided, during re- 
 cess. A proportionately similar condition exists in the Appel- 
 late Division of the Second Department where appeals from the 
 Municipal Court are heard. For these reasons there has long 
 been recognized the necessity for a work on the practice in 
 the Appellate Term of the First Department and on practice 
 affecting appeals taken to the Appellate Division in the Second 
 Department. This book has been compiled in the hope that it 
 might supply such a need. 
 
 The object of this work is to afford a guide to the practitioner 
 after an appeal has been taken, rather than to instruct him in 
 the preparation of the record in the court below. (A work of 
 much merit has recently been published, viz. : "Seabury On City 
 Court Practice," to which the reader is referred for the neces- 
 sary steps to be taken in that court for preparing and serving 
 a case on appeal, amendments thereto, etc. It is the intention 
 of the authors of this work to shortly publish a text-book [which 
 is now in the course of preparation] upon "Practice in the 
 Municipal Court of the City of New York," which will contain 
 a reference to the necessary steps to be taken in that Court to 
 perfect an Appeal from the Municipal Court to the appropriate 
 appellate tribunal.) The aim has been to give a ruling case in 
 each instance, and the authors have not confined themselves to 
 
IV PREFACE, 
 
 the decisions of the Appellate Term. Where the principle in- 
 volved has been decided in other courts the case has been cited 
 as an authority for a similar situation that might arise in the 
 Appellate Court. In furtherance of this purpose a large num- 
 ber of important and recent decisions upon questions that have 
 arisen upon appeals and which apply to situations most likely 
 to arise in the appellate court has been cited in this work, while 
 a number of decisions, although in point, have been omitted 
 because in the opinion of the authors they were considered not 
 to be ruling. 
 
 The latest rules governing appeals from the City and Muni- 
 cipal Courts in the City of New York have been inserted, and 
 each rule has been indexed and a head-note given defining the 
 subject matter of the rule. The subject of Practice Motions has 
 been treated of at considerable length and the practice relating 
 thereto laid down and authorities given. 
 
 The work will also be found useful as a ready reference to 
 points that are cited most frequently upon briefs before Appel- 
 late Courts. 
 
 Mr. Stanley H. Bevins, whose long experience in the Appel- 
 late Term has fitted him for the preparation of a work of this 
 kind, has given it to his careful attention, and the practitioner 
 may feel safe in following the suggestions outlined therein. 
 
 The Chapter on Appeals to the Appellate Division of the Sec- 
 ond Department was written by Mr. Francis B. Mullin, of the 
 Brooklyn Bar, to whom the authors of this work hereby make 
 grateful acknowledgment therefor. We also desire to acknowl- 
 edge our indebtedness to the Hon. Samuel Seabury, Justice of 
 the City Court of the City of New York ; Mr. Henry C. Reilly, 
 the efficient clerk of the Appellate Term of the First Depart- 
 ment, and to Mr. Max S. Bevins, of the New York Bar, for 
 many and valuable suggestions. 
 
 Dated New York, February, 1907. 
 
 Stanley H. Bevins^ 
 GusTAvus A. Rogers. 
 
TABLE OF CONTENTS. 
 
 CHAPTER I. 
 
 ORIGIN — JURISDICTION — FORMATION OF — TERMS — WHEN HELD — 
 
 POWERS. 
 
 PAGE 
 
 Sec. 1 — Origin 1 
 
 Sec. 2 — Jurisdiction 3 
 
 Sec. 3 — Formation 5 
 
 Sec. 4 — Terms — ^when and where held .... 5 
 
 Sec. 5 — Powers of 6 
 
 CHAPTER II. 
 
 RULES. 
 
 EuLEl — Terms 7 
 
 EuLE 2 — Calendar and Filing Return .... 8 
 IIule3 — Failure to File Return and Motion for Dismis- 
 sal Therefore 9 
 
 EuLE 4 — Motion for Reargument and Briefs Thereon . 9 
 HuLE 5 — Brief — Form and Filing — Submission of Appeal 
 
 and Argument 10 
 
 KuLE 6 — Default in Appearance — Result and Effect of . 10 
 HuLE 7 — Leave to Appeal to Appellate Division — Motion 
 
 for 10 
 
 EuLE 8 — Motions Generally — Practice upon and Calen- 
 dar of 10 
 
 CHAPTER III. 
 
 APPEALS FROM ORDERS AND JUDGMENTS OF THE CITY COURT. 
 
 Sec. 1 — Appeals from Orders of the City Court . . 13 
 
 Sec. 2 — Appeals from Judgments of the City Court . . 14 
 Sec. 3 — Certification or Waiver of by Stipulation . 14 
 
 T 
 
Tl CONTENTS. 
 
 CHAPTEE IV. 
 
 MUNICIPAIi COURT JUDGMENT OB ORDER — APPEAIi FROM — 
 RETURN — HOW MADE, ETC. 
 
 PAGE 
 Sec. 1 — Keturn on Appeal from Municipal Court . . 20 
 Subdiv. 1 — Mode of Making return generally . 20 
 
 Subdiv. 2 — Practice where complete return cannot be 
 
 made 21 
 
 Sec. 2 — Calendar Practice and Notice of Argument , 22: 
 
 CHAPTEE V. 
 
 MOTIONS. 
 
 Sec. 1 — What Based Upon— Affidavits, etc. ... 23 
 
 Sec. 2 — Term and Eecess Motions Distinguished . • . 24 
 
 Sec. 3 — Term Motions 2S 
 
 Subdiv. 1 — Motion to Dismiss Appeal for Failure to 
 
 Print and Serve Case — Appeal from City Court . 25 
 Subdiv. 2 — Motion to Dismiss Appeal for Failure to 
 
 File Eeturn from Municipal Court Appeal . . 27 
 Subdiv. 3— Motion to Compel Eeturn by Attach- 
 ment 28 
 
 Subdiv. 4 — Eeargument — Motion for ; or for Leave 
 
 to Appeal 30 
 
 (1) Eeargument— when will be Granted . 32 
 
 (2) Eeargument — when denied .... 3a 
 
 (3) Stipulation, Form of — on Application for 
 Leave to Appeal 35. 
 
 Subdiv. 5 — Motion for Eestitution .... 36 
 
 (1) Jurisdiction to Entertain ... 36; 
 
 (2) When it Will be Granted .... 40 
 
 (3) When it Should not be Granted . . 40 
 Sec. 4 — Eecess Motion — What Are Moving Papers Upon 
 
 — How Motion Made 4]^ 
 
 Subdiv. A— To extend the time to comply with the 
 terms or conditions imposed by an order . . 42 
 
CONTENTS. Vii 
 
 PAGE. 
 
 Subdiv. B — To open a default or relieve from neg- 
 lect 43 
 
 Subdiv. C— To Perfect an Appeal when the Notice of 
 Appeal has not been served on all necessary per- 
 sons 43; 
 
 Subdiv. D — To remit return to Lower Court for cor- 
 rection 44 
 
 Subdiv. E — To remit return of "Papers on Appeal" 
 from order of the City Court .... 44 
 
 Subdiv. F — To procure amended return from Mu- 
 nicipal Court 45 
 
 Subdiv. G — Stay of Proceedings pending the ap- 
 peal 4T 
 
 (1) From City Court Order or Judgment . . 47 
 
 (2) From Judgment or Order of the Municipal 
 Court 48 
 
 Sec. 5 — Calendar Practice and Filing of Motion Papers . 51 
 
 CHAPTEE VI. 
 ARGUSIENTS UPON APPEAIi — ^BRIEFS. 
 
 Sec. 1 — Notice of Argument — how served and filed . 52 
 
 Sec. 2 — Briefs — service and filing of .... 53 
 Sec. 3 — Briefs — (a) City Court Briefs, (b) Municipal 
 
 Court Briefs •. . 54 
 
 CHAPTER VII. 
 
 DECISIONS — ORDERS— practice THEREON. 
 
 Sec. 1 — Decisions 56 
 
 Sec. 2— Orders 5& 
 
 Sec. 3 — Practice After Entry of Orders .... 58 
 
Till CONTENTS. 
 
 CHAPTEE VIII. 
 
 WITHDRAWAL OF APPEAL AND CONSENT TO AFFIRMANCE OR 
 
 REVERSAL. 
 
 PAGE 
 
 Sec. 1 — Settlement made after appeal taken without con- 
 sent of attorney 59 
 
 Sec 2 — ^Withdrawal of appeal 59 
 
 Sec 3 — Consent to affirmance 60 
 
 Sec 4 — Consent to reversal 60 
 
 CHAPTER IX. 
 ORDERS APPEALABLE AND NON-APPEALABLE. 
 
 Sec 1 — Municipal Court — Orders appealable . . 61 
 
 Sec 2 — Municipal Court — Orders non-appealable . . 62 
 
 Sec. 3 — City Court — Orders appealable ... 63 
 
 Sec. 4 — City Court^Orders non-appealable ... 64 
 
 Sec. 5 — Discretionary orders 65 
 
 CHAPTER X. 
 
 DEFAULT JUDGMENT — HOW FAR REVIEWABLE ON APPEAL. 
 
 Sec 1 — Default judgment defined 67 
 
 Sec 2 — General appearance — Effect of upon right to 
 appeal ' 68 
 
 Sec 3 — Default judgment upon failure of plaintiff to 
 appear 69 
 
 Sec. 4 — Appearance of both parties — And plaintiff suffers 
 default 70 
 
 Sec 5 — Reversal of order opening default — Effect of upon 
 judgment rendered 70 
 
 Sec. 6 — ^Non-service of summons — Effect of motion by de- 
 fendant to open default upon this ground . . 70 
 
CONTENTS. ix 
 
 PAGE 
 
 Sec. 7 — Non-service of summons — Order denying motion 
 
 to open default appealable 71 
 
 Sec. 8 — Non-service of summons — Motion to open default 
 
 where there are conflicting affidavits as to service . 72 
 
 Sec. 9 — Non-service of summons — Appeal from judgment 
 
 independent of motion in the Court below ... 72 
 Sec. 10 — Non-service of summons — Practice upon appeal 
 
 where made upon affidavits to the Appellate Court . 73 
 
 Sec. 11 — Non-service of summons — Special appearance — 
 
 Effect of 73 
 
 CHAPTER XI. 
 QtJESTIONS REVIEWABLE ON APPEAL. 
 
 Sec. 1 — Questions that may be raised for first time on 
 appeal 74 
 
 Sec. 2 — Questions that cannot be raised on appeal, unless 
 made in Court below 74 
 
 Sec. 3 — Non-suit — ^Appeal from judgment of . . 81 
 
 Sec. 4 — Exceptions ordered to be heard in the first in- 
 stance 82 
 
 Sec. 5 — Abandonment of appeal — Court below has power 
 to declare appeal abandoned 82 
 
 Sec. 6 — Academic or abstract questions .... 82 
 
 CHAPTER XII. 
 AMENDMENT AND MODIFICATION ON APPEAL. 
 
 Sec. 1 — Notice of appeal — Service and amendment of . 83 
 
 Sec. 2 — Failure to perfect appeal — How perfected . . 85 
 
 Sec. 3 — Pleadings — Amendment of, in appellate court . 87 
 
 Sec. 4 — Modification of judgment on order on appeal . 88 
 
 Sec. 5 — Parties — Amendment and substitution of . 89 
 
 (1) Parties succeeding to interest of appellant 
 
 or respondent 89 
 
 (2) Death of appellant or respondent . . 90 
 
X CONTENTS. 
 
 CHAPTER XIII. 
 
 REQUISITES FOR REVIEWING QUESTIONS OF FACT AND liAW. 
 ESTOPPEL AND WAIVER OF RIGHT TO APPEAL. 
 
 PAGE 
 
 Sec. 1 — Certificate as to evidence 95 
 
 Sec. 2 — Requisites for reviewing questions of fact (jury 
 
 trial) 9T 
 
 Sec. 3 — Requisites for reviewing questions of law only 
 
 (jury trial) 98 
 
 Sec. 4 — Requisites for reviewing questions of fact and. law 
 
 — Trial by Court or referee 99 
 
 Sec. 5 — Direction of verdict — both parties moving for . 101 
 
 Sec. 6 — Motion for dismissal or non-suit — absence of . 102 
 
 Sec. 7 — ^Void judgment lOa 
 
 Sec. 8 — Judgment of dismissal entered at appellant's re- 
 quest . . . N 103^ 
 
 Sec. 9 — Objection taken without stating grounds , . 103 
 Sec. 10 — Record — Matters not appearing in . . . 104 
 Sec. 11 — Compliance with judgment or order and accept- 
 ance of benefits 105 
 
 Sec. 12 — Payment of judgment pending appeal . . 105 
 
 CHAPTER XIV. 
 
 costs. 
 
 Sec. 1— Costs absolute upon an appeal from a judgment 
 of the City Court, where judgment is afl&rmed or re- 
 versed 106 
 
 Sec. 2 — Discretionary costs 107 
 
 Sec. 3— Costs to abide the event 109- 
 
 Sec. 4 — Costs to appellant to abide the event . . 109^ 
 
 Sec. 5— Without costs lia 
 
 Sec. 6 — Costs upon an appeal from an interlocutory judg- 
 ment or order of the City Court .... 110' 
 Sec. 7 — Costs absolute upon an appeal from judgment or 
 order of Municipal Court HI 
 
CONTENTS. Xi 
 
 PAGE 
 
 Sec. 8 — Discretionary costs upon Municipal Court judg- 
 ment or order 112 
 
 Sec. 9 — Costs upon motions 113 
 
 Sec. 10 — Amount of costs upon an appeal from a judg- 
 ment or order of the City Court .... 114 
 
 Sec. 11 — Amount of costs upon an appeal from a judg- 
 ment or order of the Municipal Court .... 116 
 
 CHAPTER XV. 
 
 APPEAIi FROM THE APPELLATE TERM TO THE APPELLATE 
 DIVISION OF THE FIRST DEPARTMENT. 
 
 Sec. 1 — From what appeal must be taken . . . 119 
 
 Sec. 2 — How appeal taken 119 
 
 Sec. 3 — ^Application for leave to appeal to the Appellate 
 
 Division 119 
 
 Sec. 4 — When and in what time appeal must be taken . 121 
 Sec. 5 — Record from the determination of the Appellate 
 Term, afifecting a judgment or order from the City 
 
 Court 121 
 
 Sec. 6 — Record on appeal from a determination of the Ap- 
 pellate Term, affecting a judgment or order from the 
 
 Municipal Court 128 
 
 Sec. 7 — Practice in the Appellate Division after record is 
 
 filed 132 
 
 Sec. 8 — Remittitur from Appellate Division . . . 135 
 
 CHAPTER XVI. 
 
 APPEALS FROM THE MUNICIPAL COURT TO THE APPELLATE 
 DIVISION IN THE SECOND DEPARTMENT. 
 
 Sec. 1 — Where heard ; Jurisdiction ; Sources ; Historical 
 
 sketch 136 
 
 Sec. 2 — Calendar Practice ; Terms 137 
 
Xll CONTENTS. 
 
 PAGE 
 
 Sec. 3 — Notice of Argument 139 
 
 Sec. 4 — Eecord on Appeal ; Eeturn ; How return com- 
 pelled 139 
 
 Sec. 5 — Briefs ; Argument 140 
 
 Sec. 6 — Motions 140 
 
 Sec. 7 — Order on Decision 142 
 
 Sec. 8 — Decisions in practice of the Appellate Term in the 
 
 First Department; Effect of; Comity .... 142 
 
 FORMS. 
 
 Appellate Term — Appellate Division . . . 142-158 
 
TABLE OF CASES. 
 
 PAGE 
 
 Abendendroth vs. Durant, 9 Civil Pro., 446 109 
 
 Ackley vs. Welsh, 85 Hun, 178 103 
 
 Adam vs. Eoscoe Lumber Co., 159 N. Y., 1'80 102 
 
 Agreda vs. Faulberg, 3 E. D. Smith, 178 55 
 
 Albany Brass & I. Co. vs. Alton, 84 Supp., 180 64 
 
 Allen vs. Becket, 84 Supp., 1011 ; 85 Supp., 192 48 
 
 AUevavs. Haggerty, 32 Misc., 711; s. c, 65 Supp., 690 103 
 
 Am. Writing Mch. Co. vs. Bushnell, 9 Misc., 462; s. c, 30 
 
 Supp., 228 76 
 
 Amorisa vs. Rando, 88 Supp., 356 49 
 
 Anhalt vs. Lightstone, 39 Misc., 822; s. c., 81 Supp., 288. . 74 
 Ansonia Brass and C. Co. vs. Gerlach, 8 Misc., 256 ; s. c, 
 
 28 Supp., 546 66 
 
 Ascher vs. Deyo, 77 Hun, 531 ; s. c, 28 Supp., 890 75 
 
 Austen vs. Columbia L. Co., 85 Supp., 362 73 
 
 Austrian Bent Wood F. Co. vs. Wright, 88 Supp., 142 ; s. c, 
 
 43 Misc., 616 75 
 
 Ayward vs. Powers, 25 Misc., 476 89 
 
 Bacon vs. Abbey Press Co., 43 Misc., 345 ; s. c, 87 Supp., 
 
 165 80 
 
 Bagley vs. Jennings, 58 Hun, 56; s. c, 11 Supp., 386 84 
 
 Baldwin vs. Thibandean, 14 Supp., 788 ; s. c, 39 St. Rep., 54 47 
 
 B'arker vs. Archer, 49 A. D., 80 79 
 
 Bass vs. Carley, 96 Supp., 1023 Tl 
 
 Bauer vs. Met. St. Ry. Co., 29 Misc., 636; 61 Supp., 164. . . 61 
 
 Beary vs. Hoster, 24 St. Rep., 878 ; 6 Supp., 330 63 
 
 Becker vs. Fisher, 13 A. D., 555 ; 43 Supp., 685 97 
 
 Beckwith vs. Inre, 87 N. Y., 503 92 
 
 Beebe vs. Nassau Showcase- Co., 41 A. D., 456; 58 Supp., 
 
 769 61 
 
 Bell vs. A. M. Cen. Ins. Co., 33 A. D., 239 110 
 
 xiii 
 
3;iv TABLE OF CASES. 
 
 PAGE 
 
 Bell vs. Judson, 2 How Pr., 42 113 
 
 Benjamin vs. Met. St. Ey. Co., 84 Supp., 458 81 
 
 Bennett vs. Levi, 19 Supp., 226 ; 46 St. Eep., 754 77 
 
 Bennet vs. Wick, 29 Misc., 632 ; 61 Supp., 106 88 
 
 Benson vs. Gutternian, 33 Misc., 753; 67 Supp., 89 46 
 
 Benton vs. Moss, 47 Misc., 376; 93 Supp., 1113 112 
 
 Benvfenuta vs. Candeloro, 43 Misc., 684; 88 Supp., 357 69 
 
 Bernard vs. Gantz, 69 Hun, 104 ; 23 Supp., 260 97 
 
 Bernheimer vs. Adams, 70 A. D., 114 ; 75 Supp., 93 78 
 
 Bernikow vs. Pomnierintz, 94 Supp., 487 64 
 
 Bloomingdale vs. Steubing, 14 Misc., 549; 35 Supp., 1074. . 63 
 
 Boyd vs. Malone, 24 Misc., 734 ; 53 Supp., 785 88 
 
 Boyle vs. Williams, 1 Misc., 112; 9 Supp., 534 99 
 
 Boynton vs. Keeseville E. L. & T. Co., 5 Misc., 118; 25 
 
 Supp., 741. 72 
 
 Bradley Currier Co. vs. Lally, 10 Misc., 366 ; 31 Supp., 120 . 33 
 
 Bradley Salt Co. vs. Meinhold, 23 Misc., 468 ; 52 Supp., 679 . 41 
 
 Brady vs. Cassidy, 13 Supp., 824 66 
 
 Brayton vs. Sherman, 119 N. Y., 623 96 
 
 Bristed vs. Harrell, 29 Misc., 93 ; 46 Supp., 966 39 
 
 Brockway vs. Juett, 16 Barb., 590 108 
 
 Brodneesky vs. Gottleib, A. T. Dec, 1905 62 
 
 Brody vs. Katz, 87 Supp., 452 22 
 
 Bowne vs. Anthony, 13 How. Pr., 301 113 
 
 Brown vs. Bouse, 43 Misc., 72 ; 86 Supp., 240 68 
 
 Brown vs. Gauss, 95 Supp., 538 66 
 
 Brown vs. Levy, 34 Misc., 812 ; 68 Supp., 941 102 
 
 Brown vs. James, 2 A. D., 105; 37 Supp., 529 97 
 
 Brush vs. Blott, 42 Supp., 761 99 
 
 Buet vs. Gerraty, 31 Misc., 22 ; 62 Supp., 1125 110 
 
 Bull vs. New Amsterdam Cas. Co., 85 Supp., 329 80 
 
 Burbank Hardware Co. vs. Hickel, 76 A. D., 183 ; 78 Supp., 
 
 365 72 
 
 Burt vs. Lusty, 17 Supp., 362 ; 137 N. Y., 538 90 
 
 €ahill vs. Lilenthal, 30 Misc., 429 ; 62 Supp., 524 70 
 
TABLE OF CASES. XV 
 
 PAGE 
 
 Campbell vs. Gallagher, 18 Civ. Pro., 90 ; 9 Supp., 432 92 
 
 Campbell vs. Friedlander, 51 A. D., 191 ; 64 Supp., 241 94 
 
 Campbell vs. Hallihan, 46 Misc., 409 ; 92 Supp., 413 115 
 
 Campbell vs. Jughart, 50 A. D., 460; 64 Supp., 198 26 
 
 Campbell vs. Muller, 19 Misc., 189 ; 43 Supp., 233 79 
 
 Campbell vs. Woolworth, L. J., Nov. 28, 1905 26 
 
 Carlson vs. Winterson, 146 N. Y., 345 38 
 
 Carter vs. Anderson, 16 Daily, 437 ; 11 Supp., 883 41 
 
 Catlin vs. Bundle, 1 A. D., 157 ; 37 Supp., 979 103 
 
 Chadwick vs. Brother, 4 How., 283; 3 Co. Rep., 21 113 
 
 Chamberlin vs. Ins. Co. of N. A., 3 Supp., 701; 20 St. Rep., 
 
 543 75 
 
 Chapin vs. Churchill, 12 How. Pr., 367 107 
 
 Chapuis vs. Long, 77 A. D., 272 ; 78 Supp., 1046 24 
 
 Chaplin vs. Dubois, 1 Supp., 150 ; 48 Hun, 620 86 
 
 Chretien vs. Doney, 1 N. Y., 419 41 
 
 Cinque vs. Cassini, 43 A. D., 383 ; 60 Supp., 92 77 
 
 Citron vs. Bailey, 36 A. D., 130 ; 55 Supp., 382 65 
 
 City of N. Y. vs. Union R. Co., 31 Misc., 451 ; 64 Supp., 483. 80 
 
 Clapp vs. Hawley, 97 N. Y., 610 84 
 
 Clapp vs. Sternglung, 23 Misc., 641; 52 Supp., 156 85 
 
 Clark vs. Carroll, 61 How. Pr., 47 107 
 
 Clement vs. Beale, 53 A. D., 416 ; 65 Supp., 1093 96 
 
 Cochran vs. Gottwold, 42 N. Y. Sup. Ct, 214 110 
 
 Coffee vs. Phillip, 21 Misc., 663 103 
 
 Cohen vs. Ridgewood Shirt Co., 84 Supp., 188 3 
 
 Cohen vs. Sofranski, 95 Supp., 524 64 
 
 Colwell vs. Devlin, 20 Misc., 616; 46 Supp., 450 112 
 
 Condit vs. Sill, 18 Supp., 97 76 
 
 Consumer Park Brewery Co. vs. Greenberger, 47 Misc., 398 ; 
 
 94 Supp., 38 62 
 
 Cook & B. Co. vs. Haan, 21 Misc., 346 ; 47 Supp., 131 78 
 
 Costello vs. 42d St. Rw. Co., L. J., April 13, 1906 49 
 
 Cowen vs. Arnold, 57 Hun, 588 ; 11 Supp., 95 13 
 
 Cowen vs. 3d Ave. Rw. Co., 9 Supp., 610 76 
 
XVI TABLE OF CASES. 
 
 PAGE! 
 
 Cox VS. James, 45 N. Y., 557 9& 
 
 Cram vs. Dietrich, 38 Misc., 790; 78 Supp., 948 74 
 
 Crawford vs. Price, 68 Hun, 607 ; 22 Supp., 644 19' 
 
 Craven vs. Louisville & N. E. Co., 33 Misc., 789 ; 67 Supp., 
 
 948 102 • 
 
 Crofts vs. Rockefeller, 6 How. Pr., 9 108 
 
 Curley vs. Tomlinson, 5 Daly, 283 32 
 
 Curtin vs. Met. St. Ry. Co., 22 Misc., 586; 49 Supp., 688. 34 
 Curtis vs. Saddelry Hardware Co., 7 Misc., 316 ; 27 Supp., 
 
 901 77 
 
 Cushing vs. Vanderbilt, 7 Daily, 512 3ii 
 
 Cutting vs. Burns, 57 A. D., 185 ; 68 Supp., 289 81 
 
 Catlin vs. Eundle, 1 A. D., 157 -. 103: 
 
 Daily vs. Minke, 86 Supp., 92 46. 
 
 Davis vs. Bonn., 16 Misc., 365 ; 38 Supp., 30 35 
 
 Davis vs. Grand Rapids Fire Co., 5 A. D., 36 ; 39 Supp., 71 . 115 
 
 Davis vs. Mills, 22 Supp., 339 98 
 
 Davis Sew. Mac. Co. vs. Best, 50 Hun, 76 ; 4 Supp., 510 76. 
 
 Davidson vs. Mexican Natl. R. R. Co., 11 A. D., 28; 42 
 
 Supp., 1015 77 
 
 Dawson vs. Parsons, 74 Hun, 221 ; 26 Supp., 327 65 
 
 Deane vs. Sire, 95 Supp., 566 6a 
 
 Debraekeleer & Co. vs. Schwabeland, 86 Hun, 143 ; 33 Supp., 
 
 212 75 
 
 Diehl vs. Steele, 97 Supp., 1024 67 
 
 Delaney vs.' Vanentine, 11 A. D., 316; 42 Supp., 571 99 
 
 D., L. & W. R. R. Co. vs. Burkard, 40 Hun, 625 108 
 
 Delamater vs. Carman, 2 Daly, 182 107 
 
 Denslow vs. Bush, 9 Misc., 337; 29 Supp., 705 65 
 
 Dept. of Health vs. Babcock, 84 Supp., 604 61 
 
 Dibble vs. Dominick, 143 N. Y., 549 97 
 
 Dickson vs. Man. Ry. Co., 45 Misc., 572 ; 91 Supp., 36 82 
 
 Dixon vs. Carruci, 97 Supp., 380 •. 73 
 
 Doboyne vs. Com. Trust Co., 98 Supp., 748 83 
 
 Donai vs. Lutjens, 21 A. D., 254 ; 47 Supp., 659 88 
 
TABLE OF CASES. Xvii 
 
 PAGE 
 
 Dorf vs. Brooklyn Heights R. Co., 95 A. D., 82; 88 Supp., 
 
 463 82 
 
 Drake vs. N. Y. Iron Mine Co., 156 N. Y., 90 101 
 
 Drexell vs. Pease, 37 Stajte Rep., 166 87 
 
 Droham vs. Norton, 1 Misc., 486; 21 Supp., 579 63 
 
 Duncan vs. Root, 23 State Rep., 58 ; 4 Supp., 613 33 
 
 Dunford vs. Weaver, 84 N. Y., 445 104 
 
 Dunham vs. ToAvnshend, 118 N. Y., 281 104 
 
 Dunican vs. Union R. Co., 56 A. D., 181 ; 67 Supp., 649 79 
 
 Durant vs. Ablendroth, 8 Civ. Pro., 87 84 
 
 Eagle Tube Co. vs. Baer Co., 11 Supp., 712 33 
 
 Eckerson vs. City of N. Y., 80 A. D., 12; 176 N. Y., 609 101 
 
 Eagerly vs. L. I. R. Co., 46 A. D., 284 ; 61 Supp., 677 34 
 
 Eichner vs. Cohen, 46 Misc., 126; 91 Supp., 357 70 
 
 Eiseman vs. Hine, 2 A. D., 319 ; 37 Supp., 861 77 
 
 Eisenbud vs. Gellert, 26 Misc., 367 ; 55 Supp., 952 22 
 
 Eisslervs. Union T.&S. Co., 16 Daly, 456; 12 Supp., 732. . 107 
 
 Eisner vs. Eisner, 89 Hun, 480 ; 35 Supp., 393 64 
 
 Elfenbein vs. Rosenthal, 47 Misc., 380; 94 Supp., 40 69 
 
 El. Boat Co. vs. Harvey, 96 A. D., 410 100 
 
 Elliott vs. Luengene, 19 Misc., 428; 43 Supp., 1140 110 
 
 Emal vs. Wheeling 65 
 
 Empire Hardware Co. vs. Young, 27 Misc., 226 105 
 
 Engerman vs. N. G. Lloyd S. S. Co., 84 Supp., 199 108 
 
 Estus vs. Baldwin, 9 How. Pr., 80 38 
 
 Eten vs. Luyster, 60 N. Y., 252 39 
 
 Evans vs. Silberman, 7 A. D., 139 ; 40 Supp., 298 19 
 
 Fayborn vs. Dimon, 20 A. D., 529 ; 47 Supp., 227 77 
 
 Folker vs. N. Y., W. S. & B. R. R. Co., 100 N. Y., 86 84 
 
 Farber vs. Flauman, 30 Misc., 627$ 62 Supp., 784 114 
 
 Farmer N. B. vs. Underwood, 12 A. D., 269 ; 42 Supp., 500 . 45 
 
 Farnolo vs. Rafaneli, 84 Sup.p., 549 60 
 
 Feneran vs. Singer Mfg. Co., 20 A. D., 574 ; 47 Supp., 284. . 79 
 
 Fischer vs. Brooklyn Hgt. R. R. Co., 84 Supp., 254 62 
 
XViJi TABLE OF CASES. 
 
 PAGE 
 
 Fir^t N. B. vs. Fourth N. B., 84 N. Y., 469 .* 109 
 
 Fitch vs. Mayor, 88 N. Y., 500 87 
 
 Forgottson vs. Brafman, 84 Supp. 237 101 
 
 Forman vs. N. Y. Trans. Co., 95 Supp., 581 22 
 
 Forrest vs. Thompson, 8 St. Eep., 345 108 
 
 Forstman vs. Schulting, 42 Hun, 634 39 
 
 Franey vs. Smith, 126 N. Y., 658 109 
 
 Franken vs. McAlpin, 29 Misc., 771 ; 61 Supp., 496 79 
 
 Freedman vs. Diciiinson, 85 Supp., 333 81 
 
 Frederick vs. City of Johnston, 47 A. D., 221; 62 Supp., 66. 101 
 
 Friedman vs. Eose, 31 Supp., 1040 ; 83 Hun, 542 75 
 
 Fromme vs. Poerschke, 95 Supp., 525 63 
 
 Frost vs. Frost, 16 Misc., 430 ; 39 Supp., 856 38 
 
 Fry vs. Bennett, 16 How. Pr., 385 85 
 
 Gansevoort Bk. vs. Altshul, 26 Misc., 6 ; 55 Supp., 733 63 
 
 Gates vs. Williams, 10 Misc., 403 ; 31 Supp., 146 34 
 
 Gardner vs. Smith, 2 Civ. Pro., 420 20 
 
 Geneva & W. Ey. Co. vs. N. Y. C. & H. E. Co., 24 A. D., 335 ; 
 
 48 Supp., 842 19 
 
 Gibson vs. Met. Ey. Co., 31 Misc., 391 ; 64 Supp., 396 97 
 
 Gill vs. Etna Stock Co., 82 Hun, 363 ; 31 Supp., 495 88 
 
 Glass vs. Harg, 40 A. D., 557 83 
 
 Goodman vs. Cohen, 11 Supp., 65; 32 St. Eep., 675 33 
 
 Goodrich vs. Giles, 62 Hun, 479 ; 17 Supp., 88 95 
 
 Gorham Mfg. Co. vs. Seale, 3 A. D., 515 96 
 
 Gossett vs. Fox, 90 Supp., 477 63 
 
 Grampp vs. De Peyster, 29 Supp., 1039 75 
 
 Green vs. Malcolm, 83 Hun, 9 ; 31 Supp., 612 97 
 
 Grant vs. Lawrence, 79 Hun, 565 ; 29 Supp., 901 95 
 
 Guase vs. The Sterling Piano Co., 95 A. D., 115 104 
 
 Guivin vs. Mundy, 45 St. Eep., 667; 18 Supp., 445 97 
 
 Haebler vs. Myers, 132 N. Y., 363 37 
 
 Hahn vs. Van Doren, 1 E. D. S., 411 106 
 
 Hallenback vs. Smith, 51 A. D., 344; 64 Supp., 957 97 
 
TABLE OP CASES. xix 
 
 PAGE 
 
 Halliday vs. Barber, 38 Misc., 116; 77 Supp., 98 2 
 
 Halpin vs. Phoenix Ins. Co., 118 N. Y., 165 96 
 
 Hand vs. Rogers, 16 Misc., 364 ; 38 Supp., 2 33 
 
 Hangen vs. Hackmelster, 114 N. Y., 566 77 
 
 Happel vs. Lippe, 95 Supp., 523 65 
 
 Hard vs. Densmore, 40 A. D., 621; 57 Supp., 1014 80 
 
 Hannon vs. Gallagher, 19 Misc., 347 ; 43 Supp., 492 97 
 
 Harris vs. Kirshofer, 98 Supp., 212 71 
 
 Harris vs. Osnowitz, 35 A. D., 594; 55 Supp., 172 108 
 
 Harris vs. Trunbridge, 83 N. Y., 92 87 
 
 Harrison vs. Weir, 68 A. D., 25 ; 73 Supp., 119 34 
 
 Hawley vs. Gloversville, 4 A. D., 343 ; 38 Supp., 647 76 
 
 Hayes vs. Nourse, 7 Supp., 656; See 107 N. Y., 577-105 38 
 
 Heins vs. Man. Ey. Co., 8 Misc., 686 ; 28 Supp., 780 82 
 
 Helmuth vs. Apgar, 17 Misc., 623; 40 Supp., 651 102 
 
 Hempstead vs. Flagg, 7 Misc., 544; 27 Supp., 988 77 
 
 Henderson vs. Doughtteny, 95 A. D., 346 101 
 
 Henry Hesse & Co. vs. Baar, 14 Misc., 286 ; 35 Supp., 687. . 77 
 
 Hess vs. Smith, 16 Misc., 55; 37 Supp., 735 105 
 
 Hewitt vs. Town of Thurman, 41 A. D., 6 ; 58 Supp., 83 96 
 
 Hill vs. Burke, 62 N. Y., Ill 84 
 
 Hinds vs. Kellogg, 13 Supp., 922 75 
 
 Holly vs. Gibbons, 177 N. Y., 401 39 
 
 Hopkins vs. Clark, 158 N. Y., 299 103 
 
 Horndorf vs. Atwater, 75 Hun, 369 ; 27 Supp., 447 88 
 
 Howell vs. Wright, 122 N. Y., 677 102 
 
 Howe vs. Noyes, 95 Supp., 542 99 
 
 Rowland vs. Howland, 20 Hun, 472 96 
 
 Hubbard vs. Chapman, 28 A. D., 577; 51 Supp., 207 99 
 
 Huck vs. Bishop, 84 Supp., 173 80 
 
 Humphry vs. Chamberlin, 11 N. Y., 274 84 
 
 Hunt vs. Webber, 22 A. D., 631 ; 48 Supp., 24 97 
 
 Hyman vs. Siegel, 44 Misc., 226; 88 Supp., 1036 49 . 
 
 Jn Re Atwood, 3 A. D., 578 ; 38 Supp., 338 78 
 
XX TABLE OF OASES. 
 
 PAGE] 
 
 In Re Transfer, 92 Supp., 322 104 
 
 Ireland vs. Harlan, 88 Supp., 990 115 
 
 Jaeger vs. Koenig, 67 A. D., 552 ; 73 Supp., 907 34 
 
 Jones vs. Cook, 11 Hun, 230 113 
 
 Jones vs. Town of Tonawanda, 35 A. D., 151 ; 55 Supp., 115 78 
 
 Kafka vs. Levenson, 18 Misc., 202; 41 Supp., 368 102 
 
 Kapner vs. Samuels, 84 Supp., 195 66 
 
 Katz vs. Diamond, 16 Misc., 577; 38 Supp., 766 106 
 
 Keeler vs. Barrett's P. H. Dye Est, 12 Civ. Pro., 121 Ill 
 
 Kenneally vs. N. Y. C. By., 91 Supp., 770 76 
 
 Kemp vs. Tonnele Co., 99 Supp., 885 89 
 
 Kenney vs. Liv. Stable K. Ass., 89 Hun, 190; 35 Supp., 8. . 41 
 
 Kent vs. Sibley, 5 Supp., 448 ; 8 Supp., 956 84 
 
 Keohler vs. Hughes, 73 Hun, 167 ; 25 Supp., 1061 97 
 
 Keoppel vs. Keoppel, 95 Supp., 812 6 
 
 Kerr vs. Walter, 104 A. D., 45 ; 93 Supp., 311 68 
 
 Kessler vs. Levy, 12 Misc., 116; 33 Supp., 54 33 
 
 Kidd vs. Curry, 29 Hun., 215 37 
 
 Kinsey vs. Am. Hdw. Co., 94 Supp., 455 64 
 
 Kister vs. Paine, 41 A. D., 443 ; 58 Supp., 865 '. 101 
 
 Klinker vs. 3d Ave. R. R. Co., 33 A. D., 556 ; 53 Supp., 1012 . 38 
 
 Klinker vs. Guggenbeimer, 92 Supp., 797 62 
 
 Koebler vs. N. Y. Steam Co., 71 A. D., 224 ; 755 App., 597 . . 98 
 
 Kohl vs. Met. St. Ry. Co., 32 Misc., 765 ; 66 Supp., 482 82 
 
 Krakower vs. Tauber, 85 Supp., 339 65 
 
 Kromback vs. Penn. Steel Co., 84 Supp., 297 65 
 
 L. E. Waterman Co. vs. Waterman, 40 A. D., 530 ; 58 Supp., 
 
 168 79 
 
 Lane vs. Van Orden, 63 How. Pr., 237 108 
 
 Langer vs. Gross, 31 Misc., 266 ; 64 Supp., 30 102 
 
 Lanpher vs. Clark, 77 Hun, 506; 29 Supp., 107 66 
 
 Lavelle vs. Skelly, 90 N. Y., 546 85 
 
 Lazarus vs. Boynton, 86 Supp., 104 73 
 
TABLE OF CASES. XXI 
 
 PAGE 
 
 Leavitt vs. Katzoff, 43 Misc., 26 ; 86 Supp., 495 3 
 
 Xedoux vs. Grand Trunk By. Co., 61 N. Y., 613 101 
 
 Lester vs. Lawyer's Surety Co., 30 Misc., 771; 62 Supp., 479 107 
 
 Levenson vs. Arnold, 97 Supp., 990 68 
 
 Levinson vs. Rabinowitz 28 
 
 Levy vs. Fidelity & D. Co., 87 Supp., 487 82 
 
 Levy vs. Hohenwasner, 102 A. D., 82 89 
 
 Lewis vs. Hosey, 26 Misc., 789; 56 Supp., 200 107 
 
 Lindsley vs. Deafendorf, 43 How. Pr., 90 108 
 
 Listman vs. Hickey, 65 Hun, 8; 19 Supp., 880 87 
 
 Listner vs. Dochterman, 97 Supp., 230 89 
 
 Livingston vs. N. Y. El. Ry Co., 58 Hun, 131 , 86 
 
 Loeb vs. Smith, 24 Misc., 200 ; 52 Supp., 677 103 
 
 Loft vs. Kaziz, 84 Supp., 228 74 
 
 Logeling vs. N. Y. El. Co., 38 Supp., 1112; 5 A. D., 198. . . 105 
 
 Long Brancli Pier Co. vs. Crossley, 40 Misc., 249 47 
 
 Long Branch Pier Co. vs. Crossley, 40 Misc., 249 ; 81 Supp., 
 
 905 62 
 
 Loring vs. Morrison, 25 A. D., 139 109 
 
 Lutz vs. 3d Ave. R. Co., 44 A. D., 256 ; 60 Supp., 761 92 
 
 Lynch vs. Sauer, 16 Misc., 362; 38 Supp., 1 35 
 
 iiynsky vs. Pendergrast, 2 E. D. Smith, 43 47 
 
 Maas vs. Nankerville, 97 Supp., 980 63 
 
 Maggio vs. Ocean View Cem. Co., 94 Supp., 595 46 
 
 Mahon vs. Mahon, 64 A. D., 262 ; 72 Supp., 102 28 
 
 Mahon vs. Sewell, 7 Supp., 600 33 
 
 Malcolm vs. Hamill, 65 How. Pr., 506 115 
 
 Mallory vs. Imt. St. Ry. Co., 92 Supp., 60 59 
 
 Maneely vs. Mayers, 43 Misc., 380; 87 Supp., 471 62 
 
 Manheim vs. Seitz, 36 A. D., 302 136 
 
 Manning vs. Ferrier, 27 Misc., 522; 58 Supp., 332 22 
 
 Market Natl. B. vs. Pacific Natl. Bk., 102 N. Y., 464 37 
 
 Marquis vs. Wood, 30 Misc., 770 ; 62 Supp., 525 80 
 
 Marsh vs. Masterson, 3 Supp., 414 41 
 
 Marsten vs. Gould, 69 N. Y., 220 lOa 
 
XXU TABLE OF OASES. 
 
 PAGH 
 
 Martin vs. Adams, 73 Hun, 122; 25 Supp., 1020 97 
 
 Martin vs. Baust, 23 A. D., 234 ; 48 Supp., 989 97 
 
 Martin vs. Bliss, 57 Hun, 157; 10 Supp., 886 7& 
 
 Martin vs. Moore, 3 A. D., 416; 38 Supp., 652 95 
 
 Martin vs. Tarbox, 23 Misc., 761; 51 Supp., 319 107 
 
 Marvin vs. Brewster Min. Co., 56 N. Y., 671 38 
 
 Masor vs. Jacobus, 84 Supp., 270 64 
 
 Mathews vs. Myberry, 63 N. Y., 656 64 
 
 Matter of Peekamoose Club, 5 A. D., 283 45 
 
 May vs. Menton, 21 Misc., 321 ; 47 Supp., 179 76 
 
 Mayer vs. Friedman, 30 Misc., 364 108 
 
 Merriam vs. The W. & P. Lith. Co., 155 N. Y., 136 37 
 
 Met. St. Ey. Co. vs. Johnston, 84 Hun, 83; 32 Supp., 49. . 65 
 
 Miller vs. Fiss, 21 Misc., 66; 46 Supp., 967 79 
 
 Miller vs. King, 34 Supp., 425 109, 32 
 
 Miller vs. Eunnells, 72 Hun, 482; 25 Supp., 642 7ft 
 
 Moench vs. Young, 9 Supp., 637 41 
 
 Molineux vs. Clapp, 99 A- D., 543; 90 Supp., 880 99 
 
 Monroe Bk. vs. Lischenstein, 96 Supp., 260 71, 72 
 
 Moore vs. McLaughlin, 66 Hun, 133 ; 21 Supp., 55 75 
 
 Mormet vs. Merz, 60 Sup. Court, 256; 17 Supp., 380 105 
 
 Morris vs. Hunken, 40 A. D., 129 84 
 
 Morris vs. Morange, 26 How. Pr., 247 83^ 
 
 Morrison vs. Ide, 4 How. Pr., 304 lia 
 
 Mount vs. Mitchell, 32 N. Y., 702 3a 
 
 Munoz vs. Wilson, 111 N. Y., 299 104 
 
 Murphy vs Lockwood, 3 Hun, 304 41 
 
 Murry vs Berdell, 98 N. Y., 480 3f^ 
 
 Muttart vs. Muttart, 93 Supp., 468 65 
 
 McCarthy vs. Met. St. Ey. Co., 96 Supp., 139 & 
 
 McComb vs. Title Guar. & T. Co., 36 Misc., 370; 73 Supp., 
 
 554 82 
 
 McDonel vs. Buffum, 31 How. Pr., 154 4T 
 
 McEvitt vs. Maas, 64 A. D., 382; 72 Supp., 158 105 
 
 McKean vs. Scott, 84 Supp., 456 77 
 
TABLE OF CASES. xxiii 
 
 PAGE 
 
 McKenzie vs. Hackstapp, 2 E. D. Smith, 75 113 
 
 McLochlin vs. Brett, 27 Hun, 18 85 
 
 McMann vs. Brown, 92 A. D., 249, 87 Supp., 38 6G 
 
 McMoran vs. Lange, 25 A. D., 11 106 
 
 Morris vs. Morange, 26 How. Pr., 247 83 
 
 McPhillips vs. N. Y., N. H. & H. R. R, Co., 14 Supp., 928. . 34 
 
 Natl. Pro. Assn. vs. Cummings, 65 Supp., 946; 53 A. D., 
 
 227 96 
 
 Natl. Savings Bk. vs. Slade, 17 A. D., 115; 44 Supp., 934. . 105 
 
 Neckar vs. Nardi, 99 Supp., 381 85 
 
 Newkirk vs. Hooker, 12 Misc., 402; 33 Supp., 694 65 
 
 New Rochelle G. & F. Co. vs. Benschattin, 47 A. D., 477. . . 84 
 New Rochelle G. & F. Co. vs. Van Benscholin, 47 A. D., 
 
 477; 62 Supp., 398 105 
 
 Oaksmith vs. Baird, 19 A. D., 334 ; 46 Supp., 262 97 
 
 O'Day vs. Huppel Brewing Co., 30 Misc., 460 104 
 
 Odell vs. McGrath, 16 A. D., 103 ; 45 Supp., 119 43 
 
 O'Gara vs. Kearney, 77 N. Y., 423 39 
 
 Oliver vs. French, 80 Hun, 175 ; 32 Supp., 576 34 
 
 O'Neil vs. Hesler, 82 Hun, 432 ; 31 Supp., 510 66 
 
 Orvis vs. Curtiss, 11 Misc., 418 ; 33 Supp., 589 104 
 
 Ostrom vs. Sapolinsky, 96 Supp., 1070 89 
 
 Palmer vs. Peck, 2 Cow., 461 47 
 
 Patterson vs. McOann, 38 Hun, 531 85 
 
 Parker vs. Lythgoe, 14 Supp., 528 37 
 
 Parsons vs. Frank 117 
 
 Parsons vs. Van Wyck, 56 A. D., 329; 67 Supp,, 1054 74 
 
 Pascocello vs. Bklyn H. R. R. Co., 26 Misc., 412; 56 Supp., 
 
 177 62 
 
 Passey vs. Craighead, 89 Hun, 76; 35 Supp., 36 98 
 
 Peabody vs. Long Acre Sq. Co., 47 Misc., 629; 94 Supp., 
 
 507 81 
 
XXIV TABLE OF CASES. 
 
 PAGE 
 
 Penny vs. Huebener, 2 Supp., 641 76 
 
 Penny vs. Woodbury, 17 Supp., 530 105 
 
 People vs. Eldridge, 7 How., 108 85 
 
 People vs. Hamilton, 15 Abb. Pr., 328 41 
 
 People vs. Mathews, 38 N. Y., 451; 43 Barb., 168 40 
 
 People vs. Sanbom, 46 A. D., 630; 61 Supp., 529 89 
 
 Perkins vs. Hill, 56 N. Y., 87 96 
 
 Perry vs. Erie Transfer Co., 4 Misc., 598; 23 Supp., 878. . 76 
 
 Perry vs. Livingston, 6 How. Pr., 404 108 
 
 Persons vs. Hawkins, 41 A. D., 171 102 
 
 Pfau vs. Alteria, 23 Misc., 693 ; 52 Supp., 88 78 
 
 Phillips vs. Levy, 56 Sup. Ct., 606; 3 Supp., 664 93 
 
 Phillips vs. Met. El. E. E. Co., 12 A. D., 283; 42 Supp., 33. 79 
 
 Piper vs. Van Buren, 27 Hun, 384 85 
 
 Pittsfleld Natl. Bank vs. Bayne, 140 N. Y., 321 37 
 
 Poggenberg vs. Mestainz, 46 Misc., 110 ; 91 Supp., 342 115 
 
 Poillon vs. Poillon, 75 A. D., 536 ; 78 Supp., 323 24 
 
 Pollock vs. Penn. Iron Works Co., 157 N. Y., 699 103 
 
 Porter vs. Smith, 107 N. Y., 531 96 
 
 Powell vs. Schenck, 6 A. D., 130; 39 Supp., 877 59 
 
 Prager vs. Schaphaus, 99 Supp., 840 98 
 
 Pratt vs. Baker, 88 Hun, 301; 34 Supp., 766 3 
 
 Price vs. Price, 61 Hun, 604; 16 Supp., 359 113 
 
 Pratt vs. Hudson Eiver E. E. Co., 21 N. Y., 305 87 
 
 Quigg vs. International S. & C. Co., 16 Misc., 39 ; 37 Supp., 
 
 916 3 
 
 Quinn vs. Winter, 15 Daly, 383; 7 Supp., 755 63 
 
 Eandall vs. N. Y. El. E., 76 Hun, 427; 27 Supp., 1062 97 
 
 Eaphael vs. Margolies, 42 Misc., 204 ; 85 Supp., 392 80 
 
 Eeeder vs. Sayre, 70 N. Y., 180 87 
 
 Eeim vs. Bklyn. H. E. E. Co., 94 Supp., 636 88 
 
 Eemick vs. N. Y. El. Co., 13 Supp., 600 97 
 
 Eichard vs. Natl. Dist. Co., 95 Supp., 547 65 
 
 Pied vs. Gaedke, 38 A. D., 107; 57 Supp., 414 115 
 
TABLE OF CASES. XXV 
 
 PAGE 
 
 Hiehl vs. Levy, 43 Misc., 59 ; 86 Supp., 464 74 
 
 Riker vs. Curtis, 10 Misc., 125; 30 Supp., 940 88 
 
 Eiley vs. Gitterman, 10 Supp., 38 93 
 
 Robinson Con. Mining Co. vs. Craig, 4 St. Rep., 478 33 
 
 Rogers vs. U. S. Fed. & Guar. Co., 84 Supp., 203 76, 77 
 
 Rosenberg vs. A. M. Eisenberg Co 28 
 
 Rosenstein vs. Fox, 150 N. Y., 354 96 
 
 Ross vs. Wig, 100 N. Y., 243 93 
 
 Rothenberg vs. Herman, 94 Supp., 6 70 
 
 Rottenberg vs. Schweitzer, 29 Misc., 653 104 
 
 Rouse vs. Printers' Ex. Co., 12 Misc., 114; 35 Supp., 55. . . 77 
 
 Royce vs. Jones, 23 Hun, 452 108 
 
 Rusher vs. Brennan, 29 Misc., 142; 60 Supp., 283 102 
 
 Salisbury vs. County of Washington, 30 A. D., 187; 51 
 
 Supp., 1070 78 
 
 :Soltz vs. Newmark, 84 Supp., 283 ". 88 
 
 Satkofsky vs. Jarmulowsky, 95 Supp., 555 64 
 
 Schaefer vs. Central Cross Town Ry. Co., 30 Misc., 114; 
 
 61 Supp., 806 82 
 
 SchafE vs. Miles, 10 Misc., 395 ; 31 Supp., 134 77 
 
 Schrenkeisen vs. KroU, 85 Supp., 1072 61 
 
 Seaman vs. McReynolds, 40 Sup. Ct., 545 84 
 
 Shapiro vs. Goldberg, 31 Misc., 787; 65 Supp., 312 39 
 
 Sheffield vs. Murray, 80 Hun, 555 ; 30 Supp., 799 65 
 
 Shepard vs. N. Y. El. R. R. Co., 15 Supp., 175 77 
 
 Sheridan vs. Genet, 1 Civ. Pro., 309 109 
 
 Sherman vs. Wells, 14 How., 522 84 
 
 Sherwood vs. Trav. Ins. Co., 12 Daily, 137 40 
 
 Shepherd vs. Cohen, 56 Sup. Ct, 525; 4 Supp., 393 13 
 
 Silo vs. Linde, 31 Misc., 264 ; 64 Supp., 55 45 
 
 Simms vs. Voght, 99 N. Y., 654 101 
 
 Simmons vs. Pepe, '88 Supp., 122 112 
 
 Singer Mfg. Co. vs. Beckel, 85 Supp., 391 112 
 
 Sinsheimer vs. N. Y. C. & H. R. R. Co., 21 Misc., 45; 46 
 
 Supp., 887 3 
 
XXVi TABLE OF CASES. 
 
 PAGE 
 
 Sipp VS. Reich, 88 Supp., 960 62 
 
 Skinner vs Jordan, 46 Misc., 92; 91 Supp., 322 74 
 
 Slattery vs. Noble, 95 Supp., 606 64, 66 
 
 Smith vs. Ely, 46 Misc., 458 ; 92 Supp., 310 62 
 
 Smith vs. Fleischman, 17 A, D., 532; 45 Supp., 553 114 
 
 Smith vs. Johnson, 30 How. Pr., 374 46 
 
 Smith vs. N. Y. 0. & H. E. R. Co., 177 N. Y., 224. 81 
 
 Smith vs. Smith, 43 Sup. Ct., 140 45 
 
 Smith vs. Wetmore, 41 A. D., 290 87 
 
 Snelling vs. Yetler, 25 A. D., 590 98 
 
 Southwick vs. 1st Natl. Bk. of Memphis, 84 N. Y., 420 87 
 
 Speigelman vs. Union Ey. Co., 95 A. D., 92; 88 Supp., 
 
 478 61 
 
 Speiss vs. Weinberg, 27 Misc., 774; 57 Supp., 761 102 
 
 Speropulus vs. Magnioni, 49 Misc., 90; 96 Supp., 438 71 
 
 Stanton vs. Supreme Council of Cath. Mu. Assn., 8 Misc., 
 
 366; 29 Supp., 390 18 
 
 Starr Cash Co. vs. Eeinhardt, 6 Misc., 365; 26 Supp., 746. . 107 
 
 Stearn vs. Hoffman House Co., 8 Misc., 246 102 
 
 Stearns vs. Hemmens, 3 Supp., 16 33 
 
 Stein vs. Kesselgrub, 45 Misc., 652; 91 Supp., 64 82 
 
 Steinhardt vs. Enteen, 87 Supp., 482; 43 Misc., 388 75, 80 
 
 Stern vs. Fleck, 102 A. D., 272; 92 Supp., 453 61 
 
 Sternwald vs. Seigel, 7 Misc., 70; 27 Supp., 375 77 
 
 Stevens vs. Brennen, 79 N. Y., 254 104 
 
 Stevens vs. Malloy, 99 Supp., 385 73 
 
 Stevens vs. Schroeder, 40 A. D., 590 ; 58 Supp., 52 98 
 
 Stevenson vs. Pusch, 40 How. Pr., 91 Ill 
 
 Stiefeel vs. N. Y. Novelty Co., 12 A. D., 266; 42 Supp., 511. 101 
 
 Stilwell vs. Armstrong, 28 Misc., 546; 59 Supp., 671 59 
 
 Strauss vs. Welsbach Gas Light Co., 42 Misc., 184; 85 
 
 Supp., 367 78, 81 
 
 Streep vs. McLoughlin, 36 Misc., 165 ; 72 Supp., 1061 Ill 
 
 Stuyvesant R. E. Co. vs. Sherman, 40 Misc., 205 ; 81 Supp., 
 
 642 74 
 
 Syms vs. Mayer, 105 N. Y., 153 Ill 
 
TABLE OF CASES. XXVii 
 
 PAGE 
 
 Tallman vs. Earle, 13 Supp., 805 73 
 
 Tannenbaum vs. Armeny, 31 Supp., 55 70 
 
 Taylor vs. Smith, 164 N. Y., 399 98 
 
 Templeton vs. Wile, 3 Supp., 9 76 
 
 Ten Eyck vs. Whiltbeck, 55 A. D., 165 99 
 
 Terry vs. Wait, 56 N. Y., 91 34 
 
 The Market Natl. Bank vs. Pacific Natl. Bank, 102 N. Y., 
 
 464 37 
 
 Thierney vs. Crawford, 33 Hun, 366 84 
 
 Third Ave. E. E. Co. vs. Ebeling, 100 N. Y., 98 100 
 
 Thornall vs. Turner, 23 Misc., 363; 51 Supp., 214 69 
 
 Thornton vs. Moore, 56 Supp., 1100; 26 Misc., 120 77 
 
 Tiffany vs. Lord, 65 N. Y., 310 73 
 
 Toher vs. SchaefPer, 92 Supp., 795 63 
 
 Tooley vs. Bacon, 70 N. Y., 34 104 
 
 Torey vs. Willard, 8 Supp., 392 75 
 
 Transfer Penalty Cases, 92 Supp., 322 89 
 
 True vs. Sibley, 29 Supp., 704 82 
 
 Tucker vs. Gilman, 58 Hun, 167; 11 Supp., 555 90 
 
 TJhler vs. Eeyer, 4 Supp., 834 33 
 
 Union Bank of Brooklyn vs. Case, 84 Supp., 551 108 
 
 Union Trust Co. vs. Whiton, 78 N. Y., 491 109 
 
 U. S. Title & Guar. & Ind. Co. vs. Eoyal, 87 Supp., 457 46 
 
 Tan Allen vs. Am. Natl. Bk., 10 Abb. Pr., N. S., 331 Ill 
 
 Tan Bussum vs. Met. L. Ins. Co., 16 Misc., 40; 37 Supp., 
 
 665 109 
 
 Tan Doorenvs. Jelliffe, 1 Misc., 354; 20 Supp., 636 77 
 
 Tan Horn vs. France, 32 Hun, 504 93 
 
 Tan Olinda vs. Hall, 82 Hun, 357; 31 Supp., 495 66 
 
 Tan Ouden vs. Morris, 19 Misc., 497; 43 Supp., 1168 88 
 
 Tan Orden vs. Tan Orden, 27 A. D., 136 48 
 
 Tan Kamen vs. Eoes, 20 Supp., 548 76 
 
 Ton Keller vs. Schulting, 45 How., 139 109 
 
XXViii TABLE OF OASES, 
 
 PAGE 
 
 Wood vs. Eichardson, 91 Hun, 132; 36 Supp., 1001 105 
 
 Walker vs. Baermann, 44 A. D., 587; 61 Supp., 91 22, 
 
 Wallace vs. Berdel, 101 N. Y., 13 39 
 
 Wallace vs. Vacuum Oil Co., 128 N. Y., 579 103 
 
 Walls vs. Hemstead Bd. of Education, 9 A. D., 143 96 
 
 Walsh vs. Bklyn. Union El. Ky., 69 Ad., 389 78 
 
 Walsh vs. Brown, 6 Supp., 97 33 
 
 Wand vs. Kobarge, 24 Misc., 273; 53 Supp., 700 103 
 
 Ward vs. Craig 101 
 
 Watts vs. Bd. of B., 9 A. D., 143 101 
 
 Weeks vs. Southwick, 12 How., 170 US 
 
 Wells Fargo & Co. vs. W. C. & P. C. E. Co., 12 A. D., 47; 
 
 42 Supp., 225 45 
 
 West vs. Wright, 86 Hun, 436 ; 33 Supp., 898 95 
 
 Wheelock vs. Lee, 74 N. Y., 495 73 
 
 Whipple vs. Williams, 4 How., 28 lia 
 
 White vs. Lawyers' Surety Co., 84 Supp., 247 61 
 
 Whitney vs. Town of Ticonderoga, 53 Hun, 214 , : 98 
 
 Whitney vs. Townsend, 7 Hun, 233 84 
 
 Wilbur vs. Wiltsey, 13 How. Pr., 506 108 
 
 Wilkinson vs. N. Y. C. Ey. Co., 99 Supp., 380 7a 
 
 Willis vs. Parker, 30 Misc., 750; 32 Supp., 1078 lOT 
 
 Willink vs. Eenwick, 22 Wend., 608 28 
 
 Wilson vs. Lange, 84 Supp., 519 115 
 
 Wicherow vs. Slayback, 158 N. Y., 649 lOa 
 
 Wolf vs. De Lorenzo, 22 Misc, 323; 49 Supp., 191 10& 
 
 Wood vs. Brown, 6 Daly, 428 107 
 
 Wood vs. Hall, 107 A. D., 628 105 
 
 Wood vs. Eichardson, 91 Hun, 332; 36 Supp., 1001 105 
 
 Woods vs. Kernan, 57 Hun, 215; 10 Supp., 654 39, 4a 
 
 Wolcott vs. Schnek, 16 How., 449 .' 40 
 
 Woolsey vs. Lasher, 35 A. D., 108; 54 Supp., 737 19 
 
 Wright vs. Terry, 24 Hun, 228 33 
 
 Zabriskie vs. Wilder, 12 Daly, 527 20 
 
 Za Zic vs. Eliam, 98 Supp., 652 102; 
 
TABLE OF CASES. Xxix 
 
 PAGE 
 
 Zieph vs. Eosenstein, 85 Supp., 871 21 
 
 Zies Loft vs. Blackburn Co., 45 Misc., 595 98 
 
 Ziininer vs. Met. St. Ey. Co., 28 A. D., 504; 51 Supp., 247. . 45 
 Zimmerman vs. Long I. E. E. Co., 14 A. D., 562 ; 43 Supp., 
 
 883 108 
 
 Zimmerman vs. Man. E. Co., 3 A. D., 219 ; 38 Supp., 362. . . 9ft 
 
THE APPELLATE TERM. 
 
 CHAPTER I. 
 
 ORIGIN— JURISDICTION— FORMATION OF— 
 TERMS— WHEN HELD— POWERS. 
 
 Sec. 1 — Origin. Sec. 4 — Terms — when and whera 
 
 Sec. 2 — Jurisdiction. held. 
 
 Sec. 3 — Formation. Sec. 5 — Powers of. 
 
 Sec. 1 — Origin. 
 
 By the constitution which went into effect January 1, 1895, 
 the Superior City Courts were abolished from and after Jan- 
 nary 1, 1896, and the jurisdiction exercised by them vested in 
 the Supreme Court. It was further provided that "Appeals 
 from inferior and local courts (which included the City Court 
 of the City of New York now heard in the Court of Common 
 Pleas for the City and County of New York and the Superior 
 Court of Buffalo, shall be heard in the Supreme Court in such 
 manner and by such Justice or Justices as the Appellate Di- 
 vision in the respective departments which include New York, 
 shall direct, unless otherwise provided by the Legislature." 
 
 Provision was also made for the division of the State into 
 four judicial departments, and the organization of an Appellate 
 Division for each department, and such Appellate Division 
 was to have the jurisdiction then exercised by the Supreme 
 Court at its General Term, and the General Terms of the Su- 
 perior City Courts. During 1895, appropriate legislation was 
 had in aiid of these constitutional provisions, and among other 
 1 1 *• 
 
2 ORIGIN. 
 
 things, Section 1000 of tlie Code of Civil Procedure was 
 amended by Chapter 946 of the Laws of 1895, by substituting- 
 the Appellate Division for the General Term. During the 
 same year the Justices of the Appellate Division of the Su- 
 preme Court in the First Department, in the exercise of both 
 constitutional and statutory powers (Laws of 1895, Chap. 553), 
 conferred upon them, made and established a rule (Kule 1 of the 
 rules for the hearing of appeals from the City and Municipal 
 Courts) , to the efPect that there should be a term of the Supreme 
 Court, to be held by three Justices of the Supreme Court, duly 
 designated to hold such term for the hearing of appeals from 
 the City Court, and the District Courts of the City of New York. 
 The Court was styled "The Appellate Term," and three Justices 
 have ever since been designated to hold the same. 
 
 Amidst all these changes, and up to 1902, the organization of 
 the City Court and its General Term remained as before, and 
 the jurisdiction of the Appellate Term, established for the pur- 
 poses aforesaid, was confined, so far as the City Court was con- 
 cerned, to the hearing of appeals from judgments and orders of 
 the General Term of the City Court. The Appellate Term then 
 sustained to the General Term of the City Court, generally 
 speaking, the same relation which the Court of Appeals sus- 
 tained to the General Term of the Supreme Court, and since 
 1895 has sustained to the Appellate Division of the Supreme 
 Court. Halliday v. Barber, 38 Misc. Rep., 116, s. c, 77 Supp. 
 98. 
 
 By amendment of Sections 322 and 324 of the Code of Civil 
 Procedure, made by Chapter 515 of the Laws of 1902, the Gren- 
 eral Term of the City Court was abolished, but the jurisdiction 
 it had possessed and exercised up to said time was not trans- 
 ferred as a whole or in general terms to either the Appellate 
 Division or the Appellate Term. Special provisions were en- 
 acted for the taking and hearing of appeals from the City Court. 
 By an amendment of Section 1344 of the Code of Civil Pro- 
 cedure, an appeal taken as prescribed in title III of Chapter 
 ^11 of said Code from judgment or order of the City Court, 
 
ORIGIN — JURISDICTION. 6 
 
 as ordered to be taken directly to the Supreme Court 
 id there heard by either the Appellate Division or by such 
 astice or Justices of the Supreme Court as may be designated 
 )r that purpose by the Justices of the Appellate Division sitting 
 I the first Judicial Department. The section last referred to 
 irther provided that the provisions of Title IV, of Chapter 
 ;il, relating to the hearing of appeals taken in the Supreme 
 ourt, and to the subsequent proceedings thereon, apply to an 
 ppeal taken asi prescribed in title III of the same chapter, 
 ections 1346 to 1350 contained in Title IV thus referred to, re- 
 ite to appeals to the Appellate Division from final judgments, 
 iterlocutory judgments, and certain orders expressly enumer- 
 ted in actions brought in the Supreme Court or a Superior City 
 ourt. 
 
 By Sections 3188 and 3189, contained in Title I of Chapter 
 IX. of the Code, specific provision was made for the taking of 
 ppeals from judgments, interlocutory judgments, and orders 
 f the City Court to the Supreme Court, and by Section 8190 it 
 'as provided, that with an exception not necessary to be stated 
 ere, Tities I, III and IV, of Chapter XII of the Code of Civil 
 'rocedure, as far as the same are applicable thereto, apply to, 
 nd govern an appeal taken as prescribed in either of the last 
 ivo sections. 
 
 For the foregoing history of the Appellate Term we are in- 
 ebted to the able opinion of the Hon. John J. Freedman, 
 lie late Presiding Justice of that Term, in Dickson vs. Man- 
 attan E. R. Co., 45 Misc., 572, s. c, 91' Supp. 36. See also, 
 [uigg vs. International Shirt & Collar Co., 16 Misc., 39, s. c, 
 7 Supp., 916. 
 
 Sec. 2 — Jurisdiction. 
 
 The creation of this Court being statutory, its powers are 
 erived from the statute. Leavitt vs. Katzoflf, 43 Misc., 26; 
 c, 86 Supp., 495 ; Cohen vs. Eidgewood Shirt Co., 84 Supp., 
 88, and cases cited. See also, Pratt vs. Baker, 88 Hun, 301, 
 . c, 34 Supp., 766 ; Sinsheimer vs. N. Y. C. & H. E. E. E. Co., 
 1 Misc., 45, s. c, 46 Supp., 887. 
 
4 JURISDICTION. 
 
 The jurisdiction of the Appellate Term to entertain and de 
 termine appeals from judgments and orders of the Citj 
 Court is given by virtue of Sections 1344 and 3188 to 3190 o: 
 the Code of Civil Procedure, inclusive, and to entertain and de 
 termine appeals from the Municipal Court by virtue of Sec 
 tion 310 of the Mun. Ct. Act., which sections read as follows : 
 
 §1344. [Am'd, 1895, 1902, 1904.J Appeal, where and ho'B 
 heard. 
 
 An appeal taken as prescribed in ttiis title, must be heard by th< 
 appellate division of the supreme court, except that appeals from the 
 judgment of any municipal court in either of the boroughs of Manhattan 
 or the Bronx in the city of New York, or from a judgment or order of the 
 city court in the city of New York, may be heard hy the appellate divisior 
 of the supreme court, or by such justice or justices of the supreme courf 
 as may be designated for that purpose by the justices of the appellate 
 division sitting in the first judicial department. In case an appeal is 
 heard by a justice or justices of the supreme court as hereinbefore pro- 
 vided, the justice or justices by whom such appeal was determined, or a 
 justice of the appellate division in the first judicial department, may allow 
 an appeal to be taken to such appellate division from such determination; 
 and appeals from inferior courts heretofore heard by the superior court of 
 Buffalo shall be heard by the appellate division of the supreme court in 
 the fourth judicial department, or by such justice or justices of the 
 supreme court as may be designated for that purpose by the justices of the 
 appellate division of the fourth judicial department. The provisions of 
 title fourth of this chapter, relating to the hearing of appeals, taken in 
 the supreme court, and to the subsequent proceedings thereupon, apply 
 to an appeal taken as prescribed in this title, except as specified in the 
 next section. 
 
 §3188. [Am'd, 1895, 1902.] Appeal from a judgment. 
 
 An appeal to the supreme court may be taken from a final or inter- 
 locutory judgment rendered in the city court of the city of New York in 
 a case where an appeal may be taken to the appellate division of the 
 supreme court from a final or interlocutory judgment rendered in the 
 supreme court, as prescribed in section 1346 and section 1349 of this act. 
 
 §3189. [Am'd, 189S, 1902.] Id.; from an order. 
 
 An appeal to the supreme court may also be taken from an interlocu- 
 tory judgment rendered, or an order made at chambers, or at a special 
 term or a trial term of said city court, or from an order made by a judge 
 thereof out of court, in a case where an appeal may be taken to the appel- 
 late division of the supreme court from an interlocutory judgment ren- 
 dered, or an order made, in like manner, as prescribed in sections 1347, 
 1348, 1349 of this act. Upon such an appeal the supreme court shall 
 have full power to review any exercise of discretion by the court or judge 
 below. 
 
 §3190. [Am'd, 1902.] Time to appeal and proceedings 
 thereupon. 
 
 An appeal, authorized by either of the last two sections, must be 
 taken within ten days after service of a copy of the judgment or ordei 
 
'RISDICTION — FORMATION — TERMS; WHEN AND WHERE HELD. 5 
 
 pealed from, and a written notice of the date of the entry thereof. In 
 3ry other respect, titles first, third and fourth of chapter twelfth of this 
 L, so far as the same are applicable thereto, apply to and govern an 
 peal, taken as prescribed in either of the last two sections. 
 
 "Sec. 310 (Mun. Gt. Act). When appeal may be taken. 
 
 An appeal from a judgment rendered in an action, or a final order 
 Lde in summary l)roceedings in the Municipal Court of the City of New 
 irk, or from orders as hereinbefore provided, may be taken to the 
 preme Court. Such appeal shall be heard in such manner and by such 
 3tice or justices as the appellate division of the supreme court in the 
 licial department, embracing the district wherein the action is brought 
 all direct, except that the appellate division of the second judicial de- 
 rtment may direct that such appeal may be heard directly before that 
 iirt. The appellate court may reverse, affirm or modify the judgment, 
 ier or final order appealed from, and where a judgment, order or final 
 ier is reversed, may order a new trial, in- the municipal court in the 
 strict in which the action is brought. Where a judgment, order or final 
 der is modified or a new trial is ordered, costs shall be In the discretion 
 the appellate court." 
 
 Sec. 3 — Formation of. 
 
 The Judges holding the term are designated by the Appellate 
 ivision from among the Supreme Court Judges of the 
 irst Department, in accordance with the provisions of Sec- 
 3n 1344 of the Code of Civil Procedure (supra). Usually 
 le of the designated Judges presides at the term during the 
 itire year. The other two Judges are selected from the whole 
 imber of remaining Supreme Court Judges in that depart- 
 ent, and sit only for the first two weeks of the term, being 
 signed to hold trials or special terms during the remaining 
 o weeks of the month. 
 
 This method has met with the approval of the Bar, and is to 
 : preferred to the former method of having an entirely new 
 t of judges each term. . It tends to preserve uniformity of de- 
 sions both upon the law and the practice. 
 The presiding Justice signs all orders both original and as 
 ■settled, and during recess passes upon such motions as can 
 made without being placed upon the regular motion calendar. 
 
 Sec. 4 — Terms — Where and When Held. 
 
 The terms must be held within the first judicial department, 
 lection 1344 of the Code of Civil Procedure [supra] ) and are 
 
6 POWERS. 
 
 held in the County Court House of the County of New York 
 ( See Rule 1, page 7, ) 
 
 Sec. 5 — Powers. 
 
 The Court has power over its own records and calendar 
 Once the case upon appeal from a City Court Judgment, or th( 
 papers upon an appeal from an order of the City Court, or th( 
 return from a Municipal Court, have been placed on file in th( 
 Appellate Term, they can only be removed therefrom by ordei 
 granted upon an application made in that Court for that pur- 
 pose. An order made in a lower Court recalling the return for 
 correction or amendment would be of no force, and the Clerk 
 of the Appellate Term would disregard such an order. (Keoppel 
 vs. Keoppel, 95 Supp., 812,) 
 
 The power of the Appellate Term over a case upon an ap- 
 peal from a judgment of the City Court is conferred upon it by 
 Eule 3 of the Kules for the hearing of appeals from the City 
 and Municipal Courts. After the case has been settled in the 
 Court below so far as the power to entertain a motion to dis- 
 miss an appeal for failure to cause the return to be filed and 
 serve the proper papers, a motion for that purpose should be 
 made in the Appellate Term and not in the Court below. 
 (McCarthy vs. Met; St. Ey. Co., 96 Supp., 139.) 
 
CHAPTER II. 
 
 RUIiES. 
 
 Rule 1 — Terms. Rule 5 — Brief — Form and Filing — 
 Rule 2 — Calendar and Filing Re- Submission of Appeal and 
 
 turn. Argument. 
 
 Rule 3 — Failure to File Return and Rule 6 — Default in Appearance — 
 
 Motion for Dismissal Result and Effect of. 
 
 Therefor. Rule 7 — Leave to Appeal to Appel- 
 Rule 4 — Motion for Reargument late Division — Motion for. 
 
 and Briefs Thereon. Rule 8 — Motions Generally — Prac- 
 tice upon and Calendar of. 
 
 The practice in the Appellate Term is governed by rules laid 
 down by the Appellate Division, and such other rules as have 
 from time to time been adopted by the Judges of the Appellate 
 Term, and are as follows : 
 
 Rules for tbe bearing' of appeals from the 
 City Court of the City of New York, and from 
 the Municipal Court in the Boroug-hs of Man- 
 hattan and The Bronx: 
 
 Rule I — Terms. 
 
 Eule 1. There shall be a term of the Supreme Court for the 
 hearing of appeals from the City Court and the Municipal Court 
 of the City of New York in the Boroughs of Manhattan and the 
 Bronx which shall commence on the first Monday of October, 
 November, December, January, February, March, April, May 
 and June in each year and shall continue from day to day dur- 
 ing each of said months until all appeals ready for hearing 
 are heard and disposed of. This term of the court shall hold 
 its sessions in the Court House in the County of New York, and 
 shall be held by three Justices of the Supreme Court, duly 
 
8 CALKNlJAll AND FILING KETUllN. 
 
 designated to hold said term, and sliall be known as the Appel- 
 late Term. 
 
 Rule II — Calendar and Filing Betxim. 
 
 The clerk of such term of the Supreme Court shall make up 
 a calendar of all appeals to be heard each term, and publish the 
 same in the Law Journal, at least five days before the commence- 
 ment of the term. No appeal shall be placed on such calendar 
 unless the return from the Court below is duly filed with the 
 Clerk of such term at least eight days before the commencement 
 of the term; nor in the case of appeals from the City Court, 
 unless an affidavit is filed with such Clerk, at least eight days 
 before the commencement of the term, by which it appears that 
 three copies of such return duly printed, as reqliired by the Gen- 
 eral Eules of Practice, have been served upon the attorney for 
 the respondent. Upon such return being filed as aforesaid, and 
 in the case of appeals from the City Court, upon an affidavit 
 as aforesaid being also filed, the clerk shall place the appeal 
 upon the calendar in the order in which the return was filed. 
 
 Upon an appeal from the City Court the judgment or order 
 of the Court shall be entered in the office of the Clerk of the 
 Supreme Court; a certified copy of such judgment or order 
 sihall be annexed to the return from the City Court, which 
 certified copy and return shall be transmitted to the City Court, 
 as required by Section 1345 of the Code of Civil Procedure. 
 Upon an appeal from the Municipal Court the judgment or order 
 of the Appellate Term shall be entered in the office of the Clerk 
 of the Supreme Court, and a certified copy thereof annexed to the 
 return received from the Municipal Court, which return and 
 certified copy of the judgment or order shall be returned to the 
 District of the Municpal Court, from which the appeal was 
 taken, as provided by Section 327 of Chapter 580 of the Laws 
 of 1902, which shall remain on file in the said Municipal Court. 
 (For practice in making and entering orders see Chap. VII, 
 page 56 post.) 
 
FAILURE TO FILE RETURN AND MOTION FOR DISMISSAL. 9 
 
 Rule III — Failure to File Return and Motion for Dismissal Therefor. 
 
 In appeals from the City Court in case the appellant does 
 aot cause the return to be filed with the clerk of the said Appel- 
 late Term, and print and serve three copies thereof upon the 
 attorney for the respondent, as required by the General Rules 
 Bf Practice, within ten days after the settlement of the case 
 upon appeal, and in case of an appeal from an order of the City 
 Court, within ten days after service of the notice of appeal upon 
 the attorney for the respondent, the respondent may move, upon 
 five days' notice, on the first day of the term of such court, to 
 iismiss the appeal, and the appeal shall be dismissed unless the 
 tim'e of the appellant to cause such return to be filed and copies 
 thereof to be printed and served be extended by the justices 
 assigned to hear such appeals, or one of them, for good cause 
 shown. 
 
 In appeals from Municipal Courts of the City of New York^ 
 if the appellant does not procure the return to be made to the 
 court within the time prescribed by section 317 of chapter 580 
 of the Laws of 1902, the respondent may move, on five days' 
 aotice, to dismiss the appeal, and such appeal shall be dismissed 
 anless the justices assigned to hear such appeals, or one of them, 
 for good cause shown, shall extend the time. If the court below 
 shall not make the return as prescribed by section 317, chapter 
 580 of the Laws of 1902, either party may move the Appellate 
 Term, upon five days' notice to the attorney for the adverse 
 party and to the trial justice, to compel such return by attach- 
 nent. 
 
 (As to the practice under the last provision, see Chap. V^ 
 3ec. 3, Subdiv. 3, page 28 post.) 
 
 Rule IV — Reargument — Motion For and Briefs Thereon. 
 
 Motions for re-argument will only be heard on notice to the 
 idverse party at the next succeeding term after the decision; 
 inch notice must state briefly the grounds upon which re-argu- 
 nent is asked, and such motions must be submitted on printed 
 
10 BRIEFS, FORM OF, ETC. — SUBMISSION AND ARGUMENT. 
 
 hriefa stating concisely the parts supposed to have been over- 
 looked or misapprehended by the Court, with proper reference 
 to the particular portion of the case, and the authorities re- 
 lied upon, together with copies of the opinions, if any, and 
 counsel will not be heard orally. (For practice under this rule 
 see Chap. V, Sec. 3, Subdiv. 4, page 30 post.) 
 
 Rtde V — Briefs — Form and Filing — Submission of Appeal — Argument. 
 
 Eule 5. The cases and points ana all other papers furnished 
 to the Appellate Term in an appeal from the City Court shall be 
 printed as provided for in Eule 43 of the General Kules of Prac- 
 tice. Tl^e points on an appeal from the Municipal Court shall 
 be printed as therein provided, or typewritten. In every case on 
 an appeal from the Oity Court or the Municipal Court the ap- 
 pellant must, at least four days before the first day of the term 
 at which the appeal is noticed for argument, :file with the Clerk 
 of the Appellate Term the requisite number of copies of his 
 points to be used upon the hearing, indicating thereon the num- 
 ber of the appeal on the calendar published in the Law Journal, 
 and shall also, at least four days before the first day of the said 
 term, serve a copy of said points upon the attorney for the re- 
 spondent. Upon failure so to do the appeal may, when called 
 for argument in its regular order on the calendar, be dismissed, 
 or the hearing thereof adjourned to the next term, as the Court 
 may determine. Upon the first day of the term and before the 
 argument the respondent must serve a copy of his points upon 
 the attorney for the appellant, or upon the appellant's counsel ; 
 and file with the clerk the requisite number of copies thereof 
 to be used upon the argument; said copies also to contain the 
 number of the case upon the calendar, as published in the Law 
 Journal. No further time for filing points will be granted and 
 no other points will be received or considered, unless the court 
 shall, by its own motion, direct further points to be submitted. 
 No appeal will be heard or received on submission unless it has 
 Ibeen noticed for argument, and proof of service thereof filed 
 
'AKGUHENT — DEFAULT — LEAVE TO APPEAL TO APP. DIV. li 
 
 with the Clerk of the Appellate Term not less than six days be- 
 fore the first day of the term. All appeals must be heard or 
 submitted when regularly called for argument, unless the court, 
 for cause shown, shall adjourn the hearing until a subsequent 
 term; and no appeal shall be submitted without argument un- 
 less the points have been filed and served as hereinbefore pro- 
 vided. In the argument of an appeal from an order, or from a 
 judgment of the Municipal Court, not more than fifteen minutes 
 shall be occupied by counsel on either side ; and in the argument 
 of an appeal from a judgment of the City Court not more than 
 thirty minutes shall be occupied by counsel on either side, ex- 
 cept by express permission of the court. (See Chap. VI, page 
 52, on arguments and briefs.) 
 
 Rule VI — Default in Appearance — ^Result and Effect of. 
 
 If the appellant does not appear upon the call of the calen- 
 dar, the judgment or order appealed from shall be affirmed. If 
 the appellant appears and the respondent fails to appear, the ap- 
 pellant may either " argue, or submit his case, but judgment 
 of reversal by default will not be allowed. 
 
 Rule VII — Leave to Appeal to Appellate Division — Motion for. 
 
 An application to appeal to the Appellate Division of the 
 Supreme Court, from a determination of the Appellate Term, 
 under Section 1344 of the Code of Civil Procedure, must be 
 made in writing on notice to the adverse party upon the first day 
 of the term folloimng the term in which the case was decided, 
 and such application must state facts in full and special reasons 
 why such an appeal should be allowed, and must be submitted 
 without oral argument. ( For practice under this rule see Chap. 
 V, Sec. 3, Subdiv. 4, page 34 post.) 
 
 Rule VIII — ^Motions Generally — Practice Upon and Calendar. 
 
 Eule 8. Five days' notice of motion shall be given of all mo- 
 tions made under Eule 3. A notice of such motion, with proof of 
 
12 MOTIONS — PKACTICE UPON — CALENDAR. 
 
 service thereof, must be filed with the clerk, together with a note 
 of issue, on the Friday preceding the commencement of the term 
 for which the motion has been noticed. In all other cases, 
 whether a motion has been founded upon regular notice or an 
 order to show cause, the notice of motion or order to show 
 cause, with proof of service thereof, together with a note of 
 issue, must be filed with the clerk on the Friday preceding the 
 commencement of the term. The Motion Calendar will be pub- 
 lished on the Saturday preceding the commencement of the 
 term, but no motion will be placed thereon, except upon a com- 
 pliance with this rule. This Motion Calendar will not be called 
 and no oral argument will be allowed in any case upon such cal- 
 endar. The papers upon which the motion is made and the 
 answering. affidavits, if any, must be filed with the Clerk of the 
 Appellate Term at or before twelve o'clock noon of the day for 
 which the motion is noticed. Except when the Appellate Term 
 shall otherwise direct, all decisions, either in cases and upon 
 appeal or on motion, will, when announced, be accompanied by 
 an order properly signed. A motion for a resettlement of such 
 order must be made upon two days' notice. An appeal to the 
 Appellate Division from an order granting a new trial will not 
 be allowed unless the appellant files with his notice of applica- 
 tion for leave to appeal a stipulation that if the order appealed 
 from be affirmed, or the appeal therefrom dismissed, judgment 
 absolute shall be rendered against him. 
 
 Calendar Rule. » 
 
 The calendar will be called as follows : 
 
 The calendar of Appeals from Orders and Judgments) of the 
 City Court in the forenoon of the first day of the term at 10.30 
 A. M. The Calendar of Appeals from Orders and Judgments 
 of the Municipal Court on the second day of the Term at 10.30 
 a. m. 
 
 If a motion affect any appeal on the calendar, counsel are re- 
 quested to call the attention of the clerk to the fact. 
 
 Briefs of counsel, when reference therein is made to the testimony givei 
 UTJon the trial must give the number of the f oho in the printed case if an appea 
 from the City' Court, and the number of the page in the record if an appeal fron 
 the Municipal Court. If the appellant's brief fails to comply with this rule tht 
 
CHAPTER III. 
 
 LPPEALS FROM ORDERS AND JUDGMENTS 
 OF THE CITY COURT. 
 
 ec. 1 — Appeals from Orders of the Sec. 3 — Certification ' or Waiver"' of 
 City Court. by Stipulation.. 
 
 ec. 2 — Appeals from Judgments of 
 the City Court. 
 
 Sec. 1 — Orders — Appeal from City Court. 
 
 Appeals from Orders. Where it is sought to review an order 
 f the City Court, the papers: referred to in the order, as having' 
 leen used upon the motion, must be printed as required by Eule 
 '', of the General Rules of Practice, which provides as follows.: 
 
 "When an order is entered, all the papers used or read on the motion 
 n either side, shall be specified in the order, and shall be filed with the 
 lerk, unless already on file, or otherwise ordered by the court, or the 
 rder may be set aside as irregular, with costs. The clerk shall not enter 
 uch order unless the papers are filed, except when otherwise specially 
 irected by the court." 
 
 On an appeal from an order, the determination of the Judge 
 elow, as to whether all the papers used on the motion for the 
 rder were printed, tcill not he reviewed. Shipherd vs. Cohn, 
 6 Supr. Ct., 525; a c, 4 Supp., 393. 
 
 An appeal from an order will he dismissed where it appears 
 rom the record that affidavits used on the motion, and recited 
 'I the order, have not heen printed. Cowen vs. Arnold, 57 Hun, 
 88; a c, 11 Supp., 95. 
 
 The practice in the Appellate Term, relating to the return to 
 tie City Court, of papers upon appeals from orders, for correc- 
 ion, is laid down in Chap. V, entitled Motions, page 44 post. 
 
 The record constituting the appeal isi entitled, "Papers on ap- 
 eal from order," and must be filed with the Clerk of the Ap- 
 ellate Term at least eight days before the first day of the term, 
 >r which it is noticed for argument, together with a note of is- 
 iie, which note of issue must be filed at the same time and the 
 eturn must be properly certified, unless certification is waived 
 
 Note. — For the practice on appeals from the City Court see "Seabury 
 1 City Court Practice," Chap. XII. 
 
 13 
 
t OKDEKS — APPEAL FROM — CERTIFICATION OB WAIVER OF. 
 
 Y stipulation— see Section 3194-A of the Code of Civil Pro- 
 ;dure, and the return must also be accompanied by an affidavit 
 lowing service of three copies of the printed papers upon the 
 ttorney for respondent. Rule 2, page 8 ante. 
 
 When these requisites are complied with, the case is placed 
 pon the calender by the Clerk of the Appellate Term and will 
 ppear under its appropriate number. 
 
 Sec. a — Appeals from Judgment of the City Court. 
 
 The record upon an appeal from a judgment of the City 
 ourt is entitled "Case on Appeal" and the practice as to filing 
 le return, note of issue, proof of service of three copies upon 
 jspondent's attorney, service of notice of argument and filing 
 roof of service thereof, is the same as hereinbefore stated to 
 e upon the return of the papers upon an appeal from an 
 rder, and the same number of copies of the case on appeal 
 lust be handed to the Clerk, in accordance with Eule 2, 
 age 8 ante. 
 
 Sec. 3 — Certification and Stipulation. 
 
 The proper certificate or a stipulation under Section 3194a 
 lust be annexed to the printed papers. Section 3194a of the 
 lode of Civil Procedure, reads as follows : 
 
 § 3194a. [Added, 1904.] Appeals from the City Court of the 
 Sity of New York. 
 
 Where, on an appeal from a judgment or order taken as prescribed 
 I article fourth of title first of chapter twenty of this act, a party 
 lall present to the clerk a printed copy of the judgment roll or order 
 ppealed from, it shall be the duty of the clerk, as required, to compare 
 id certify the same, for which service the clerk must receive, for the use 
 ' the city of New York a fee at the rate of one cent per folio. Where 
 le attorneys for all the parties interested, other than parties in default, 
 - against whom a judgment or a final order has been taken, and is not 
 ppealed from, stipulate in writing that a paper is a copy of any paper 
 hereof a certified copy is required by any provisions of this act, the stipu- 
 ,tion takes the place of a certificate, as to the parties so stipulating, and 
 le clerk is not required to certify the same, or entitled to any fees there- 
 ir. And the paper so proved by stipulation shall be received by the 
 erks of all the courts and by the courts and shall be used or filed with, 
 le same force and effect as If certified by a clerk of the court. 
 
 See a;lso. Section 3301 of the Code of Civ. Pro. 
 
OBKTIFICATE — ^APPEAL FROM ORDER OF CITY COURT. 15 
 
 Forms. 
 
 The following forms may be used for certificates and stipula- 
 »ns under the foregoing section of the Code : 
 
 srtificate to Ibe Used on Appeal from Order 
 of the City Court ivhere no Stipulation is 
 Made. 
 
 CITY COURT OF THE CITY OF NEW YORK. 
 
 against 
 
 Appellant, 
 
 Respondent. 
 
 Clerk's Office, City 
 Court of tlie City 
 of New York. 
 
 I, , Clerk of the City Court of the 
 
 ty of New York, having compared the annexed printed papers 
 
 appeal in the above-entitled action with the originals on file 
 
 this office, do certify that the same are correct transcripts 
 
 erefrom and of the whole of said originals. 
 
 In Witness Whereof, I have hereunto subscribed 
 eal.) my name and affixed the seal of the City 
 
 Court of the City of New York, this day 
 of , A. D., 190 . 
 
 Clerk. 
 
16 FORM OF STIPULATION WAIVING CERTIFICATION. 
 
 Stipulation on Appeal from Order of the 
 City Court, -where Certificate is Waived. 
 
 It is hereby stipulated tliat the foregoing are true copies of 
 the original' papers on this motion and of the whole of such 
 papers, of the order appealed from and of the notice of appeal, 
 now on file in the office of the Glerk of the City Court of the 
 City of New York, and that pursuant to Section 3194a of the 
 Code of Civil Procedure, certification thereof is hereby waived. 
 
 Dated, New York, , 190 . 
 
 Attorney for Plaintiff, 
 Attorney for Defendant. 
 
 Stipulation on Appeal from Judgment of City 
 Court, Where Certificate is Waived. 
 
 SUPKEME COURT, 
 
 First Department — Appellate Term. 
 
 Appellant, 
 against 
 
 Eespondent. 
 
 Pursuant to Section 3194a of the Code of Civil Procedure we 
 ihereby severally stipulate that the foregoing copy of printed 
 
OEDEB SETTLING CASE — APPEAL FROM JUDGMENT CITY COURT. 17 
 
 <;ase on appeal in the above-entitled action, is a true copy of the 
 original case as settled and ordered on file by the trial Justice; 
 and we hereby severally waive the certification of said copy by 
 the Clerk of the City Court of New York for the purposes of 
 filing the same with the Clerk' of the Appellate Term of the Su- 
 preme Court, and consent that said copy be filed in the Supreme 
 Court as the return and record from said City Court on which 
 the said appeal sihall be heard by said Appellate Term with the 
 same force and effect as if the record were certified by the Clerk 
 of said City Court pursuant to 'Section 1353 of said Code of 
 Civil Procedure. 
 
 Dated, , 190 . 
 
 Attorney for Plaintiff, 
 
 Attorney for Defendant 
 
 Opder Settling Case on Appeal from Judg>- 
 ment of the City Court. 
 
 Pursuant to Section 1353 of the^Coderof CiviUProcedure, it is 
 ordered that the foregoing printed record and copy of case as 
 settled in the above-entitled cause be filed in the oflftce of the 
 Clerk of the Supreme Court, Appellate Term, First Department, 
 as and for the return and record on appeal in said cause from 
 judgment at Trial Term of the City Court of the City of New 
 York. 
 
 Dated, , 190 . 
 
 J. C. C. 
 
18 OLEEK^S CERTIFICATE — ON APPEAL FKOM CITY COUET. 
 
 Certificate of Clerk Wliere Stipulation is not 
 
 Made. 
 
 CITY COURT OF THE CITY OP NEW YOEK. 
 
 Plaintiff-Eespondent, 
 
 TS. 
 
 Defendant- Appellant. 
 
 Clerk's Office, 
 City Court of the City of New York. 
 
 ss. 
 
 I, , Clerk of the City Court of the- 
 
 City of New York, having compared the annexed printed casifr 
 on appeal in the above-entitled action with the original papera 
 on file in this office, do certify that the same are correct tran- 
 scripts therefrom, and of the whole of said originals. 
 
 In Witness Whereof, I have hereunto subscribed 
 my name and affixed the seal of the City 
 [Seal. J Court of the City of New York, this 
 
 day of , A. D., 190 . 
 
 (Clerk.) 
 
 Where a case is not certified as required ty law, it will "be 
 sent hack for a proper certificate. Stanton vs. Supreme Council 
 of Catholic Mut. Ben. Assn., 8 Misc., 366 ; s. c, 29 Supp., 390. 
 
CERTIFICATE — FAILURE OF OR OBJECTION TO DEFECTIVE, 19 
 
 When appeal will be stricken from Calendar for want of 
 proper certification or stipulation. Crawford vs. Price, 68 Hun, 
 607; a c, 22Supp., 644. 
 
 Objection to form of certificate — how raised. Woolsey vs. 
 Lasher, 35 A. D., 108, at p. 110; s. c, 54 Supp., 737. 
 
 Where the trial court in settling a case on appeal improperly 
 strikes out papers which should be included, the Appellant may 
 pHnt them in order that the Appellate Court may decide 
 whether they should be included. Evans vs. Silbermann, 7 A. 
 D., 139 ; s. c, 40 Supp., 298. 
 
 Two independent appeals cannot be incorporated in one ap» 
 peal book. Geneva & W. Ey Co. vs. N. Y. O. & H. E. E. E. Co., 24 
 A. D., 335; 48 Supp., 842. 
 
CHAPTER IV. 
 
 MUNICIPAL COURT JUDGMENT OR ORDER- 
 APPEAL FROM— RETURN— HOW 
 MADE, ETC. 
 
 Sec. 1 — Return on Appeal from Mu- Subdiv. 2 — Practice where com- 
 
 nicipal Court. plete return cannot be made. 
 
 Subdiv. 1 — Mode of maliing re- Sec. 2 — Calendar Practice and No- 
 turn generally. tice of Argument. 
 
 Sec. 1 — Return on Appeal Municipal Court. 
 Subdiv. 1 — ^Mode of Making Return. 
 
 Section 317 of the Municipal Court Act provides that the 
 Clerk of the Municipal Court, upon payment of the costs and 
 fees, must within thirty days, make a return to the Appellate 
 Term. The -costs include the disbursements (Section 311), and 
 a fee of two, dollars for the return (Subdivision 3, Section 
 347) The return must contain all the proceedings including 
 the evidence and the judgment. Gardner vs. Smith, 2 Civ. Pro. 
 Eep., 420. 
 
 If the return, after filing^ is lacking in some particulars, in 
 order to amend the same, by the justice, application must he 
 made to the Appellate Term. Zabriskie vs. Wilder, 12 Daly, 
 527. 
 
 The stenographer's fees must be paid by the appellant, and 
 the stenographer must furnish the Clerk of the Municipal Court 
 with a copy of the minutes within ten days after his fees are 
 paid. (Sec. 317Mun. Ct. Act.) 
 
 The notice of appeal must be annexed to the return or the 
 appeal will be dismissed. 
 
 The allowance by the Justice, before whom the case is tried, 
 is essential ; without this the Clerk of the Appellate Term will 
 not accept or file the return. 
 
 Section 318 of the Municipal Court Act provides for the set- 
 tlement of the case upon three days' notice. It is the duty of the 
 appellant, or his attorney, to give this notice. Much delay, an- 
 
 20 
 
MUNICIPAL COURT KETUKN — PKACTICE WHEN INCOMPLETE. 21 . 
 
 noyance and sometimes the payment of costs will be avoided if 
 parties will observe the requirements of these two sections of 
 the Municipal Court Act. See Zieph vs. Eosenstein, 85 Supp., 
 871.* 
 
 *The settlement of the case referred to herein, however, does 
 not contemplate the service of proposed amendments and the 
 observance of the rules applicable to settlement of a case in the 
 City Court; the procedure being to procure the stenographers' 
 minutes 'to be filed with the clerk and serve the three days' notice 
 on the respondent, either party may upon the day of settlement 
 submit proposed amendments, thereupon the Justice prepares 
 the complete return and endorses his certificate thereon, to 
 which the minutes are attached. 
 
 Subdlv. 2 — Practice When Complete Return Cannot be Made. 
 
 Section 319 of the Municipal Court Act reads as follows : 
 § 319. When justice is dead, et cetera. 
 
 If the justice dies, becomes a lunatic, absconds, removes from the 
 state, or otherwise becomes unable to make the return, the appellate 
 court may receive afiBdavits, or examine witnesses, as to the evidence and 
 other proceedings taken, and the judgment rendered, before the justice; 
 and may determine the appeal, as if a return had been duly made by the 
 justice. 
 
 Under the phrase "or otherwise becomes unable to make the 
 return" the Appellate term has held, that where the steno- 
 grapher's minutes are lost, or if for any reason they cannot be 
 obtained, the Court will proceed to determine the appeal upon 
 aflldavits submitted by the respective parties. 
 
 In this event the appellant should cause the return to be made 
 by the lower Court as fully as possible, and at least eight days 
 before the case is argued should cause to be served upon the re- 
 spondent, or his attorney, affidavits as to what took place upon 
 the trial, stating as fully as possible the evidence given upon 
 the issue tried. 
 
 With these affidavits a notice should be served upon respond- 
 ent's attorney, to the effect that such affidavits will be read 
 upon the hearing of the appeal. If there is any dispute as to 
 what occurred upon the trial the respondent may hand up 
 
22 CALENDAE PRACTICE — NOTICE OF AEGUMBNT. 
 
 answering affidavits at the h.earing of tlie appeal, and the case 
 will be determined upon such testimony by the Appellate Term. 
 Austen vs. Columbia Lubricants Co., 85 Supp., 362 ; Brody vs. 
 Katz, 87 Supp., 452; Walker vs. Baermann, 44 A. D., 587; s. c, 
 61 Supp., 91. 
 
 Sec. a — Calendar Practice and Service of Notice of Argument. 
 
 The filing of the return is sufficient to cause the case to be 
 placed upon the calendar, where the same remains until dis- 
 posed of. ( Section 325 of the Municipal Court Act. ) To entitle 
 the same to be heard, it must be filed at least eight days before 
 the commencement of the term, and notice of argument must 
 also be served at least 8 days before the first day of the term 
 (Sec. 780 Code Civil Procedure) and unless proof of service of 
 such notice of argument is filed at least six days before the com- 
 mencement of the term (although the case will appear upon the 
 calendar if the return is filed at least eight days before), the 
 same will not be called for argument. Rule "5," page 10 ante. 
 See also rule as to filing briefs, etc., page 10 ante. 
 
 It must also be borne in mind that by the provisions of Sec- 
 tion 325 of the Municipal Court Act, the Appellate Term must 
 dismiss the appeal for want of prosecution, after the same has 
 been upon the calendar for more than two terms, unless for good 
 cause shown, the time of hearing is extended. This rule is rig- 
 idly enforced. 
 
 The return when settled and allowed by the justice of the 
 Municipal Court, and filed, is conclusive upon appeal. Eisenbud 
 vs. Gellert, 26 Misc., 367 ; s. c, 55 Supp., 952 ; Manning vs. Fer- 
 rier, 27 Misc., 522 ; s. c, 58 Supp., 332 ; Forman vs. N. Y. Trans. 
 Co., 95 Sup., 581. 
 
 If the return is incorrect or incomplete, the remedy is by mo- 
 tion to have it remitted to the lower Court for a further 
 or amended return. See Chap. V, page 45 post. 
 
 The method of making up a return upon an appeal from an 
 order of the Municipal Court is the same as upon an appeal 
 from a judgment, and the same calendar rules apply. 
 
CHAPTER V. 
 
 MOTIONS. 
 
 Sec. 1 — ^What Based Upon 
 
 vits, etc. 
 Sec. 2— Term and Recess Motions 
 
 Distinguished. 
 Sec. 3 — Term Motions. 
 
 Subdiv. 1 — Motion to Dismiss Ap- 
 peal for Failure to Print and 
 Serve Case — Appeal from City- 
 Court. 
 Subdiv. 2 — Motion to Dismiss Ap- 
 peal for Failure to File Return 
 from Municipal Court Appeal. 
 Subdiv. 3 — Motion to Compel Re- 
 turn by Attachment. 
 Subdiv. 4 — Reargument — Motion 
 for; or for Leave to Appeal. 
 
 ( 1 ) Reargument — when will be 
 Granted. 
 
 ( 2 ) Reargument — when denied. 
 
 (3) Stipulation, Form of — on 
 Application for Leave to Ap- 
 peal. 
 
 Subdiv. 5 — Motion for Restitu- 
 .tion. 
 
 (1) Jurisdiction to Entertain. 
 
 (2) When it Will be Granted. 
 
 (3) When it Should not be 
 Granted. 
 
 Aflada- Sec. 4 — Recess Motion — ^What Are 
 Moving Papers Upon — How 
 Motion Made. 
 
 Subdiv. A — To extend the time to 
 comply with the terms or con- 
 ditions imposed by an order. 
 
 Subdiv. B — To open a default or 
 relieve from neglect. 
 
 Subdiv. C — To Perfect an Appeal 
 when the Notice of Appeal has 
 not been served on all neces- 
 sary persons. 
 
 Subdiv. D — To remit return to 
 Lower Court for correction. 
 
 Subdiv. E — fTo remit return of 
 "Papers on Appeal" from or- 
 der of the City Court. 
 
 Subdiv. F — To procure amended 
 return from Municipal Court. 
 
 Subdiv. G — Stay of Proceedings 
 pending the appeal. 
 
 (1) From City Court Order or 
 Judgment. 
 
 (2) From Judgment or Order 
 of the Municipal Court. 
 
 Sec. 5 — Calendar Practice and Fil- 
 ing of Motion Papers. 
 
 Sec. 1 — ^What Based Upon — Affidavits, etc. 
 
 An application for an order is a motion. Section 768, Code 
 of Civil Pi'ocedute. 
 
 Motions are based upon affidavits setting forth the ground 
 upon which the moving party relies, and if there is opposition 
 thereto, the opposing party files answering affidavits. 
 
 It frequently happens in this Court that after the affidavits 
 upon both sides are filed with the clerk as required by the rules 
 of practice, that the moving party desires to file what he terms 
 ■"replying affidavits." Permission to do this is rarely granted; 
 if granted it usually leads to abuse. The so-called replying af- 
 fidavits are more frequently an attempt to make out a case 
 
 23 
 
24 MOTIONS — TERM AND RECESS — DISTINGUISHED. 
 
 "which has not been shown in the original pajjers, and to which 
 attention has been ca.lled by the answering affidavits. Poillon 
 vs. Poillon, 75 A. D., 536 at 538; s. c, 78 Supp., 323. Chapuis 
 vs. Long, 77 A. D., 272 at 274, s. c, 78 Supp., 1046. 
 
 It is only when new matter is set forth in the answering af- 
 fidavits that permission to reply thereto will be given, and then 
 only upon condition that copies of such affidavits be served 
 upon the adverse party, and an opportunity be given him to 
 answer them. 
 
 Sec. 2 — Term, and Recess Motions Distinguished. 
 
 Motions in the Appellate Term may properly be divided into 
 two classes, 
 
 I. Those which can only be made under Rule 8, upon a notice 
 of five days, which must be made returnable upon the first day 
 of the term, in which proof of service of the notice of motion 
 must be made, and a note of issue filed upon the Friday preced- 
 ing the commencement of the term and the motion placed upon 
 the motion calendar. 
 
 II. Those motions which may be made at any time during 
 the term, and sometimes designated "recess motions." 
 
 Of the first class are : 
 
 1. Motions to dismiss appeals for failure to make and serve 
 printed case or papers upon appeal ( Rule 3 ) ; 
 
 2. Motions to dismiss app'eals for failure to file return from 
 Municipal Court (under Rule 3) ; 
 
 3. Motions to compel return by attachment (Rule 3) ; 
 
 4. Motions for re-argument (under Rule 4) ; 
 
 5. Motions for leave to appeal to the Appellate Division (un- 
 der Rule 7) ; 
 
 6. Motions for restitution, under Section 323 of the Munici- 
 pal Court Act, and under Sections 1323 and 2263 of the Code of 
 Civil Procedure. 
 
 Of the second class are those embraced in Section 4, p. 41, etc., 
 post. 
 
TEEM MOTIONS. 25 
 
 Sec. 3 — Term Motions. 
 
 Subdiv. 1 — ^Motion to Dismiss Appeals for Failure to Print and Serve 
 Case, Appeal from City Court. 
 
 Rule 3, page 9, ante, proTides that the appellant must 
 cause the return to be filed with the Clerk of the Appellate 
 Term, and print and serve three copies upon the respondent's 
 attorney within ten (10) days after "settlement of the case upon 
 appeal" or in case at an appeal from an order within 10 days 
 after service of the notice of appeal upon the attorney for the 
 respondent or a motion to dismiss may be made by the re- 
 spondent. 
 
 (A motion to dismiss the appeal may be made for failure to 
 observe any of the provisions of this rule.) 
 
 Five days' notice of such a motion must be given and a note 
 of issue filed with the clerk of the Appellate Term, on the Friday 
 preceding the commencement of the term, who will place the 
 motion upon the mfltion calendar. The proper practice is to file 
 the moving papers with proof of service with the clerk at the 
 time the note of issue is filed, the answering aflfldavits to be 
 filed on or before 12 M. on Monday, the first day of the term. 
 ( See Eule 8, page 1 ante. ) 
 
 The affidavit upon which the moving papers are based should 
 show what the appeal was taken from, when it was taken, when 
 the case was settled, if it be an appeal from a judgment, and if 
 from an order when the notice of appeal was served, also, shoAV- 
 ing that the time fixed by the rule has elapsed, and that the 
 appellant is in default, and that no case or printed papers on 
 appeal has been served or filed, together with any other facts 
 tending to show lack of diligence on the part of the appellant 
 in complying with the rule. 
 
 There is a growing tendency on the part of the Court to more 
 strictly enforce this rule, and it will require the most positive 
 proof on the part of the appellant, that his failure to comply 
 with the rule is excusable, and has not been occasioned by his 
 own neglect, or costs will be imposed, and possibly the appeal 
 dismissed. 
 
26 MOTION TO DISMISS FOR FAILURE TO SERVE CASE. 
 
 Where papers on appeal are not served within the time al- 
 lowed by law, and no attempt is made to have the time ex- 
 tended or the default opened, the appeal will be dismissed. 
 
 The following opinion will illustrate the rule adopted by the 
 Appellate Term regarding dismissal on appeals. 
 
 SUPREME COUET— APPELLATE TERM. 
 
 (November, 1905, Term.) 
 
 By Mr. Justices Scott, Gildersleeve and MacLean. 
 
 Campbell, Jr. v. Wool worth — This action was tried in the Municipal 
 Court on June 27, 1905, and resulted in a judgment for the plaintiff. On 
 July 7, 1905, defendant perfected an appeal to this court. At some time 
 in July, it does not clearly appear when, the appellant directed the official 
 stenographer to furnish a copy of the minutes. The necessary steps were 
 not taken to bring the appeal on for argument at, either the October or 
 the November term, and on November 9th an order was made, on motion, 
 dismissing the appeal, with $10 costs, unless the appellant should pay $10 
 costs and cause the return to be filed within ten days, and argue the appeal 
 at the next (December) term of this court. The appellant neither paid 
 the $10 costs nor caused the return to be filed, and the respondent there- 
 upon entered an order dismissing the appeal absolutely. The appellant 
 now moves that his second default be opened, the order dismissing the 
 appeal vacated, and his time to cause the return to be filed further ex- 
 tended. This, of course, would involve a further postponement of the 
 appeal until the January term. The appellant attempts to excuse his 
 default in filing the return by showing that he had noticed it for settle- 
 ment for November 20, the last day given him to cause it to be filed, and 
 that owing to the absence of the justice a settlement could not then 
 be had. He offers no excuse for his failure to pay the $10 costs. It is 
 undoubtedly true that cases sometimes arise in which attorneys are pre- 
 vented through no fault of their own from causing the return to be filed 
 within the time fixed by an order such as was made in this case. When 
 it. so happens this court will not be slow to extend relief by enlarging the 
 time to cause the return to be filed. Such an application should, however, 
 be made promptly, and should be accompanied by proof that the party 
 apparently in default has used diligence in his efforts to comply with the 
 conditions of the order, and has in fact complied with the direction in 
 the order as to the payment of costs. These conditions have not been 
 complied with in the present case, and the motion must, therefore, be 
 denied, with $10 costs." (N. Y. Law Journal, Nov. 28th, 1905, p. 666.) 
 
 As to failure to comply with Rule 1^3. See Campbell vs. 
 Jughardt, 50 A. D., 460; 64 Supp., 198. 
 
MOTION TO DISMISS FOE FAILURE TO FILE RETURN. 27 
 
 Subdiv. 2 — ^Motions to Dismiss Appeals for Failure to File Return from 
 Municipal Court Appeal. 
 
 By Section 317 of the Municipal Court Act, tlie Clerk of the 
 Municipal Court is required to make the return within thirty 
 (30) days from the service of the notice of appeal upon him, 
 and payment of the costs and fees. The word costs in this sec- 
 tion must be held to include the necessary disbursements, by 
 Section 311 of this Act ; and also costs upon appeal if such are 
 Included in the judgment. 
 
 "The costs and disbursements" must be deposited, and the 
 fee (subdivision 3, Section 347), must be paid, or the Clerk 
 is not compelled to make the return. 
 
 It is the duty of the appellant to see that the case is settled 
 (Section 318), and the return made and filed with the Clerk of 
 the Appellate Term within the prescribed time (30 days). (Sec. 
 317 Mun. Ct. Act. ) The filing of the return is sufiflcient to cause 
 the case to be placed upon the calendar (Section 325), where it 
 remains until disposed of. 
 
 Five days' notice of motion to dismiss the appeal, for fail- 
 ure to comply with any of these provisions, must be given and 
 a note of issue filed with the Clerk of the Appellate Term, Eule 
 8, page 11 ante. 
 
 The motion must be made upon affidavits setting forth when 
 the judgment was obtained, the appeal taken, and facts show- 
 ing the failure of the appellant to comply with one or more 
 of the foregoing provisions. 
 
 If such notice of motion is made, and a note of issue is not 
 filed in accordance with the provisions of Eule 8, the motion 
 wiZZ not he placed upon the motion calendar and the party 
 served, upon proof of service upon him of the motion papers, and 
 proof that no note of issue has been filed, will be entitled to an 
 order dismissing such motion with costs. This applies to all mo- 
 tions which, are required to be made upon the first day of the 
 term. For neglect on the part of the appellant to comply with 
 "the provisions of Eule 8, costs will be imposed, even if the appeal 
 is not dismissed. Where the default is excused, and in cases 
 
28 FAILURE TO MAKE RETURN — COMPELLING RETURN. 
 
 where costs are imposfd without dismissal of the appeal, the 
 order usually made is one dismissing the appeal, unless the ap- 
 pellant causes the return to be filed within a specified time, 
 pays any costs imposed and argues the appeal at the next term 
 of Court. 
 
 Under Eule 8, page 11 ante^ an order will accompany 
 the decision, when handed down, and the prevailing party 
 should procure and serve upon his adversary a copy of such 
 order, with notice of its entry. 
 
 The appellant, however, is not relieved from the conse- 
 quences of a failure to comply with such an order by the fail- 
 ure of the respondent to serve him with a copy thereof, and no- 
 tice of its entry unless service is required hy the terms of the 
 order. Such orders are granted as a favor upon conditions, and 
 the party favored must not wait until the service upon him of 
 the copy of the order. Willink vs. Renwick, 22 Wend., 608; 
 Rosenburg vs. A. M. Eisenberg Co. (Motion, April Appellate 
 Term, 1905. Levenson vs. Kabinowitz; Law Journal, Nov. 28, 
 1905, page 666. 
 
 Such orders operate as a dismissal. Mahon vs. Mahon, 64 
 A. D., 262, s. c, 72 Supp., 102, and. no further action need be 
 taken except to enter an ex parte order dismissing the appeal, 
 with costs. For costs allowable see Chap. 12, page 83 post. 
 
 Subdiv. 3 — ^Motions to Compel Return by Attachment. 
 
 Rule 3, page 9 ante, provides for a motion to compel a 
 return to be made by attachment. The requirements of Rule 8, 
 page 12 ante, are applicable and must be followed. The no- 
 tice of motion with the accompanying papers must be served 
 upon the attorney for the adverse party, and also upon the Jus- 
 tice who tried the case. This last requirement is important, and 
 the motion will be denied if this is not done. 
 
 Section 317 of the Mun, Ct. Act reads as follows: 
 
 §317. Return. 
 
 The clerk of the court or his successor In office, must within thirty 
 days from the service of the notice of appeal and the payment of the cost 
 and fees as prescribed in this act, make a return to the appellate court. 
 
COMPELLING RETURN BY JUSTICE BY ATTACHMENT. 29 
 
 annex thereto the notice of appeal and the undertaking, if any has been 
 delivered to him, and cause the same to be filed with the clerk of the 
 appellate court. The return must contain all the proceedings, including 
 the evidence and the judgment. The stenographer's minutes of the evi- 
 dence must be furnished to the clerk, by the stenographer, within ten days 
 after the fees therefor have been paid. Such return must have indorsed 
 thereon the allowance of the justice before whom the action or proceeding 
 was tried. , 
 
 The reading of this section may cause some doubt in the 
 mind of the practitioner as to the exact method to pursue when 
 the Ck>urt below has failed to file or cause to be filed the return 
 upon appeal. This section would seem to indicate that upon 
 the Clerk of the Municipal Court devolves the duty of making 
 the return. This section is new and is constructed from Sec- 
 tion 3053 of the Code of Civil Procedure. That Section re- 
 quired the Justice to make the return and Rule 3, page 9, 
 provides that if the "Court below" fails to make the return, 
 either party may move the Court to compel such return to be 
 filed, and the notice of motion must be served upon the Trial 
 Justice to compel the making of such return by attachment. 
 
 Section 20 of the Mun. Ct. Act provides that the provisions 
 of the Code of Civil Procedure shall apply to the Municipal 
 Court as far as they can be made applicable, and are not in 
 conflict, etc. Section 3055 of the Code of Civil Procedure pro- 
 vides that the Appellate Court "may compel the Justice, by at- 
 tachment, to make or file a return or a further or amended 
 return." 
 
 The Justice of the Municipal Court must pass upon the 
 case when submitted (Sec. 318), and must endorse his allow- 
 ance upon the return. The clerk is a mere ministerial officer, 
 having no judicial functions, and the evident intent of the Leg- 
 islature was not that the power to make a return upon appeal 
 was to be vested in the Clerk, but simply that it was his duty 
 to attach all the proper papers to the case as settled and allowed 
 by the Trial Court upon an appeal and forward the same to the 
 Appellate Court when so directed by the Justice. 
 
 The Justice is the officer who is charged with the duty of 
 making the return which is to be examined by the Appellate 
 Court, and it is on him the notice of the application for an at- 
 
30 COMPELLING EETUEN — EEARGUMENT OB LEAVE TO APPEAL. 
 
 taclimeiit must be served, and the Warrant of Attachment must 
 be directed to him if one is issued. 
 
 The power to punish by fine and imprisonment, for neglect 
 of duty, is conferred upon the Appellate Court in general terms, 
 by Section 14, Subdivisions 7 and 8, of the Code of Civil Pro- 
 cedure. 
 
 The proceeding by attachment against a justice for failure 
 to make a return is in the nature of a proceeding to punish 
 for contempt of court for a neglect of duty, and the practice in 
 siuch proceedings is therefore regulated by Chapter 17 of the 
 Code of Civil Procedure. ( See Section 2266. ) The practice to 
 procure the return by attachment is to make a motion based 
 upon affidavits showing when the judgment was rendered, when 
 the appeal was taken (which must be more than thirty (30) 
 days prior to the making of the motion), and the efforts that 
 have been made to procure the filing of the return. The notice 
 should state that application will be made for an attachment 
 compelling the Justice to make such a return. Should the 
 Court grant the attachment, the proceedings thereafter are pro- 
 vided for in Title three (3) Chap. 17 of the Code of Civil Pro- 
 cedure. 
 
 Subd. 4 — Beargument, Motion for or for Leave to AppeaL 
 
 These motions are provided for by Kules IV and VII, pages 
 9 and 11 ante. The practice is to make the motion in the alter- 
 native, that is to say, for leave to appeal to the Appellate Divi- 
 sion or for a re-argument, although either can be made. Al- 
 though Kule IV provides that upon a motion for re-argument 
 the same must be submitted upon "printed briefs," Eule VII 
 contains no such requirement, and where the motion is made 
 in the alternative the Appellate Term has been accustomed to 
 entertain the motion upon typewritten briefs. Five days' notice 
 of these motions must be given. The requirement that such 
 motions will be heard only at the term next succeeding the one 
 at which "the case was decided" (Rule VII), or the "next sue- 
 
EEAEGTJMENT OR LEAVE TO APPEAL. 31 
 
 ceeding term after the decision" (Rule IV), is strictly enforced 
 in the Appellate Term. 
 
 It sometimes happens that decisions upon appeal are handed 
 down less than five days before the beginning of a subsequent 
 term, thus preventing the giving of the five days' notice required 
 by the rules. In such cases application may be made for an order 
 to show cause why leave to re-argue or appeal should not be 
 granted. This order may be made returnable in less than five 
 days but must be returnable upon the first day of the term. 
 The order should contain a provision requiring the Clerk to put 
 the motion on the Calendar for the coming Term; if for any 
 reason, an order to show cause cannot be obtained in time to 
 have the motion heard, at the first term after the decision is 
 made, a regular notice of motion should be made returnable 
 at the next succeeding term at which a five days^ notice can be 
 given, and upon showing in the moving papers that the de- 
 cision was handed down too late to enable the motion to be 
 made at the term immediately ensuing, the time of making the 
 decision, this Court will entertain the motion and not deny it 
 upon that ground. 
 
 Should the moving party then desire a stay pending the 
 hearing and determination of the motion, application should 
 be made for an order to show cause why a stay for such time 
 should not be granted, and a temporary stay in the meantime. 
 This order to show cause can be obtained at any time and cau 
 be made returnable upon two days' notice. It will not be 
 granted unless it is shown in the moving papers that a motion, 
 for leave to appeal or for re-argument has been made and served. 
 Applications for such an order may be made to a Supreme 
 Court Justice at any time. 
 
 Upon the return of the order to show cause and proof of 
 its service, the Court will then determine whether the stay shall 
 be granted, and if so, upon what terms, if any, and will make the 
 necessary order therein. 
 
 Section 3191 of the Code of Civil Procedure provides that 
 an appeal from a judgment or order of the City Court may be 
 
32 REARGUMENT — WHEN IT WILL BE GRANTED. 
 
 taken, provided "such appeal be allowed by order made at the 
 terra at which such an appeal was determined or at the next 
 term after judgment Is entered upon such determination." 
 
 This section seems to authorize an application for leave to 
 appeal, after the entry of the judgment upon an appeal to the 
 Appellate Term from the City Court, although made at a term 
 subsequent to the one at which such an "appeal was deter- 
 mined," Kule VII, however, makes no such provision and does 
 not contemplate any such delay and the better practice is not 
 to wait until after a judgment is entered before making an 
 application for such leave, although if application was not made 
 until after judgment was entered, the Appellate Term might en- 
 tertain the motion if made at the following term. 
 
 If motion for re-argument alone is made, printed briefs 
 must be handed up (Eule IV). If motion to appeal alone is 
 made typewritten briefs will be received by the Court. 
 
 The requirements of Eule VIII relative to filing proof of 
 service, note of issue, etc., must be followed. 
 
 (1) Beargument — ^When Will be Granted. 
 
 Where a judgment is affirmed on a theory different from 
 that on which it was recovered at the trial a re-argument will 
 le granted. Miller vs. King, 34 Supp., 425 ; s. c, 88 Hun, 181. 
 
 Where on appeal the judgment had been reversed because 
 of erroneous exclusion of evidence, a re-argument will be grant- 
 ed upon a showing by the respondent that similiar evidence to 
 that excluded was admitted upon the trial without objection, 
 and that the excluded evidence was merely cumulative. 
 
 The rule regarding re-argument is laid down in Mount vs. 
 Mitchell, 32 N. Y., 702, as follows: 
 
 "Motions for re-argument shall be on printed papers show- 
 ing clearly that some questions decisive of the case, and duly 
 submitted by counsel, has been overlooked by the Court or that 
 the decision is in direct conflict with an express statute or to a 
 eontrolling decision to which the attention of the Court was not 
 drawn through the negligence or inadvertence of counsel." Sea 
 Curley vs. TomlinsOn, 5 Daly, 283. 
 
REARGUMENT WHEN DENIED. 33 
 
 For a statement of the general rule as to what is required to 
 he shown to obtain a re-argument. (See Hand vs. Rogers, 16 
 Misc., 364; s. c, 38 Supp., 2.) 
 
 A motion for re-argument upon a ground not raised either 
 ot the trial or upon the appeal will not he granted. Walsh vs. 
 Brown, 6 Supp., 97 ; s. c, 24 St. Rep., 722 ; see also, Robinson 
 Con. Mining Co. vs. Craig, 4 St. Rep., 478. 
 
 Court cannot allow appellant to amend his case and then 
 hear a re-argument upon the amended case. Wright vs. Terry, 
 24 Hun, 228. 
 
 After the remittitur is filed in the Court below, and judg- 
 ment entered and paid, the General Term of the Court of Com- 
 mon Pleas has no jurisdiction to entertain a motion for re-argu- 
 ment of an appeal from the City Court. Bradley & Currier Co. 
 vs. Lally, 10 Misc., 366; s. c, 31 Supp., 120. 
 
 Where the ground for re-argument is that the statement of 
 facts in the papers on appeal is erroneous, if the errors tvill not 
 effect the appeal. Kessler vs. Levy, 12 Misc., 116; s. c, 33 
 Supp., 54. 
 
 Where the appealahility of an order has been disposed of in 
 the opinion of the Court helow, and the appellant has had an 
 opportunity to he heard thereon, if the appeal is dismissed on 
 that question, he is not entitled to re-argument. Uhler vs. Ryer 
 4 Supp., 834; s. c, 23 St. Rep., 630. 
 
 Where the papers fail to shoui that any decisive question 
 has heen overlooked, or that a controlling decision, or a statute 
 has not heen followed, see Eagle Tube Co. vs. Edward Barr, Co., 
 11 Supp., 712; s. c, 34 St. Rep., 315; Stearns vs. Hemmensi, 3 
 Supp., 16 ; Duncan vs. Root, 4 Supp., 613 ; s. c, 23 St. Rep., 58 ; 
 Mahon vs. Sewell, 7 Supp., 600; s. c, 27 St. Rep., 816; Hand vs. 
 Eogers, 16 Misc., 364 ; s. c, 38 Supp., 2. 
 
 Where the record shows that in the opinion there was no 
 misconception concerning the question presented. Goodman vs. 
 Cohen, 11 Supp., 65; s. c, 32 St. Rep., 675. 
 
34 EEARGUMENT WHEN DENIED — LEAVE TO APPEAL. 
 
 Where the facts have teen passed upon adversely to the 
 jilaintlff in a negligence suit, hy reason of contradictions and 
 admissions contained in testimony given at a former triaL 
 McPhillips vs. N. Y., N. H. & H. E. E. Co., 14 Supp., 928; s. c, 
 39 St. Eep., 50. 
 
 Where the purpose of the re-argument is to enable the re- 
 spondent to interpose the objection, that the judgment appealed 
 from had not been entered when the appeal was taken, where 
 had the objection been seasonably made the return could have 
 been amended in that respect on proper application. Gates vs. 
 Williams, 10 Misc., 403 ; s. c, 31 Supp., 146. 
 
 Where the ground for re-argument is that the questions con- 
 sidered on appeal were not raised in the Court beloia, where it 
 appears that such questions were discussed on appeal by coun- 
 sel, and no objection upon the argument wus made upon the 
 ground urged for re-argument. Oliver vs. French, 84 Hun, 607; 
 s. c, 32 Supp., 576. 
 
 The fact that the Appellate Court did not, in its opinion, 
 detail the evidence and circumstances, shounng the process bif 
 which it reaches conclusions, is not ground for re-argument. 
 Edgerley vs. Long Island E. R. Co., 46 A. D., 284; s. c, 61 Supp., 
 677. See s. c, 44 A. D., 476; s. c, 60 Supp., 1062. See also, 
 Terry vs. Wait, 56 N. Y., 91-94. 
 
 IJeaTe to Appeal — To Whom Made. 
 
 In Curtin vs. Met. St. R'way Co., 22 Misc., 586; s. c, 49 
 Supp., 688, it was held that application for leave to appeal to 
 the Appellate Division was properly made to the Justices of the 
 Appellate Term in January, 1898, then sitting, although the 
 argument was heard and decision rendered upon the appeal by 
 different Justices who held the term in December, 1897, and that 
 a decision made by the Justices sitting in January, 1898, deny- 
 ing the motion was made by the proper Justices. This decision,, 
 however, was overruled in Jaeger vs. Koenig, 67 A. D., 552; 
 s, c, 73 Supp., 907, and in Harrison vs. Weir, 68 A, D., 25 ; s. c. 
 
LEAVE TO APPEAL AND STIPULATION THEREON. 35 
 
 73 Supp., 119, and such application must be heard and deter- 
 mined by the Justices of the Appellate Term who passed upon 
 the appeal. 
 
 The practice is to make the application at the "next suc- 
 ceeding term," and the Justices who are then sitting refer the 
 decision of the motion to the Justices who heard and decided the 
 appeal. Although not required to be done, this is the disposi- 
 tion made of motions for re-argument as the reasons laid down 
 in Jaeger vs. Koenig, (supra), apply to motions for re-argu- 
 ment with equal force as to those for leave to appeal. Although 
 the rules do not require it, the practice is to make an affidavit, 
 setting forth in full the reasons why a. re-argument or leave to 
 appeal is asked and a copy of such affidavit is served with the 
 notice of motion — 5 days' notice of motion must be given and a 
 note of issue filed. See also, Rule VIII. 
 
 Leave to appeal — when will &e granted. — Such leave will be 
 granted only (1), where the determination involves great in- 
 terests or settle a principle of law affecting numerous cases ; ( 2 ) , 
 where the decision is in conflict with one previously rendered 
 by the Appellate Term; (3), where the questions of law in- 
 volve an important public statute or the principles involved are 
 of importance to others than the party litigating. Lynch vs. 
 Sauer, 16 Misc., 362 ; s. c, 38 Supp., 1. See also, Davis vs. Bonn, 
 16 Misc., 365 ; s. c, 38 Supp., 30. 
 
 Stipulation as a condition of permission to Appeal. 
 
 Eule 8 requires that the party who desires leave to appeal to 
 the Appellate Division from a determination ordering a new 
 trial, must file a stipulation with his application for such leave 
 and serve a copy thereof which shall be essentially in the follow- 
 ing form: 
 
 The plaintiff (or defendant) hereby stipulates that if permission be 
 granted to him by the Court to appeal to the Appellate Division, from 
 the determination made herein on the day , and 
 
 such determination shall be affirmed by said Appellate Division or the 
 appeal dismissed, that judgment absolute may be rendered against him. 
 
36 MOTION FOE RESTITUTION — JURISDICTION TO ENTERTAIN. 
 Subdiv. 5— Motions for Restitution. 
 (1) Jurisdiction to Entertain. 
 
 Motions for restitution are permitted under the follow- 
 ing sections of the Code of Civil Procedure: Section 1005, 
 when a new trial is granted ; Section 1529 in action relating to 
 real property; Section 1616 in action for dower; Section 2142 on 
 certiorari proceedings; Section 2263 in summary proceedings; 
 Section 1323 after reversal or modification of judgment upon 
 appeals ; and under Section 323, Municipal Court Act, after re- 
 versal of judgment or final order upon appeal. Section 35 of the 
 Mun. Ct. Act has no application to this Court. 
 , Of these Sections 1323 and 2263 of the Code of Civil Pro- 
 cedure, and Section 323 of the Municipal Court Act, only are 
 necessary to be considered herein. Said sections read as fol- 
 lows : 
 
 § 1323. [Am'd, 1877, 1880, 1899.] Eestitution; when 
 awarded. 
 
 When a final judgment or order is reversed or modified, upon appeal, 
 the appellate court, or the general term of the same court, as the case 
 may be, may make or compel restitution of property, or of a right, lost by 
 means of the erroneous judgment or order; but not so as to affect the 
 title of a purchaser in good faith and for value. When property has been 
 sold, the court may compel the value, or the purchase price, to be re- 
 stored, or deposited to abide the event of the action, as justice reciuires. 
 When the appeal is from a judgment in favor of the owner of real estate. 
 In an action to set aside a conveyance thereof, or in an action to compel 
 the specific performance of a contract for the sale thereof, such owner 
 shall have the same right to sell or dispose of the same as though no 
 appeal had been taken; unless the appellant shall file with the clerk of 
 the court a written undertaking, in a sum fixed by the court, or a judge 
 thereof, upon a notice to the respondent of at least ten days, and to be 
 approved by such court or judge, to the effect that the appellant will, in 
 case the judgment appealed from shall be affirmed, pay to such owner 
 such damages as he may suffer by reason of such appeal, not exceeding 
 the amount of the penalty in such undertaking. Such undertaking may 
 be filed at any time during the appeal, but any sale of such real estate 
 or contract to sell the same in good faith aiftl for a valuable consideration, 
 after said judgment and before the filing of such undertaking, shall be 
 as valid as if such undertaking had not been filed. In case such under- 
 taking shall not be filed, ■ the respondent shall be entitled, at any time 
 during such appeal, to an order discharging of record any notice of 
 pendency of action filed in the action, and, in an action to compel the 
 specific performance of a contract for the sale of real estate, also cancel- 
 ing and discharging of record said contract, in case the same has been 
 recorded. 
 
EESTITUTION — MOTION FOR AND JURISDICTION TO ENTERTAIN. 37 
 
 §2263, Appellate court may award restitution; action for 
 damages. 
 
 If the final order Is reversed upon the appeal, the appellate court may 
 award restitution to the party injured, with costs; and it may make any 
 order, or issue any other mandate, necessary to carry its determination 
 into effect. The person dispossessed may also maintain an action, to 
 recover the damages which he has sustained by the dispossession. 
 
 §323, Mun. Ct. Act. Eestitution upon reversal. 
 
 Where the judgment or final order is reversed or modified, the appel- 
 late court may make or compel restitution of property or of a right, lost 
 by means of the erroneous judgment; but not so as to affect the title of a 
 purchaser, in good faith and for value, or property sold by virtue of a 
 warrant of attachment in the action, or an execution issued upon the judg- 
 ment. In that case, the appellate court may compel the value, or the pur- 
 chase price to be restored, or deposited to abide the event of the action, 
 as justice requires. Six days' notice of an application for an order for 
 restitution must be given; and, if the application is granted before judg- 
 ment, the proper direction may be included therein. 
 
 The remedies provided by the Code are not exclusive, and 
 a parti/ may proceed hy action. Haebler vs. Myers, 132 N. Y., 
 363 ; s. c, 44 St. Rep., 403. 
 
 The power to order restitution is discretionary. Parker vs. 
 Lythgoe, 14 Supp., 528; s. c, 38 St. Rep., 887; and its decision is 
 final. Merriam vs. The Wood & Parker Lithographing Co., 155 
 N. Y., 136 ; The Market Nat. Bank of N. Y. vs. The Pacific Nat. 
 Bank, 102 N. Y., 464 ; s. c, 2 St. Rep., 59 ; Kidd vs. Curry, 29 
 Hun, 215; order held appealable, in Pittsfield Nat. Bank vs. 
 Bayne, 140 N. Y., 321; s. c, 55 St. Rep., 738. 
 
 By Section 3190 of the Code of Civil Procedure, Section 1323 
 is made applicable to cases of appeals, from the City Court. 
 
 Section 2263 of the Code of Civil Procedure and Section 323 
 of the Municipal Court Act, confer the power upon the "Appel- 
 late Court" to order restitution, and therefore, motions for that 
 purpose may be made under either of these sections in the Ap- 
 pellate Term. 
 
 The notice of motion in these cases must be made returnable 
 upon the first day of the term, a note of issue must be filed, 
 under Rule 8, page 11 ante, and service of such notice of mo- 
 tion must be made at least siso days prior to the first day of the 
 
38 RESTITUTION — MOTION FOE AND JURISDICTION TO ENTERTAIN. 
 
 term. In this respect the motion differs from other motions 
 made in Appellate Term. 
 
 Where the judgment of the Appellate Court is given for de- 
 fendant absolutely and -finally, and no new trial is ordered, it 
 is imperative upon the Court to order restitution of all the ap- 
 pellant has lost. Estus vs. Baldwin, 9 How. Pr., 80; Frost vs. 
 Frost, 16 Misc., 430; s. c, 39 Supp., 856. 
 
 For the practice in such motions see Cushing vs. Vanderbilt, 
 7 Daly, 512; Marvin vs. Brewster Mining Co., 56 N. Y., 671. 
 
 In the exercise of discretionary power, under Section 1323 
 of the Code of Civil Procedure, the Court will order restitution 
 of money paid on a judgment, which has been reversed on ap- 
 peal, where it appears that the judgment on api)eal is in effect 
 a final determination of the issues, though the money originally 
 belonged to the party who obtained judgment in the trial court. 
 Hayes vs. Nourse, 7 Supp., 656; s. c, 15 Daly, 364. See also, 
 Klinker vs. Third Ave. R. R. Co., 33 A. D., 556; s. c, 53 Supp., 
 1012. 
 
 Section 1323 contains the provision that the Appellate 
 Court, "or- the general term of the same court," may award 
 restitution, etc. It was held in Carlson vs. Winterson, 146 N. 
 Y., 345; s. c, 66 St. Eep., 649, reversing 11 Misc., 267; s. 
 c, 32 Supp., 251, that a motion for restitution might 
 properly be made at the General Term of the City Court, 
 in a case where a judgment of the trial term of the City Court 
 had been afllrmed by the General Term of that Court, but sub- 
 sequently reversed by the General Term of the Court of Com- 
 mon Pleas ; as the General Term of the City Court is no longer 
 in existence, the only court to which such application can now 
 be made is the Appellate Term. 
 
 A direction for the restitution of moneys paid upon a judg- 
 ment, which has been set aside upon motion or reversal upon 
 appeal, as authorized by Code of Civil Procedure (1292 and 
 1323), is in effect a judgment "for a sum of money" (Section 
 1240), and is enforceable by execution. 
 
 An order punishing a party for a contempt in not complying 
 
KESTITUTION — MOTION FOK AND JURISDICTION TO ENTERTAIN. 3^ 
 
 with such a direction, is unauthorised. O'Gara vs. Kearney, 77 
 IN. Y., 423 ; s. c, 57 How. Pr., 439. 
 
 Cannot be enforced hy contempt proceedings. Forstman vs. 
 Schulting, 42 Hun, 634; s. c, 4 St. Eep., 463, affirmed, 108 N. 
 Y., 110 ; s. c, 13 St. Rep., 483. O'Gara vs. Kearney, 77 N. Y., 
 423 ; s. c., 57 How. Pr., 439. 
 
 Under the Section (1323) the Court cannot restore property 
 talcen and sold unaer another judgment. Murray vs. Berdell, 
 S8 N. Y., 480. 
 
 Money paid pending appeal, restitution thereof cannot he 
 compelled. Klinker vs. Third Ave. E. R. Co., 33 A. D., 556 ; s. c, 
 53 Supp., 1012. Nor where interest of third parties have inter- 
 vened, id. 
 
 Should not he ordered when identity of property is in dis- 
 pute. Shapiro vs. Goldberg, 31 Misc., 787 ; s. c, 65 Supp., 312. 
 Remedy is hy action (id.). 
 
 Rents and profits, accounting for upon restitution. See Holly 
 vs. Gibbons, 177 N. Y., 401; Wallace vs. Berdell, 101 N. Y., 13. 
 
 Under Section 2263, if the tenant desires restitution, and a 
 -motion he made therefor upon a reversal of a final order 
 giving possession to the landlord for a defect in the petition, 
 restitution should he directed. Bristed vs. Harrell, 21 Misc., 
 93;s. c, 46Supp., 966. 
 
 Damages. — The right to recover damages is not only for in- 
 juries actually done to the tenants' goods in their removal, but 
 he is entitled to recover for the use of the premises from the time 
 he was dispossessed to the time that restitution was ordered, 
 and also for the value of the crops upon the land, which has 
 been gathered during the period. Woods vs. Kernan, 57 Hun, 
 215; s. c, 10 Supp., 654. 
 
 An under tenant may recover damages upon reversal of a 
 judgment in favor of the landlord. Eten vs. Luyster, 60 N. Y., 
 252. 
 
40 EESTITUTION — WHEN GRANTED OR REFUSED. 
 
 Section 323 of th«; Mun. Ct. Act — See Page 37 Ante. 
 
 This section provides that where the judgment in an action 
 or final order in a special proceeding is reversed or modified, 
 the Appellate Court may order restitution of property within 
 the limitations therein prescribed. The rights of a purchaser 
 in good faith and for value, or the holder of property, sold under 
 a warrant of attachment, or under an execution, may not be dis- 
 turbed in his peaceable possession, but the Appellate Term may 
 order the value, or the purchase price, to be deposited and ap- 
 plied under its direction. 
 
 A motion for restitution must shOAV clearly that the cir- 
 cumstances of the case are siuch that restitution is proper, from 
 the fact that payment or satisfaction of the judgment after- 
 wards reversed has been made, and should be supported by af- 
 fidavits to that effect. Encyc. of Pleading & Practice, Vol. 18, 
 page 888. 
 
 (2) Restitution — When it will be Granted. 
 
 Reversal of final order. — Woods vs. Kernan, 10 Supp., 654; 
 s. c, 19 Civ. Pro. Rep., 180; People vs. Matthews, 38 N. Y., 451, 
 affd., 43. Barb., 168. 
 
 Despite provision for forfeiture of term contained in lease. 
 — in event of default in payment of rent. Wolcott vs. Schnek, 
 16 How., 449. 
 
 Reversal of final order for lack of jurisdiction. — Bristed vs. 
 Harrell, 21 Misc., 93 ; s. c, 46 Supp., 966. 
 
 (3) When Restitution Should not be Granted. 
 
 When judgment does not finally decide tlie rights, of the 
 party. Gushing vs. Vanderbilt, 7 Daly, 512. 
 
 Where costs are paid to perfect the appeal^ the successful 
 party may not have an order of restitution to get back the costs 
 deposited with the Clerk of the Municipal Court, which by 
 statute must be paid to perfect the appeal. Sherwood vs. 
 Travelers Insurance Co., 12 Daly, 137, at 139 ; s. c, 65 How. Pr., 
 
RESTITUTION WHEN REFUSED — RECESS MOTIONS — WHAT ARE. 41 
 
 193; Bradley Salt Co. vs. Meinhold, 23 Misc., 468; s. c, 52 
 Supp., 679 ; Kenney vs. Livery Stable Keepers.' Association, 89 
 Hun, 190, at page 192; s. c, 35 Supp. 8. 
 
 When a judgment is reversed on question of law and the 
 merits not considered. Carlson vs. Winterson, 7 Misc., 15; s. 
 c, 27 Supp., 368; s. c, 7 Misc., 689; s. c, 28 Supp., 20. 
 
 Term expiring before judgment of reversal rendered. — 
 Chretien vs. Doney, 1 N. Y., 419. 
 
 Where success of landlord in new trial apparent. — People 
 ex rel. Murphy vs. Lockwood, 3 Hun, 304; s. c, 5 Thomp. & C, 
 526; People vs. Hamilton, 15 Abb. Pr., 328, Affirmed, 39 N. Y., 
 107. 
 
 When new trial has been ordered. — May aicait final deter- 
 mination. — Moench vs. Young, 9 Supp., 637; s. c, 18 Civ. Pro.^ 
 259. 
 
 Where tenant has only reversionary interest. — Marsh VS. 
 Masterson, 3 Supp., 414; s. c, 15 Daly, 114. 
 
 Where new tenant in possession under lease. — Carter vs. 
 Anderson, 16 Daly, 437; s. c, 11 Supp., 883. 
 
 Sec. 4 — Recess Motions — Moving Papers Upon — ^How Motion Made. 
 
 The Appellate Court is always open for the hearing of mo- 
 tions, and there are several of which no special mention is made 
 in the Code of Civil Procedure, or the Rules of Practice, but 
 which are frequently made in this Court. 
 
 They include motions: 
 
 (a) To extend the time in which to comply with the terms of 
 an order; 
 
 ( & ) To open a default in failing to comply with the terms of 
 an order; 
 
 (c) To perfect an appeal from the City or Municipal Court; 
 
 {d) To procure the return of the case upon appeal, from a 
 City Court judgment to the lower Court for the purpose of re- 
 settlement; 
 
42 MOTION TO EXTEND TIME TO COMPLY WITH TEKMS IMPOSED. 
 
 (e) To procure the return of the papers upon an appeal 
 from an order of the City Court, to that Court for amendment; 
 
 (jf) To procure a further and amended return from the Mu- 
 nicipal Court; 
 
 (g) For a stay of proceedings (1), upon an appeal from a 
 judgment or order of the City Court to the Appellate Term; (2), 
 upon an appeal from an order or judgment of the Municipal 
 Court to the Appellate Term; (3), upon an appeal from the de- 
 termination of the Appellate Term to the Appellate Division. 
 
 It must not be understood that the motions above enumer- 
 ated cannot be made upon the first day of the term, but they 
 are to be distinguished from the fl'rst class of motions herein- 
 before referred to in this, that while the first class of motions 
 can only be made upon the first day of the term, this class can 
 be made at any time during the term, as well as upon the first 
 day thereof. We shall treat of these motions in the order 
 named. 
 
 Subdiv. A — To Extenfl the Time to Comply with the Terms or Conditions 
 
 Imposed by an Order. 
 
 It frequently happens that upon a motion made in the Ap- 
 pellate Term, to dismiss an appeal for failure to print and 
 serve a case or papers upon appeal from the City Court after 
 settlement of the case in that Court or to procure a return from 
 the Municipal Court to be filed, the Court directs that the ap- 
 peal be dismissed, unless the appellant cause the case or pa- 
 pers or return, as the case may be, to be served and filed within 
 a specified time. If the appellant is unable to comply with the 
 terms of such an order, application should be made for an ex- 
 tension of time. This is an important thing to do, as by the 
 terms of such an order, upon failure to comply therewith, it 
 immediately becomes operative, and the appeal standsi dis- 
 missed, needing only the entry of an ex parte order to enable 
 the respondent to carry it into effect. The application for such 
 extension of time can be made ea? parte and unless it should 
 
MOTION TO BE RELIEVED FROM DEFAULT OR NEGLECT. 43 
 
 appear that the granting of the same Avould injure the re- 
 spondent, it would be granted. If there exists any doubt about 
 the right of the appellant to the relief sought, an order to show 
 cause would be granted, upon the return of which both sides 
 could be heard. 
 
 Subdiv. B — ^Motion to Open a Default or Relieve from Neglect. 
 
 In a case where the time in which a party is given to do an 
 act, has expired, his default may be opened upon proper applica- 
 tion, and by excusing his default. When in thisi situation the 
 party in default should obtain an order to show cause, why his 
 default should not be opened and he be allowed to have his time, 
 in which to comply with the order extended. 
 
 Care must be taken by the practitioner to distinguish be- 
 tween an application made hefore the expiration of the time 
 fixed in an order for the performance of an act, and one made 
 ufter such time has expired. 
 
 In the former case the application should be for an extension 
 of time, and in the latter case his motion must be to open such 
 default, as he has no standing in Court until such default is 
 opened; opening of the default and permission to perform the 
 act may be granted at the same time and obtained by the same 
 motion. Default in failing to serve a case upon appeal must be 
 relieved by application to the Court, from which such appeal is 
 taken. Odell vs. McGrath, 16 A. D., 103 ; s. c, 45 Supp., 119 ; 
 this does not apply to appeals to the Appellate Term (see 
 Rule III). After the case has been settled in the City Coiirt, 
 application for an extension of time in which to serve it should 
 l)e made to the Appellate Term. McCarthy vs. Met. St. E. Co., 
 48 Misc., 633; s. c, 96 Supp., 139. 
 
 Subdiv. C — To Perfect an Appeal where Notice of Appeal has not Been 
 Served on All Necessary Persons. 
 
 It is provided by Section 3190 of the Code of Civil Pro- 
 cedure, that, excepting in certain respects not necessary to refer 
 
44 MOTION TO PERFECT APPEAL — CORRECTING RETURN. 
 
 to here, that Titles 1st, 3rd and 4th, of Chapter 12 of the Code of 
 Civil Procedure, shall apply to and govern an appeal author- 
 ized by Sections 3188 and 3189, wMch sections provide for an 
 appeal to the Supreme Court from a judgment or order of the 
 City Court. (Quigg vs. International Shirt & Collar Co., 16 
 Misc., 39; s. c, 37 Supp., 916.) 
 
 By Section 1303 Code of Civil Procedure it is provided that 
 where the appellant seasonably and in good faith serves the 
 notice of appeal upon the Clerk or upon the adverse party or his 
 attorney ( but omits, through mistake, inadvertence or excusable 
 neglect to serve on the other, the Court in or to which the ap- 
 peal is taken, upon proof, by affidavit of the facts, may in its 
 discretion permit the omission to be supplied or an amendment 
 to be made, upon such terms as justice requires. 
 
 To the same effect is Section 313 of the Mun. Ct. Act, except 
 that the application for relief must be made to the "Appellate 
 Court." 
 
 In a case in which the appellant may desire to invoke the 
 provisions of either of these sections, the application can be to 
 the Appellate Term, during recess, or the application may be 
 made to the City Court for relief, where the appeal is taken from 
 that Court. ( For cases where relief has been granted or denied, 
 see Chap. XII, p. 120, post.) 
 
 Subdiv. D — To Remit Returns to Lower Court for Correction. 
 
 Upon appeals from a judgment of the City Court after a ease 
 is made and settled and filed with the Clerk of the Appellate 
 Term, a motion may be made and granted in a proper case to 
 have the case on appeal returned to the lower Court, for the 
 purpose of enabling a party to move in that Court, to have the 
 case amended or corrected. 
 
 Subdiv. E — To Remit Papers on Appeal from Order of the City Court for 
 
 Correction. 
 
 Upon appeal from an order of the City Court no case is 
 made, but the appeal book consists of the papers used upon the 
 motion and recited in the order. 
 
REMITTING PAPERS TO CITY COURT FOR CORRECTION. 45 
 
 Eule 3 of the General Eules of Practice provides that the 
 order shall recite the papers that were used on the motion. 
 
 The Appellate Court can only consider the papers recited 
 in the order as having been used on the motion. Farmers' Nat'l 
 Bank vs. Underwood, 12 A. D., 269 ; s. c, 42 Supp., 500. Papers 
 will not be considered unless recited in the order. Wells, Fargo 
 & Co., vs. W. C. & P. C. E. E. Co., 12 A. D., 47; s. c, 42 Supp., 
 225. Silo vs. Linde, 31 Misc., 264 ; s. c, 64 Supp., 55. 
 
 If the respondent should, upon examination of the printed 
 papers upon an appeal from an order of the City Court, ascer- 
 tain after service upon him of the printed copies that they 
 do not contain all the papers used upon the motion, although 
 recited in the order, he should promptly move for an order re- 
 turning the papers to the lower court for correction ; if the mo- 
 tion is granted, a motion should then be made in the City Court 
 for an order correcting the printed papers, by inserting therein 
 the omitted papers. 
 
 If an order appealed from fails to recite all the papers that 
 were used on the hearing in the City Court, a motion should be 
 made for a resettlement of the order. Smith vs. Smith, 43 Super. 
 Ct., 140. If such an order is granted, the order as resettled 
 takes the place of the original order ( Matter of Peekamose Fish- 
 ing Club, 5 A. D., 283; s. c, 39 Supp., 124), and a motion should 
 be made in the Appellate Term, if the papers upon appeal have 
 been filed there, for an order returning the papers so filed to the 
 City Court, for the purpose of having the re-settled order in- 
 corporated therein. (Koeppel vs. Koeppel, 95 Supp., 812.) 
 
 In re-settling a case, the Trial Judge cannot be required to 
 act in any way contrary to his own recollection of what actually 
 occurred upon the trial. Zimmer vs. Met. St. Ey. Co., 28 A. D., 
 504;s. c, 51Supp., 247. 
 
 Subdiv. F — To Procure Amended Return from Municipal Court. 
 
 Section 318 of the Municipal Court Act provides for the 
 settlement of a case by the Justice who tried the case, before the 
 return upon appeal from that Court is made; this undoubtedly 
 
46 PROCURING AMENDED RETURN FROM MUNICIPAL COURT. 
 
 saves many applications to the Appellate Term for a further 
 or amended return. 
 
 When the return upon appeal is filed in the Appellate Term, 
 it is the duty of both the appellant and the respondent to 
 promptly examine it for the purpose ascertaining whether it 
 is defective in any respect. 
 
 The return is conclusive and must control upon appeal. 
 Eisenbud vs. Gellert, 26 Misc., 367; s. c, 55 Supp., 952. 
 
 The appellant is bound ty the recitals in the record. Man- 
 ing vs. Ferrier, 27 Misc., 522; s. c, 58 Supp., 332; Smith vs. 
 Johnson, 30 How. Pr., 374. 
 
 The return must contain the exhibits relied upon as a basis 
 for the cause of action. U. S. Title Guarantee & Indemnity 
 iCo. vs. Royal, 87 Supp., 457. 
 
 Judge's certificate of time of rendering judgment is con- 
 clusive. Benson vs. Gutterman, 33 Misc., 753; s. c, 67 Supp., 
 89. 
 
 When there is an error in the Clerk's return, the Record will 
 prevail. Maggio vs. Ocean View Cemetery, 94 Supp., 595. 
 
 There is no provision in the Municipal Court Act for the 
 procuring a further or amended return. Section 20 of that 
 Act, however, provides that the provisions of the Code of Civil 
 Procedure shall apply to the Municipal Court as far as the same 
 can be made applicable and are not in conflict therewith. Sec- 
 tion 3055 of the Code of Civil Procedure reads as follows : 
 
 "If the return is defective, the appellate court may direct the justice 
 to make a further or amended return, as often as is necessary. The appel- 
 late court may compel the justice, by attachment, to make and file a 
 return, or a further or amended return. The court is always open for 
 those purposes. Where the justice has removed to another county of the 
 State, the appellate court may compel him to make the return, as if he 
 was still within the county where the judgment was rendered." 
 
 As to practice in compelling justice to make return by at- 
 tachment, see Chap. V, page 28 ante. The motion should be 
 made promptly. 
 
 The return can only be amended by motion made therefor, 
 and not by way of affidavits handed up on appeal. Daly vs. 
 Minke, 86 Supp., 92. Affidavits to contradict return of justice 
 
AMENDED EETUKN — MOTION FOE STAY PENDING APPEAL. 47 
 
 will not he considered on appeal. Long Branch Pier Co. vs. 
 Crossley, 40 Misc., 249, at page 251 ; s. c, 81 Supp., 905. Mo- 
 tion must he made upon affidavits. Lynsky vs. Pendegrast, 2 
 E. D. Smith, 43, and it should he m,ade hefore the appeal has 
 heen noticed for argument. 
 
 The error or omission in the return must he clearly shown. 
 Smith vs. Johnston, 30 How. Pr., 374. 
 
 The Court can, of its own motion, order a return sent hack 
 for correction. Baldwin vs. Thibandean, 14 Supp., 788 ; s. c, 39 
 St. Eep., 54. 
 
 The justice is liable for a false return, and for any damages 
 which may he sustained; he acts ministerially. MacDonell vs. 
 Buffum, 31 How. Pr., 154. 
 
 The order will not direct the Justice to return that such 
 a thing is true, or otherwise, hut merely order him to supply 
 defects hy stating whether the matter to which he is legally 
 called upon to return and to which he has omitted to answer 
 he true or false. Palmer vs. Peck, 2 Cowen, 461. 
 
 Subdiv. G — Stay of Proceedings Pending the Appeal. 
 
 (1) Stojj of proceedings upon an appeal from judgment or 
 order of City Court. 
 
 Section 3188 of the Code of Civil Procedure provides for 
 an appeal to the Supreme Court from a final or interlocutory 
 judgment rendered in the City Court, in a case where an ap- 
 peal may be taken to the Appellate Division of the Supreme 
 Court, as prescribed in Sectionsi 1346 and 1349. 
 
 Section 3189 provides for an appeal "to the Supreme Court" 
 from an interlocutory judgment rendered or an order made at 
 Chambers, or at a Special Term, or a Trial Term of the City 
 Court, or from an order made by a judge thereof, out of 
 court, in a case where an appeal ma.y be taken to the Appellate 
 Division of the Supreme Court, from similar judgments or 
 orders as prescribed in Sections 1347, 1348 and 1349 of the 
 Code of Civil Procedure. 
 
 Section 3190 provides that, except as to the time in which 
 
48 MOTION FOE STAY PENDING APPEAL. 
 
 such appeal may be taken, that Title 1, 3 and 4 of Chapter 12 
 of the Code of Civil Procedure shall govern the appeals so taken ; 
 referring to Title 3 of Chap. 12, entitled, "Appeals to the Su- 
 preme Court from an Inferior Court," we find in Section 1343, 
 that upon an appeal thus taken, "The Appellate Court or a 
 Justice thereof, may direct a stay upon such terms as to security 
 or otherwise, as justice may require. This section applies to 
 appeals from orders of the City Court only, as upon appeals 
 from judgments of the City Court (Section 1341) to stay the 
 execution of the judgment security is required, although such 
 security is not necessary to perfect the appeal. (Quigg vs. Inter- 
 national Shirt & Collar Co., 16 Misc., 39; s. c, 37 Supp., 916.) 
 The "Appellate Court" referred to in the Section is 
 the Supreme Court, and therefore if a stay is desired, a motion 
 for that purpose should be made in Part I, Special Term, or an 
 order to show cause obtained in Part II, Special Term, return- 
 able in Part I. A note of issue must be filed in Part I and the 
 motion heard therein. Any Justice of the Supreme Court, how- 
 ever, may grant such a stay, but this is seldom done. 
 
 Application for a stay must 1)6 made to the Court in irhich 
 the appeal is pending, and not to the Court from which the ap- 
 peal is taken. Van Orden vs. Van Orden, 27 A. D., 136 ; s. c, 50 
 Supp., 184. 
 
 When party is not stayed for non-payment of costs of pre- 
 vious order imposing costs. Allen vs. Becket, 84 Supp., 1011; 
 !S. c, 85 Supp., 192. 
 
 (2) Stay upon an appeal from judgment or order of the 
 Municipal Court. 
 
 Upon an appeal from a judgment of the Municipal Court, a 
 stay pending an appeal can only be had by giving the under- 
 taking required by Section 314 of the Municipal Court Act. 
 
 The undertaking should be given, and a copy thereof served, 
 witlT notice of delivery, at the time of the service of the notice of 
 appeal (Section 314 of the Mun. Ct. Act), although it has been 
 held that the direction contained in that section is not man- 
 
STAY ON APPEAL FROM MUNICIPAL COURT. 49 
 
 datory, and that an undertaking may be filed after the notice of 
 appeal is served. Hyman v. Segal, 44 Misc., 226; s. c, 88 
 Supp., 1036. 
 
 Stay upon appeal from an order of the Mun. Ct. Upon 
 an appeal from an order of the Municipal Cburt, the Ap- 
 pellate Term has power to grant a stay ( Amorisia vs. Eando, 88 
 Supp., 356) ; the appeal does not of itself operate as a stay (id.). 
 Nor can such a stay be obtained by giving an undertaking under 
 Sec. 314, Mun. Act; it must be under Sec. 1343, C. C. P. (Cos- 
 tello vs. 42d St. Ey. Co., Law Journal, April 13, 1906, Special 
 Term, Part I). 
 
 (3) Stay upon an appeal from the Appellate Term to the 
 Appellate Division. 
 
 Section 3191 of the Code of Civil Procedure pro- 
 vides that an appeal to the Appellate Division of the Supreme 
 Court of the First Department, may be taken from the determ- 
 ination of an appeal taken as prescribed in Sections 3188 and 
 3189, provided such appeal be allowed by order made at the 
 term at which such appeal was determined, or at the term next 
 after judgment is entered, and provided further that where such 
 appeal is from an order granting a new trial upon a case and 
 exceptions, the appellant must, with his application for leave 
 to appeal, file an assent on his part, that if the order is affirmed 
 judgment absolute may be rendered against him. This provision 
 is also contained in Eule 8 attte and applies to Municipal 
 Courts. This last provision is a pre-requisite to the granting 
 of leave to appeal, and must be observed or leave will be refused. 
 
 This section must be read in connection with Section 1344 
 of the Code of Civil Procedure (quoted in full in Chap. I, page 
 4 ante), and it must be noted that power to grant the per- 
 mission to appeal from the Appellate Term is also given by 
 Section 1344 to a justice of the Appellate Division. See Chap. 
 XV, page 119, post. 
 
 The sections referred to provide for the taking of an appeal, 
 when allowed, from the Appellate Term to the Appellate Di- 
 vision. 
 
 4 
 
50 STAY — rRACTICE UPON RECESS MOTIONS. 
 
 Section 3192 of the Code of Civil Procedure provides that, 
 so far as applicable, the provisions of Titles 1, 3 and 4 of Chap- 
 ter 12 of the Code of Civil Procedure, apply to and govern an 
 appeal taken as prescribed in the preceding Section (3191). 
 
 Eeferring to Title i, of Chap. 12, entitled "Appeal to the 
 Appellate Division of the Supreme Court" we find that Section 
 1351 of the Code of Civil Procedure declares that security is not 
 required to perfect the appeal, that the appeal does not stay the- 
 execution of the judgment or order appealed from "unless the 
 court in or from which the appeal is taken or a judge thereof 
 makes an order directing a stay." 
 
 It follows then that upon an appeal from the Appellate Term 
 to the Appellate Division, either the Supreme Court or a Justice 
 thereof, or the Appellate Division or a Justice thereof, can grant 
 H stay. 
 
 The practice in the Appellate Term regarding the granting- 
 or refusal of stays, so far as regards appeals from that Court 
 to the Appellate Division, is, that if the Appellate Term has 
 granted leave to appeal to the Appellate Division, a stay pend- 
 ing the appeal will be granted; if leave to appeal has been re- 
 fused, a stay will not be granted pending an application under 
 Eule X, page 120 post, to the Appellate Division for leave to 
 appeal. Such an application should be made to the Appellate 
 Division or a Justice thereof. 
 
 Notice of Motion or Order to Sliow Cause Upon Recess Motions. 
 
 In all of the class of cases from "a" to "g" inclusive, if ap- 
 plication is to be made to the Appellate Term for relief by notice 
 of motion, it must be made upon a notice of five days. The 
 usual practice is to apply for an order to show cause. This is; 
 done by setting forth in an affidavit the facts in each case, stat- 
 ing the present status of the action, the reasons for seeking the 
 relief asked for, and why the same should be granted. This affi- 
 davit should be accompanied by an order to show cause, which 
 should contain a space to be filled with the time when the order 
 is to be made returnable, and a space to be filled with the 
 
MOTIONS — CALENDAR AND FILING MOTION PAPEES. 51 
 
 time in which it must be served. The order should be made 
 returnable before "the Appellate Term of the Supreme Court, 
 at the Justices Chambers, County Court House, Borough of 
 Manhattan." And it may also contain a stay pending the hear- 
 ing and. determination of the motion which will be granted in a 
 proper case. 
 
 While it is within the power of any Supreme Court Justice 
 to grant an order to show cause of this kind, in matters per- 
 taining to the Appellate Term, it is not customary for any 
 Justice, but the presiding Justice of the Appellate Term, to 
 grant such an order, unless for some reason application cannot 
 be made to him. If for any cause application cannot be made to 
 the presiding Justice, then it should be made to one of the 
 Justices sitting with the presiding Justice at the time in the Ap- 
 pellate Term. 
 
 Sec. 5 — Calendar, Practice and Filing of Motion Papers. 
 
 It must be further noted in regard to all motions that, 
 
 1. The motion calendar prepared under Eule VIII, page 
 12 ante, Avill not be called. ( Rule 8, page 11 ante. ) 
 
 2. That no oral argument will be heard. Rule 8, page 11 ante. 
 
 3. If any motion upon the motion calendar affects a cause 
 upon the calendar, the attention of the Clerk having charge of 
 the motion calendar, should be called to this fact, see 
 page 12 ante; this should be done by endorsement upon the 
 motion papers when handed up, the object of this being to en- 
 able the Clerk to call the attention of the Court to such motion, 
 that it may be decided in time to determine the effect of the 
 decision upon the case on the call calendar. 
 
 4. All papers upon which the motion is based, proof of ser- 
 vice, etc., and all answering affidavits, must be filed with the 
 Clerk of the Appellate Term on or before noon of the first day 
 of the term, Rule 8, page 11 ante. This rule applies to mo- 
 tions upon the motion calendar only. 
 
CHAPTER VI. 
 
 ARGUMENTS UPON APPEAL— BRIEFS. 
 
 Sec. 1 — Notice of Argument — how Sec. 3 — Briefs — (a) City Court 
 
 served and filed. Briefs, (b) Municipal Court 
 
 Sec. 2 — Briefs — service and filing Briefs. 
 of. 
 
 Sec. 1 — Notice of Argument — How Served and Filed. 
 
 Upon appeals in this Court, three important rules must be 
 observed, after the case is placed upon the calender : 
 
 First. Eight (8) days' notice of argument must 
 be served. (Sec. 325, Muni. Ct. Act, & Sec. 780, C. C. P.) 
 It is very important, therefore, if a party desires a prompt dis- 
 position of the case upon appeal, that he sees to it that a notice 
 of argument is served. It is not necessary, however, to serve a 
 new notice of argument for every successive term, if such notice 
 has once been served and proof of service filed and so marked 
 upon the clerk's calendar, the same marking as to notice of 
 argument will appear upon subsequent calendars. 
 
 If either party serves a notice of argument and files the 
 same with proof of service with the clerk at least six days be- 
 fore the first day of the term, the case will be so marked upon 
 the calendar and will be called when reached. If the appellant 
 fails to appear upon the call of the calendar, and the notice of 
 argument was served and filed with proof of service iy the re- 
 ftpondent the judgment will be affirmed (Rule VI, page 11, 
 ante ) , such afiflrmance carries full costs of the appeal. 
 
 Second. Proof that such notice of argument has been served 
 must be filed with the Clerk of the Appellate Term at least six 
 daps before the first day of the term. (Rule 5, page 10 ante). 
 
 This rule is of equal importance; unless this is done, al- 
 though the case may appear upon the calendar, it will not be 
 called by the Court, and the case will go over until the next 
 term or may be dismissed by the Court. 
 
 53 
 
BEIEFS — SERVICE AND FILING OP. 53 
 
 Formerly it frequently happened that upon the call of the 
 calendar, a party would fail to answer when his case was 
 called, and the opposing party, possibly represented at the call 
 of the Calendar, by 9. clerk or person who did not know the 
 status of the case, would ask for an afdrmance of the judgment, 
 or a dismissal of the appeal, subsequently it would appear that 
 the party who appeared and asked for such direction of the 
 Court, had not served a notice of argument and was therefore 
 in no position to be heard; Rule 5, page 10 ante, prevents 
 a recurrence of such a case. 
 
 Third. Another rule to be observed is that requiring the 
 service of the briefs (Rule 5, page 10 ante). 
 
 I 
 I 
 
 I 
 
 Sec. 2 — Briefs — Service and Piling of. i 
 
 The rule requires that at least four days before the first 
 day of the term, at which the case is noticed for argument, the 
 appellant shall cause a copy of his brief to be served upon the 
 attorney for the respondent and also file with the Clerk of 
 the Appellate Term, the requisite number of copies of his 
 brief; 10 copies of the briefs must be filed upon appeal from 
 orders and judgments of the City Court and 3 upon appeals 
 from the Municipal Courts; at the same time there should be 
 filed 10 copies of the case and papers upon appeals from the 
 City Courts. The Respondent must upon the first day of the 
 term also file his briefs with the Clerk and serve a copy upon 
 the appellant's attorney. If the appellant appears upon the 
 call of the calendar, but lias failed to serve and file his briefs 
 as provided for by Rule 5, page 10 ante, the appeal will he 
 dismissed; this rule is strictly enforced — 110 costs are im- 
 posed upon dismissals of appeals. 
 
 If the respondent has failed to serve and file his briefs, the 
 appeal will be heard upon the appellant's briefs alone unless 
 
 Note. — When the Appellant files his brief he must pay the clerk of 
 the Appellate Term a calendar fee of $1.00. 
 
54 BRIEFS — FORM OF — ARGUMENT OF SUBMISSION UPON. 
 
 upon consent of the appellant the Court should permit thojn to 
 be served at the time of the hearing of the appeal. 
 
 These rules are intended to expedite the hearing and dis- 
 position of appeals, and owing to the constantly increasing busi- 
 ness of this Court are for the benefit of all parties. When the 
 Court has heard the arguments it is ready to proceed at once 
 to the consideration of the cases and no delay is occasioned 
 by waiting for briefs to be filed. The briefs must be printed in 
 accordance with Eule 43 of the General Eules of Practice, 
 which provides 'that the cases and points' shall be printed on 
 white writing paper with a margin on the outer edge of the leaf, 
 not less than one and one-half an inch wide * * *." 
 
 Sec. 3 — ^Briefs — (a) City Court Briefs — (b) Municipal Court Briefs. 
 
 The type shall be uniform in size and of the kind known as 
 'Small Pica. 
 
 This provision applies only to briefs upon appeals from 
 the City Court, as upon appeals from Municipal Courts type- 
 written briefs are allowed to be submitted. Eule 5, page 10 
 ante. Briefs must be numbered to correspond with the number 
 of the case on the Calendar as printed in the Law Journal, Eule 
 5, page 10 ante. 
 
 Appeals from orders of the City Court are called first, and 
 upon such call they can be submitted without argument, or they 
 may be marked "Eeady" and held to await the call for argu- 
 ment. After the Calendar of Appeals from orders of the City 
 Court is called, then follows the call of Appeals from Judgments 
 of the City Court. These Cases upon Appeal are called the first 
 day of the term. After the Court has ascertained what causes 
 are submitted or marked "Eeady" the Calendar of Appeals 
 from Orders of the City Court is again called and upon the 
 second call of the Appeals from Orders or from Judgments of 
 the City Court, parties must submit their cases without argu- 
 ment or proceed to argue. No cases are set down for any par- 
 ticular day for argument. The Eule is imperative that when a 
 case is called for argument, parties must either argue or sub- 
 
BEIEFS — SUBMISSION UPON FAVORED. 55 
 
 mit without argument, and no excuse, such as engagement of 
 counsel or otherwise, will be taken. This applies to all appeals. 
 Hule 5, page 11 ante. 
 
 The Court favor the submission of proper points: 
 
 "A party has no right to expect the Court to be laborious 
 in their investigation or ingenious in their endeavor to support 
 a Judgment when his own counsel is either unwilling or unable 
 to aid them by any suggestions or examinations of authorities on 
 lis behalf." Agreda vs. Faulberg, 3 E. D. Smith, 178-180. 
 
 Ordinarily a careful statement of the points made, with a 
 full reference to the authorities relied upon, will be the best 
 mode of argument, for in such a case the Court will fully and 
 carefully examine each material point, which will be certain 
 not to escape its attention, if the brief is clear, full and ac- 
 curate as to the facts and authorities. 
 
 Eule 5, page 11 ante^ limits the time which will be given 
 for argument to fifteen ( 15 ) minutes upon appeals from Orders 
 of the City Court and Judgments and Orders of the Municipal 
 Court, and to thirty (30) minutes upon appeals from Judg- 
 ments of the City Court. 
 
 In practice it is usual to submit the cases upon the briefs 
 ■of the respective counsel, and this practice is to be commended. 
 A good brief is much better than a poor argument. Many prac- 
 titioners fall into the error of taking up the time of the Court 
 T)y making an oral argument consisting largely of references 
 to the testimony given upon the trial. This is, in a great ma- 
 jority of cases, practically a waste of the valuable time of the 
 ; Oourt and accomplishes no good purpose. The record in each 
 case is always read with great care, and it is very seldom that 
 any material portion of the testimony is overlooked or dis- 
 regarded. Where, however, the points are numerous and the 
 facts are complicated, an oral argument, if clearly presented, 
 in as brief and succinct a manner as possible, will sometimes 
 ■save the Court labor. Such argument should also be accom- 
 panied by a brief fully and carefully setting forth the facts and 
 the authorities relied upon by the party filing it. 
 
CHAPTER VII. 
 
 DECISIONS— ORDERS— PRACTICE THEREON. 
 
 Sec. 1 — Decisions. Sec. 3 — Practice After Entry of Or- 
 
 Sec. 2 — Orders. ders. 
 
 Sec. 1 — Decisions. 
 
 After the Court has heard all the arguments upon the ap- 
 peals, a recess is taken to enable the Court to examine the rec- 
 ords and prepare opinions in those cases in which opinions are to 
 be written. 
 
 When judgments are reversed absolutely, or reversed and 
 new trials ordered, opinions are always written, setting forth 
 the error committed that requires a reversal of the judgment. 
 Judgments of affirmance are usually rendered without an opin- 
 ion. 
 
 Every case submitted is carefully examined by each of the 
 Justices sitting at that term, and their concurrence in 
 or dissent from the result, is endorsed upon the opinion or de- 
 cision, or a dissenting opinion written by the Justice who does 
 not agree with his associates. Usually all of the decisions are 
 handed down some time during the last week of the current 
 month, and are filed with the Clerk of the Appellate Term. 
 
 Sec. 2 — Orders. 
 
 Formerly, the practice was, when a decision was filed 
 either upon an appeal or a motion, the successful party prepared 
 an order in conformity with the decision and served a copy 
 thereof upon his adversary, giving him at least two days' notice 
 of the time when the same would be presented to the Court for 
 signature. This proposed order was submitted to the Clerk of 
 the Appellate Term with proof of service. If the adverse party 
 desired any correction to or amendment of such order, he pre- 
 pared an order conforming to his proposed form and handed 
 
ORDERS OF APPELLATE TERM UPON DECISIONS. 57 
 
 it to the Clerk prior to tlie day named in the order for its pre- 
 sentation to the Court. 
 
 These orders were then handed to the Justices for signature. 
 The Presiding Justice signs all orders, except those grant- 
 ing leave to appeal to the Appellate Division, in which case the 
 Justices who heard the appeal must sign the order. 
 
 The practice of giving two days' notice of settlement of all 
 orders involved a delay, of that length of time, at least and in 
 actual practice, frequently of more, and to obviate this delay, 
 Eule 8, page 11 ante, was adopted. 
 
 Under this rule, every decision given, whether upon an ap- 
 peal or upon a motion, will be accompanied, when the same is 
 filed with the Clerk, by the proper and necessary order. 
 
 These orders are immediately entered and filed by the Clerk 
 of the Appellate Term and deposited in the County Clerk's Of- 
 fice. 
 
 A motion for a resettlement of such orders will be enter- 
 tained by the Court, and such motions are governed by the same 
 rules as formerly applied to the original order, viz., two days' 
 notice of motion for a resettlement must be given. 
 
 Unless it is clear that the order is defective or incorrect; such 
 a motion should not be made, for if denied, it will be with costs. 
 
 The moving papers for resettlement of an order should con- 
 tain a copy of the proposed order or a clear and distinct state- 
 ment in the notice of motion as to the particular amendment or 
 correction asked to be made to the original order. 
 
 If an order accompanies the moving papers it should con- 
 tain a recital to the effect that the order as resettled should take 
 the place of the original order. If no order is handed up and 
 the motion is granted, the Court will make and hand down 
 the proper order with the decision upon the motion. 
 
 Eule II, page 8 ante, provides that all orders shall be filed 
 with the Clerk of the Supreme Court. (County Clerk.) 
 
 Correct forms for orders will be found at the end of the 
 book. 
 
58 PEACTICB AFTER ENTRY OF ORDER UPON DECISION. 
 
 Sec. 3 — Practice After Entry of Orders. 
 
 In cases of appeals from a Judgment or Order of the City 
 Oourt, the successful party should procure from the County 
 Clerk a certified copy of the order of reversal or affirmance, as 
 "the case may be, and also serve a copy upon his adversary. Upon 
 presentation of a certified copy of the order to the Clerk of the 
 Appellate Term with a fee of fifty cents, he will at once trans- 
 mit the original case or papers upon appeal filed in his office, 
 to the Clerk of the City Court, as required by Section 1345 of 
 the Code of Civil Procedure, and in accordance with the pro- 
 Tisions of Rule II, page 8 ante, in which Court the judgment 
 may then be entered ; and the costs taxed. 
 
 In the case of an appeal from a judgment or order of the 
 Municipal Court, upon procuring a certified copy of the order 
 reversing or affirming the judgment or order of that Court, the 
 Clerk of the Appellate Term will deliver the return on appeal, 
 taking his receipt therefor, to the person presenting 
 the certified copy of the order, and such return and 
 order must then be taken and delivered to the Clerk 
 of the Municipal Court, in the District where the action 
 was tried, there to remain on file. (Rule II, page 8 ante.) The 
 proper judgment is to be entered in the Municipal Court. (Sec- 
 tions 327 and 341, Municipal Court Act.) 
 
 The order, if it be one ordering a new trial of the case, in 
 a Municipal Court, will contain the date fixed for the new trial 
 in accordance with the provisions of Section 3065 of the Code 
 of Civil Procedure, and the provisions of Rule II, page 8 
 ■ante. It does not follow, that the new trial must necessarily 
 take place upon the day named in the order as it is provided in 
 Section 3065, Code of Civil Procedure, that : 
 
 "Thereupon the like proceedings must be had in the action, 
 as upon the return of a summons personally served." 
 
 This enables either party to procure such necessary jadjourn- 
 ments as the Court might grant upon an application made 
 therefor upon the return day of a summons personally served. 
 
CHAPTER VIII. 
 
 WITHDRAWAL OF APPEAL AXD CONSENT 
 TO AFFIRMANCE OR REVERSAL. 
 
 Sec. 1 — Settlement made after ap- Sec. 2 — Withdrawal of appeal, 
 peal taken without consent of at- Sec. 3 — Consent to affirmance, 
 toruey. Sec. 4 — Consent to reversal. 
 
 Sec. 1 — Settlement After Appeal Taken Without Consent of Attorney. 
 
 If after the appeal is taken, tlie parties make a settlement, 
 Tvhich is not authorized or consented to by the attorney for 
 the respondent, the appellant cannot withdraw his appeal or 
 move for a dismissal thereof and defeat the rights of the attor- 
 ney; particularly if the attorney has an interest in the recov- 
 •ery and in such a case even though the parties stipulate and 
 ■consent to a dismissal or withdrawal of the appeal the judgment 
 will upon motion of respondent's attorney be affirmed. (Stil- 
 Tvell V. Armstrong, 28 Misc., 546; s. c, 59 Supp., 671.) 
 
 Sec. S — ^Withdrawal of Appeal. 
 
 It is extremely doubtful whether the Appellate Term has 
 power to permit an appeal to be withdrawn after it has been 
 taken; neither may the Court from which the appeal has been 
 taken permit or authorize the appeal to be withdrawn. ( Powell 
 T. Schenck, 6 A. D., 130; s. c, 39 Supp., 877.) 
 
 Jn the case of Mallery v. Interurban St. Ry. Co., 92 Supp., 
 ■60, the Appellate Term expressly held that after an appeal has 
 been argued and submitted, the appellant will not be permitted 
 to withdraw his appeal or have it dismissed, but that the judg- 
 ment would be affirmed with costs. The Court used the follow- 
 ing language, which would seem to indicate that in no case 
 could the appeal be withdrawn after having been taken and per- 
 "fected : "Nowhere in the Municipal Court Act, nor in the rules 
 promulgated by the Appellate Division is there to be found any 
 provision for the withdrawal against the objection of the 
 
 59 
 
60 WITHDKAWAIi — CONSENT TO AFFIRMANCE OK REVEKSAL. 
 
 respondent of an appeal once taken and perfected, nor the devo- 
 lution upon the Court of the power to allow such withdrawal." 
 If the appeal has not been perfected it would seem that if 
 the appellant seeks to save the costs upon affirmance that his 
 object might be attained by failing to take steps to perfect it 
 or to bring it on. for argument, in which event the respondent 
 may move to dismiss the appeal and upon such motion but Ten 
 Dollars costs would be granted against him. 
 
 Sec. 3 — Consent to Affirmance. 
 
 Although as is set forth in Sec. 4 (post) the respondent 
 upon a judgment or order of the Municipal Court may save him- 
 self from the imposition of full costs by stipulating to a reversal 
 of the judgment, no provision is made, for an appellant to save 
 costs by consent to affirmance after appeal has been taken and 
 perfected, nor will he be permitted to have his appeal with- 
 drawn or dismissed (see Sec. 2, p. 59 ante) and even though he 
 discover that the judgment or order appealed from is correct 
 he must submit to an affirmance vpith costs, if the appeal has 
 been perfected, unless the same should be dismissed for failure 
 to prosecute the same. 
 
 Sec. 4 — Consent to Reversal. 
 
 There seems to be no provision for saving costs upon appeal 
 from judgment or order of the City Court by consenting to a 
 reversal of the judgment or order appealed from. There is, how- 
 ever, statutory provision for limiting the costs upon an appeal 
 taken from the Municipal Court, Section 325 of the Municipal 
 Court Act, so much of which is applicable, provides as follows : 
 
 "Within twenty days after the service of a notice of appeal 
 on the respondent, he may serve upon the appellant or his at- 
 torney a written stipulation that the judgment appealed from 
 may be reversed with five dollars costs and disbursements of 
 the appeal, and thereafter no further steps shall be taken in 
 such appeal, except to enter judgment in pursuance of such 
 stipulation for the enforcement thereof." * * ♦ See Far- 
 nolo V. Eafanelli, 84 Supp., 549. 
 
CHAPTER IX. 
 
 ORDERS APPEALABLE AND NON-APPEAL- 
 ABLE. 
 
 Sec. 1 — Municipal Court — Orders Sec. 4 — City Court — Orders non- 
 appealable, appealable. 
 
 Sec. 2 — Municipal Court — Orders Sec. 5 — Discretionary orders, 
 non-appealable. 
 
 Sec. 3 — City Court — Orders appeal- 
 able. 
 
 Sec. 1 — Municipal Court — Orders Appealable. 
 
 The orders of the Municipal Court that are appealable are 
 defined in Sections 253 to 257 of the Municipal Court Act and 
 include (1) order denying motion to open default; (2) order 
 granting or denying motion to set aside, vacate or modify a 
 judgment; (3) order granting or denying motion for new trial 
 for fraud or newly discovered evidence: and appeals are lim- 
 ited to the orders mentioned above. White v. Lawyers' Surety 
 Co., 84 Supp., 247; Pascocello v. Bklyn. Hts. E. R. Co., 26 Misc. , 
 412; s. c, 56 Supp., 177; Cohen v. Ridgewood Shirt Co., 84 
 Supp., 188; Spiegelman v. Union Ry. Co., 95 A. D., 92; s. c, 88 
 Supp., 478. 
 
 Order vacating judgment. Dept. of Health v. Babcock, 84 
 Supp., 604, 
 
 Order vacating judgment on ground that it was not rendered 
 icithin the statutory time. Stern v Fleck, 102 A. D., 272 ; s. c, 
 92 Supp., 453. 
 
 Order denying motion to open a default. Schrenkeisen v. 
 Kroll, 85 Supp., 1072. It was formerly held (Beebe v. Nassau 
 Show Case Co., 41 A. D., 456; s. c, 58 Supp., 769) that no 
 appeal would lie from an order denying a motion to open a 
 default, but Sec. 257 of the Municipal Court Act permits the 
 appeal to be taken. ( Schrenkeisen v. Kroll, 85 Supp., 1072. ) 
 
 Order setting aside verdict as against the weight of evidence. 
 Bauer v. Met. St. Ry. Co., 29 Misc., 636; s. c, 61 Supp., 164. 
 
 61 
 
62 MUNICIPAL COURT ORDERS APPEALABLE AND NON-APPEALABLE. 
 
 Final Order in Summary Proceedings. (Sec. 310 Municipal 
 Court Act.) Sipp v. Reich, 88 Supp., 960; Gossett v. Fox, 90 
 Supp., 477. 
 
 Sec. 2. — Municipal Court Orders — Non-appealable. 
 
 Order opening default. Benvenuta v. Candeloro, 43 Misc.,, 
 684; s. c, 88 Supp., 357; in this case the Court says: "It 
 would seem that under the provisions of the Municipal Court 
 Act as it now stands the defendant who has suffered a default 
 judgment to be entered against him and upon motion been al- 
 lowed to open such default, has no remedy but to comply with, 
 the terms imposed as a condition for such favor granted and 
 to proceed with the trial of his action." See also Leavitt v. 
 Katzoff, 43 Misc., 26; s. c, 86 Supp., 495; Maneely v. Mayers^ 
 43 Misc., 380; s. c, 87 Supp., 471; Smith v, Ely, 46 Misc., 458; 
 s. c, 92 Supp., 310 ; Long Branch Pier Co. v. Crossley, 40 Misc.^ 
 249; s. c, 81 Supp., 905; Consumers' Park Brewing Co. v. 
 Greenberger, 47 Misc., 398 ; s. c, 94 Supp., 38 ; Fischer v. Bklyn. 
 Hts. E. E. Co., 84 Supp., 254. 
 
 Order making another party defendant. White v. Lawyers' 
 Surety Co. of N. Y., 84 Supp., 247. 
 
 Order denying motion to transfer case to another district, 
 Pascocello v. Bklyn. Hts. E. E. Co., 26 Misc., 412; s. c, 56 
 Supp., 177; Brodnetsky v. Gottlieb (decided Appellate Term, 
 December, 1905, not reported). 
 
 Order granting leave to amend. Klinker v. Guggenheimer,. 
 92 Supp., 797. 
 
 Order denying motion to vacate judgment not made in the 
 statutory time. Cohen v. Eidgewood Shirt Co., 84 Supp., 188. 
 In this case defendant failed to move within the time pre- 
 scribed by Section 254 of the Municipal Court Act and it was 
 held that he lost his right to be heard or appeal, and his mo- 
 tion was for that reason denied, and although had he moved 
 in time under the section (254) he could have the order re- 
 viewed. His failure to comply with the requisites of the statute 
 led to the dismissal of his appeal. 
 
ORDEES NON-APPEALABLE — ORDERS APPEALABLE CITY COURT. 65 
 
 Order dismissing Nummary Proceedings in the absence of 
 -final order. Sipp v. Eeich, 88 Supp., 960 ; Gossett v. Fox, 90 
 Supp., 477. 
 
 Order imposing costs as condition of allowing amendment.. 
 Toher v. Schaefer, 92 Supp., 795. 
 
 Order denying motion for retaxation of costs. Spiegelman 
 V. Union Ky. Co., 95 A. D., 92 ; s. c, 88 Supp., 478. The remedj 
 where retaxation is sought under Sec. 342 of the Mun. Ct. Act, 
 is to appeal from that part of the judgment including the costs- 
 complained of (same case). 
 
 Order denying motion to vacate attachment. Gansevoort 
 Bank v. Altshul, 26 Misc., 6 ; s. c, 55 Supp., 733 ; Maas v. Nanke- 
 Till, 97 Supp., 980. 
 
 Remedy — where order is not appealable. Although an or- 
 der which has been granted or denied may not be appealable 
 under Sections 253-257 of the Municipal Court Act, the ag- 
 grieved party is not without remedy, for, he may raise the 
 question by an appeal from the judgment rendered and show 
 by reciting in his notice of appeal that on the argument he in- 
 tends to bring up for review the granting or denial of the order 
 in question. 
 
 Sec. 3 — City Court Orders — Appealable. 
 
 The rule as to appeals from orders of this Court is that it 
 must affect a substantial right or it is not appealable (see Sec. 
 1340, Code of Civil Procedure; see also Sees. 3189, 1347 and 
 1348, Code of Civil Procedure) ; Fromme v. Poerschke, 95 Supp., 
 525; Beary v. Hoster, 24 St. Kep., 878; s. c, 6 Supp., 330;: 
 Quinn v. Winter, 15 Daly, 383; s. c, 7 Supp., 755; Blooming- 
 dale V. Steubing, 14 Misc., 549 ; s. c, 35 Supp., 1074. 
 
 Order punishing for contempt in supplementary proceed- 
 ings. Deane v. Sire, 95 Supp., 556. 
 
 Order denying motion to vacate a judgment for non-service 
 of summons, made at Special Term although discretionary is. 
 appealable. Droham v. Norton, 1 Misc., 486; s. c, 21 Supp.^ 
 579. 
 
64 CITY COUKT ORDERS APPEALABLE AND NON-APPEALABLE. 
 
 Order directing answer to he made more definite and certain. 
 Eisner v. Eisner, 89 Hun, 480 ; s. c, 35 Supp., 393. 
 
 Order denying statutory right to costs. Quinn v. Winter, 
 15 Daly, 383 ; s. c, 7 Supp., 755. 
 
 Order striking papers from settled case for failing to have 
 them marked for identification. Satkofsky v. Jarmulowsky, 95 
 Supp., 555. 
 
 Order denying motion for Jury trial. Beary v. Hoster, 
 24 St. Kep., 878; s. c, 6 Supp., 330. 
 
 Order setting aside verdict for misconduct of juror. Berni- 
 kow V. Pommerantz, 94 Supp., 487. 
 
 Order reversing Clerk's taxation of costs. Bloomingdale v. 
 Steubing, 14 Misc., 549; s. c, 35 Supp., 1074. . 
 
 Order directing acceptance of service of notice of appeal 
 made at Special Term of the City Court. Masor v. Jacobus, 84 
 Supp., 270. 
 
 Order of reference and order denying motion to vacate the 
 order. Albany Brass & Iron Co. v. Alton, 84 Supp., 180. 
 
 Order denying motion for leave to resettle order by granting 
 leave to renew where motion was denied for insufficiency of 
 papers. Slattery v. Noble, 95 Supp., 606. 
 
 Order of taxation of disbursements upon reversal where 
 disbursements not included in order of Appellate Term. Wil- 
 son V. Lange, 84 Supp., 519. 
 
 Order setting aside verdict and directing new trial. Cohen 
 V. Sofranski, 95 Supp., 524. 
 
 Order denying motion to set aside service made on a non- 
 resident witness attending at trial. Kinsey v. American Hard- 
 wood Mfg. Co., 94 Supp., 455. 
 
 Sec. 4 — City Court — Orders Not Appealable. 
 
 Order vacating execution against wages of employee. An 
 order vacating an execution directed against the salary or 
 wages of an employee under the provisions of Sec. 1391 of 
 the Code of Civil Procedure as amended by Chap. 175 of the 
 
OEDEES NON-APPEALABLE — DISCRETIONARY ORDERS. 05 
 
 Laws of 1905 is not appealable. Emal v. Wheeling (decided 
 App. Term, November, 1905, not reported). 
 
 Order overruling or sustaining demurrer. Denslow t. Bush, 
 9 Misc., 337 ; s. c, 29 Supp., 705. The remedy is by appeal from 
 the interlocutory judgment which should be entered. Shef- 
 field V. Murray, 80 Hun, 555; s. c, 30 Supp., 799; Smith v. 
 Ely, 46 Misc., 458; s. c, 92 Supp., 310; Muttart v. Muttart, 93 
 Supp., 468. 
 
 Order dismissing complaint. Met. El. Ey. Co. v. Johnston, 
 
 84 Hun, 83; s. c, 32 Supp., 49, affirmed, no opinion, 158 N. Y., 
 739. The remedy is by appeal from the judgment which should 
 be entered. Citron v. Bayley, 36 A. D., 130; s. c, 55 Supp., 
 382. Kromback v. Penn. Steel Co., 84 Supp., 297. 
 
 Order reciting that it was entered hy consent. Dawson v. 
 Parsons, 74 Hun, 221 ; s. c, 26 Supp., 327 ; Krakower v. Tauber, 
 
 85 Supp., 339. 
 
 Order reciting that it was entered hy default of the party 
 seeking to review it. Matter of Peekamose Fishing Club, 5 
 A. D., 283; s. c, 39 Supp., 124 (appeal dismissed, 151 N. Y., 
 511). 
 
 Order denying motion to compel acceptance of notice of 
 appeal after expiration of time to appeal. Newkirk v. Hooker, 
 12 Misc., 402; s. c, 33 Supp., 694. 
 
 Order appointing receiver in supplementary proceedings. 
 Happel V. Lippe, 95 Supp., 523, the remedy is by motion to va 
 cate the order, to the judge who made it (s. c). 
 
 Order granting a motion for discontinuance of an action. 
 Action discontinued without terms and by consent of defend- 
 ant. Order not appealable. Krakower v. Tauber, 85 Supp., 
 339. 
 
 Sec. 5 — Discretionary Orders. 
 
 The rule is that : Granting or refusing matters within the 
 discretion of the Court are not reviewable unless an abuse of 
 discretion is shown. Eichard v. National Distilling Co., 95 
 Supp., 547. 
 
66 DISCRETIONARY ORDERS — APPEAL FROM. 
 
 Amendment granted during the trial under Section 723 
 of the Code and Section 166, Mun. Ct. Act, is discretionary 
 and will not be reviewed. Ansonia Brass & Copper Co. v. Grer- 
 lacli, 8 Misc., 256; s. c, 28 Supp., 546; Lanpher v. Clark, 77 
 Hun, 506; s. c, 29 Supp., 107 (reversed, 149 N. Y., 472, on other 
 grounds). 
 
 Amendment reftisal 'to allow. O'Neil v. Hester, 82 Hun,, 
 432; s. c, 31 Supp., 510; Toher v. Schaeffer, 96 Supp., 470. 
 
 Amendment of complaint allowed^ although for greater 
 amount than originally claimed. Brady v. Cassidy, 13 Supp.^ 
 824; s. c, 37 St. Rep., 501. 
 
 Bill of Particulars granting or refusing. Van Olinda v. 
 Hall, 82 Hun, 357; s. c, 31 Supp., 495. 
 
 Order denying leave to renew motion — where original mo- 
 tion was denied because of insufficiency of or defect in mention 
 papers. Slattery v. Noble, 95 Supp., 606. 
 
 Want of prosecution of action. What will justify grant- 
 ing of order dismissal of action. Brown v. Gauss, 95 
 Supp., 538; McMann v. Brown, 92 A. D., 249; s. c, 87 Supp.,. 
 38. 
 
 Default — motion to open denied when it will be reversed. 
 Richard v. National Distilling Co., 95 Supp., 547. 
 
 Default motion to open granted — when it will be afflrmed. 
 Kapner v. Samuels, 84 Supp., 195. 
 
CHAPTER X. 
 
 DEFAULT JUDGMENT— HOW FAR REVIEW- 
 ABLE ON APPEAL. 
 
 Sec. 1 — Default judgment defined. Sec. 8 — Non-service of summons — 
 
 Sec. 2 — General appearance — Effect Motion to open default where 
 
 of upon riglit to appeal. there are conflicting afl&davits as 
 
 Sec. 3 — Default judgment upon to service. 
 
 failure of plaintiff to appear. Sec. 9 — Non-service of summons — 
 
 Sec. 4 — Appearance of both, parties Appeal from judgment independ- 
 
 — And plaintiff suffers default. ent of motion in the Court below. 
 
 Sec. 5 — Reversal of order opening Sec. 10 — Non-service of summons 
 
 default — Effect of upon judgment — Practice upon appeal where 
 
 rendered. made upon affidavits to the Ap- 
 
 Sec. 6 — Non-service of summons — pellate Court. 
 
 Effect of motion by defendant to Sec. 11 — Non-service of summons 
 
 open default upon this ground. — Special appearance — Effect of. 
 
 Sec. 7 — Non-service of summons — 
 Order denying motion to open de- 
 fault appealable. 
 
 Sec. 1 — ^Default, Judgment Defined. 
 
 How Treated in Appellate Term. 
 
 Considerable confusion lias arisen in the Municipal Court 
 regarding defaults. This has been from failure to distinguish 
 between those cases where process has been served or the de- 
 fendant has appeared in an action, and subsequently, upon an 
 adjourned day failed to appear, and those cases where the pro- 
 cess of the Court has never been served and the defendant has 
 never appeared in the action. 
 
 In discussing these situations we must first determine what 
 constitutes a default. It cannot be said that where a defend- 
 ant has never been served with a summons, and has never 
 voluntarily appeared in the action that he is in default. Diehl 
 V. Steele, Feb., 1906, 97 Supp., 1024. 
 
 Default defined. "A default implies the existence of juris- 
 diction in the Court to render the judgment. If no jurisdic- 
 tion has been obtained there has been no 'default' through non- 
 appearance, and the statute, as it appears has conferred upon 
 
 67 
 
68 DEFAULT JUDGMENT — EFFECT OF GENERAL APPEARANCE. 
 
 the Municipal Court no power to set aside judgments upon 
 the ground that they were rendered without jurisdiction, be- 
 cause the summons was not served upon the defendant." Spiro- 
 pulos V. Magnioni, 49 Misc., 90 ; <s. c, 96 Supp., 438. Diehl v. 
 Steele, 97 Supp., 1024. 
 
 Section 253 of the Municipal Court Act applies to judg- 
 ments which the Court has power to render, by having ob- 
 tained jurisdiction over the person of the defendant, either 
 by service of process or his voluntary appearance, and has no 
 reference to judgments entered where service was never made 
 nor any appearance on the part of the defendant. 
 
 Sec. 253, Mun. Ct. Act reads : 
 
 "Court may open default. The Court, in a. district in which, a de- 
 fault is taken in an action or summary proceeding, may at any time, 
 upon motion made upon such notice as the Court may direct, open such 
 default, and set aside, vacate or modify any judgment or final order 
 entered thereon, and set the action or proceeding down for pleading, 
 hearing or trial, as the case may require, upon such terms and condi- 
 tions as the Court may deem proper." 
 
 Rule as to. The rule regarding default judgments in the 
 Municipal Court is the same as that in a Court of record 
 (see Oliver v. French, 80 Hun, 175; s. c, 30 Supp., 52), and an 
 appeal in the first instance will not lie from a judgment ren- 
 dered by default. Brown v. Bouse, 43 Misc, 72 ; s, c, 86 Supp., 
 240, 
 
 Sec. 2 — General Appearance — Effect of upon the Right to Appeal from 
 
 Default Judgment. 
 
 A defendant who has appeared generally and subsequently 
 allows a judgment to be rendered against him by default is not 
 entitled to appeal from the judgment, Kerr v. Walter, 104 
 A. D., 45; s. c, 93 Supp., 311; Levensen v. Arnold, 97 Supp., 
 990. 
 
 It is his duty to first move to open the default, for he does 
 not stand in any better position than if he had defaulted in a 
 Court of record. Brown v. Bouse, 43 Misc, 72 ; s. c, 86 Supp., 
 240. 
 
DEFAULT JUDGMENT — FAILURE OF PLAINTIFF TO APPEAR. 69 
 
 If the defendant desires to be relieved from the judgment 
 and makes application to open his default he must do so prompt- 
 ly. Although Section 253 declares that the Court "may at any 
 time" open such default, thus seemingly giving the Municipal 
 Court a longer time in which to relieve a party than is given in 
 a Court of record (Section 724, C. C. P.), which is limited to 
 the granting of such a motion to one year; nevertheless, it is 
 quite clear that the limit fixed by the Code section would be 
 followed by the Supreme Court upon an appeal, if it appeared 
 that a party had been permitted to open a default after that 
 time had expired. A defendant making such a motion should 
 show a good and sufficient excuse, and also file an affidavit of 
 merits, a copy of his proposed answer, and should conform to 
 the practice in a Court of Record as near as possible. See 
 Thornall v. Turner, 23 Misc., 363 ; s. c, 51 Supp., 214 ; also Rule 
 23, Gen. Rules Pr. 
 
 Terms imposed. Section 256 of the Municipal Court Act 
 contains the conditions which may be imposed for granting a 
 motion to open a default. No greater sum than $10 can be im- 
 posed, however (Toher v. Schaefer, 92 Supp., 795), and the de- 
 fendant must comply with the conditions imposed. Benvenuta 
 V. Candeloro, 43 Misc., 684; s. c, 88 Supp., 357. 
 
 Sec. 3 — ^Default Judgment Upon Failure of Plaintiff to Appear. 
 
 Where plaintiff fails to appear on the return day the de- 
 fendant may, if the original summons is not returned and filed, 
 file his copy of the summons with proof of service and notice of 
 appearance, and the Court must endorse a dismissal of the 
 action thereon, and award costs in a proper case; if this is 
 done the plaintiff may move to open his default ; and an order 
 denying his motion is appealable. Elfenbein v. Rosenthal, 
 47 Misc., 380; s. c, 94 Supp., 40; but if the defendant elects 
 not to appear and refrains from filing the copy of the sum- 
 mons and notice of appearance, the action abates and the 
 Court loses jurisdiction, and neither party may move to 
 
70 REVERSAL OP ORDER — EFFECT OF — NON-SERVICE OF SUMMONS. 
 
 open "the default" for there is none to open. Elfenbein 
 V. Rosenthal (supra) ; Eichner v. Cohen, 46 Misc., 126; s. c, 
 91 Supp., 357. 
 
 Sec. 4 — ^Default Judgment Upon Failure of Plaintiff to Appear. 
 
 When both parties appear and plaintiff suffers default. The 
 plaintiff may have his default opened if the defendant appears 
 and the case is dismissed because of the unreadiness of the plain- 
 tiff to proceed with the trial, Eothenberg v. Herman, 94 
 Supp., 6. 
 
 Sec. 5 — ^Reversal of Order Opening Default — Effect of Upon Judgment 
 
 Rendered. 
 
 Where there has been a default opened, either of the parties 
 may proceed to trial, and the unsuccessftil party may appeal 
 from the judgment and bring up for review the order opening 
 the default. It may be that the person who thus appeals may 
 have been defeated in his opposition to opening the default. 
 If, however, the Appellate Court reverses the order opening the 
 default the subsequent judgment rendered likewise falls with it, 
 and the original judgment is reinstated. See Cahill v. Lilien- 
 thal, 30 Misc., 429; s. c, 62 Supp., 524. While this case was 
 decided under the former practice and was peculiarly applic- 
 able to the facts therein stated, nevertheless the principle it 
 enunciates in so far as it lays down that the reversal of the 
 order opening the default restores the judgment vacated, is good 
 law at this time. 
 
 Sec. 6 — Non-service of Summons — ^Effect of Motion by Defendant to Open 
 Default Upon this Ground. 
 
 Where a defendant in the Municipal Court moves to open his 
 so-called default, and claims that process was never served 
 upon him, he thereby concedes that there is an actual 
 default and must be deemed to have submitted himself to 
 the jurisdiction of the Court. By the making of such a 
 
NON-SEBVICE — ORDER APPEALABLE — DENYING MOTION UPON. 71 
 
 motion he characterizes the situation as a default, and must 
 be regarded as having conferred jurisdiction upon the Court 
 to open it, and if upon conflicting afladavits the Court should 
 grant the motion, the case should be set down for "pleading, 
 hearing or trial" in accordance with Section 253, supra. No 
 appeal would lie from such an order, for it will be treated as 
 one opening a default from which no appeal can be taken. 
 See Section 257, Municipal Court Act. Spiropulos v. Magnioni, 
 49 Misc., 90 ; s. c, 96 Supp., 438. ( See also matter of McLean, 
 138 N. y., 158.) (See also 34 Misc., 350; affd. 63 A. D., 530.) 
 Neither can such a motion be treated as being one to merely 
 Tacate a judgment. The vacating of a judgment provided for 
 by the Section contemplates such vacatur, only as an incident 
 to the opening of the default, and not as the primary object of 
 the motion, and if a defendant elects to invoke the provisions of 
 that section he is, in the event of success, entitled to no more 
 relief than is provided for therein. Nor can a defendant who 
 claims never to have been served and who has not appeared in 
 the action, have a judgment vacated under Sec. 254 Municipal 
 Court Act, as that section provides for such vacatur, only after 
 a trial of the issues. Deihl v. Steele, 97 Supp., 1024. 
 
 Sec. 7 — Non-service of Summons — Order Denying Motion to Open, 
 
 Default Appealable. 
 
 If a motion is made to open a default upon the claim of non- 
 service and non-appearance and such a motion is denied, the 
 defendant can appeal from the order denying it as Sec. 257, 
 Municipal Court Act, provides for an appeal from an order 
 denying a motion to open a default. Schrenkeinsen v. KroU, 85 
 Supp., 1072; Harris v. Mrshofer, 98 Supp., 212. See Monroe 
 Bank v. Lichtenstein, 96 Supp., 260 ; Bass v. Carley, 96 Supp., 
 1023. Should the Appellate Court determine that the 
 Oourt below had committed an abuse of discretion in 
 denying defendant's motion, the order would be reversed, and 
 although we have been unable to find any case similar to the sit- 
 uation described above since the passage of the Municipal Court 
 
72 NON-SERVICE — APPEAL FROM JUDGJIENT KENDEKBD. 
 
 Act, the Appellate Court would undoubtedly, in the order re- 
 versing the order denying the motion to open the default, fix a 
 day for a trial in the Court below, thus restoring the parties to 
 the same position as the Court below would have done had it at 
 first granted the motion. 
 
 Sec. 8 — Non-service of Summons — Motion to Open Default Where There 
 Are Conflicting AJHdavits as to Service. 
 
 The return of the person or officer of service of process is 
 not conclusive. Burbanks Hardware Co. v. Hinkel, 76 A. D., 
 183; s. c, 78 Supp., 365; Boynton v. Keeseville El. L. & P. Co., 5 
 Misc., 118; s. c, 25 Supp., 741; affirmed 78 Hun, 609; s. c, 28 
 Supp., 1117, and may be attacked. 
 
 The defendant should in his moving papers show by affi- 
 davits that no service of process was ever made upon him and 
 should set forth the facts and circumstances regarding the al- 
 leged service as fully as possible, an affidavit of merits should 
 also be served. 
 
 Where upon motion to open such "a default" there was a 
 conflict of evidence upon affidavits used upon the motion, the 
 Appellate Term held upon appeal, that the order denying the 
 motion should be reversed and the default opened. Monroe 
 Bank v. Lichtenstein, 96 Supp., 260. 
 
 Sec. 9 — Non-service of Summons — Appeal from Judgment Independent of 
 Motion in the Court Below. 
 
 Sec. 311 : "When and lioiv taken: 
 
 An appeal must be taken within twenty days after the entry of the 
 judgment, order or final order in the docket except that where a defend- 
 ant appeals from a judgment rendered in an action wherein he did not 
 appear and the simimons was not personally served upon him, the appeal 
 may he taken within twenty days after personal service upon him, on 
 the part of the plaintiff, of written notice of the entry of the judgment. 
 An appeal is taken by serving upon the Clerk of the Court or his suc- 
 cessor in office in the district in which the judgment, order or final order 
 was rendered, and upon the respondent, a written notice of appeal, sub- 
 scribed either by the appellant or by his attorney in the Appellate Court, 
 and paying at the same time the costs and disbursements of the action 
 to such Clerk, who shall hold the same to abide the event of such appeal 
 and the further order of the Court In the district from which the appeal 
 is taken." 
 
NON-SERVICE — PRACTICE — AFFIDAVITS ON APPEAL. 73 
 
 By the provisions of this section a defendant who has not 
 been personally served with a summons has twenty days to ap- 
 peal after the personal service upon him by the plaintiff of a 
 written notice of the entry of the judgment. 
 
 It must be remembered that this section has no application 
 to a default, as heretofore shown. When the Court has once 
 acquired jurisdiction over the person of a defendant, and he 
 fails to appear either upon the return day of the summons, or 
 upon any day to which the cause has been adjourned, his only 
 remedy is to apply for relief in the Court below under Section 
 253, supra. Sec. 1, ante. 
 
 Sec. 10 — Non-service of Summons — Practice Upon Appeal Where Slade 
 Upon Affidavits to the Appellate Court. 
 
 Appeal — Practice upon, under Section 311, Mun. Ct. Act. 
 Affidavits should be submitted to the Appellate Court, showing 
 that no service of process had ever been made upon the appel- 
 lant, and copies of such affidavits should be served upon the re- 
 spondent at least 8 days before the first day of the term. Aus- 
 ten V. Columbia Lubricants Co., 85 Supp., 362; Lazarus v. 
 Boynton, 86 Supp., 104. 
 
 Sec. 11 — Non-service of Summons — Special Appearance — Effect of. 
 
 Special Appearance docs not curtail the right to appeal. 
 The language of Section 311 of the Municipal Court Act treats 
 only of such an appearance as is equivalent to personal service, 
 and therefore has no application to a case where there has 
 been a special appearance by the defendant for the purposes 
 of a motion. Dixon v. Oarrucci, 97 Supp., 380. See also Tiffany 
 V. Lord, 65 N. Y., 310; Wheelock v. Lee, 74 N. Y., 495; s. c, 
 5 Abb. N. C, 80 ; Stephens v. Malloy, 99 Supp., 385. Notice of 
 Appearance — Waives lack of service. Wilkinson v. N. Y. City 
 By. Co., 99 Supp., 380. 
 
CHAPTER XI. 
 
 QUESTIONS REVIEWABLE ON APPEAL. 
 
 Sec. 1 — Questions that may be Sec. 4 — Exceptions ordered to be 
 raised for first time on appeal. heard In the first Instance. 
 
 Sec. 2 — Questions that cannot be Sec. 5 — Abandonment of appeal — 
 raised on appeal, unless made in Court below has power to de- 
 
 Court below. Clare appeal abandoned. 
 
 Sec. 3. — Non-suit — Appeal from Sec. 6 — Academic or abstract ques- 
 judgment of. tions. 
 
 Sec. 1 — rQuestions That May Be Raised for the First Time on Appeal. 
 
 It frequently becomes a matter of much concern to the prac- 
 titioner in preparing an appeal, to determine what questions 
 may he reviewed in the Appellate Court in the absence of a 
 proper objection and exception in the Court below. Some of the 
 most common questions which are a subject of review on appeal 
 for the first time are collated below. 
 
 Constitutionality of a statute may he urged for the first time 
 on appeal. Parsons v. Van Wyck, 56 A. D., 329 ; s. c, 67 Supp., 
 1054. 
 
 Judgment — Validity of. If the judgment is invalid for want 
 of jurisdiction, it may be determined upon appeal, even though 
 the defendant made no motion to dismiss. Eiehl v. Levy, 43 
 Misc., 59; s. c, 86 Supp., 464. 
 
 Jurisdiction of the Court — lack of over subject matter. May 
 be raised for the first time on appeal. Stuyvesant Real Estate 
 Co. V. Sherman, 40 Misc., 205 ; s. c, 81 Supp., 642 ; Cram v. Die- 
 trich, 38 Misc., 790; s. c, 78 Supp., 948; Loft v. Kaziz, 84 Supp., 
 228 ; Anhalt v. Lightstone, 39 Misc., 822 ; s. c, 81 Supp., 288 ; 
 Skinner v. Jordan, 46 Misc., 92 ; s. c, 91 Supp., 322. 
 
 Sec. 2 — Questions That Cannot Be Raised on Appeal, tJnless Made in 
 
 Court Below. 
 
 The general rule is that in order to have a question re- 
 viewed and tested on appeal, a proper objection and exception 
 
 74 
 
QUESTIONS THAT CANNOT BE '■ii'IRST RAISED ON' APPEAL. 75 
 
 must be made in the Court below, so that the adversary of the 
 person so objecting may be apprised seasonably of the objec- 
 tion made to his proof or procedure, and be enabled to cure 
 the defect, if it exists. Freedman v. Dickinson, 85 Supp., 333 
 Steinhart v. Enteen, 87 Supp., 482; s. c, 43 Misc., 388; Aus- 
 trian Bentwood Furniture Co. v. Wright, 88 Supp., 142; s. c, 
 43 Misc., 616. Having this rule in mind, a number of cases are 
 collated, showing what questions will not be reviewed in the 
 absence of a proper objection and exception in the record. 
 
 Statute of frauds — defense of. When not pleaded and evi- 
 dence of the parol contract received without objection. Grampp 
 V. DePeyster, 29 Supp., 1039; s. c, 80 Hun, 134. 
 
 Parties — question as to who are proper parties plaintiff. 
 Torrey v. Willard, 8 Supp., 392; s. c, 55 Hun, 78. 
 
 Non-joinder of parties will not he considered if not pleaded. 
 Chamberlain v. Insurance Co. of North America, 3 Supp., 701 ; 
 s. c, 20 St. Rep., 543. 
 
 Objection that the verification of the notice of Mechanic's 
 Lien is defective. Moore v. McLaughlin, 66 Hun, 133; s. c, 21 
 Supp., 55. 
 
 Chattel mortgage — defense of its invalidity because it cov- 
 ered a stock in trade in actual use in store from which mort- 
 gagor was allowed to sell, where no objection made on this 
 ground at the trial. Fi-iedman v. Eose, 31 Supp., 1040; s. c, 
 83 Hun, 542. 
 
 Replevin — Objection that it will not lie against property 
 taken under attachment — Asher v. Deyoe, 77 Hun, 531; s. c, 
 28 Supp., 890. 
 
 Replevin — Value. Objection to time when value was ascer- 
 tained cannot be raised for first time on appeal. DeBraekeleer 
 & Co. V. Schwabeland, 86 Hun, 143; s. c, 33 Supp., 212; 
 affirmed, on opinion below, 155 N. Y., 644. 
 
 Pleadings. Objection that complaint does not sufficiently 
 state a cause of action when not made by demurrer or motion 
 for dismissal at the time of trial. Hinds v. Kellogg, 13 Supp., 
 
76 QUESTIONS THAT CANNOT BE FIRST RAISED ON APPEAL. 
 
 922; s. c, 37 St. Rep., 356; affirmed, no opinion, 133 N. Y., 536; 
 S. c, 44 St. Rep., 929. 
 
 When sufficiency of answer is not raised upon the trial. 
 Martin v. Bliss, 57 Hun, 157; «. c, 10 Supp., 886; affd., 132 N. 
 Y., 551; s. e., 43 St. Rep., 965. Oondit v. Sill, 18 Supp., 97; 
 s. c, 44 St. Rep., 284; Perry v. Erie Transfer Co., 4 Misc., 598; 
 s. c, 23 Supp., 878. 
 
 That Counterclaim was not disputed hy the reply. Penny v. 
 Huebener, 2 Supp., 641; s. c, 18 St. Rep., 662. 
 
 Where complaint amended without objection. Where both 
 parties at the trial treat the question to be determined as one of 
 law only, it cannot be alleged on appeal that a question of fact 
 is involved. Templeton v. Wile, 3 Supp., 9; s. c, 18 St. Rep., 
 1012; afarmed, 3 Supp., 931; s. c, 22 St. Rep. 251. 
 
 Where no objection as to variance between pleadings and 
 proof. Tallman v. Earle, 13 Supp., 805 ; s. c, 37 St. Rep., 271 ; 
 Tannenbaum v. Armeny, 31 Supp., 55 ; s. c, 81 Hun, 581 ; May 
 V. Menton, 21 Misc., 321; s. c, 47 Supp., 179. 
 
 Evidence — Objection to admissibility of testimony not made 
 at trial; will not be heard on appeal. Davis Sewing Machine 
 Co. V. Best, 50 Hun, 76; s. c, 4 Supp., 510; Von Kamen v. Roes, 
 20 Supp., 548 ; s. c, 48 St. Rep., 920 ; affirmed, no opinion, 144 
 N. Y., 685 ; s. c, 70 St. Rep., 866. American Writing Machine 
 Co. V. Bushnell, 9 Misc., 462; s. c, 30 Supp., 228; Hawley v. 
 City of Gloversville, 4 A. D., 343 ; s. c, 38 Supp., 647. 
 
 Objection that evidence is not admissible under the plead- 
 ings. Miller v. Reynolds, 72 Hun, 482 ; s. c, 25 Supp., 642. 
 
 Incompetent or improper answer to question. Where no 
 motion made to strike out, improper answer of witness will not 
 be reviewed. Cowan v. Third Ave. R. R. Co., 9 Supp., 610; 
 s. c, 31 St. Rep., 145; affirmed, no opinion, 132 N. Y., 598; 
 s. c, 44 St. Rep., 934; Rogers v. U. S. Fidelity & Guarantee Co., 
 84 Supp., 203, at p. 206. 
 
 Failure to prove damage — cannot be raised for first time 
 upon appeal. Kenneally v. N. Y. City Ry. Co., 91 Supp., 770. 
 
 Where answer of witness to question is not objected to. 
 
_QUESTIONS THAT CANNOT BE FIRST RAISED ON APPEAL. 77 
 
 Shepard v. N. Y. Elevated Ey. Co., 15 Supp., 175 ; s. c, 39 St. 
 Kep., 430. 
 
 Exception to question which has been answered unavailing 
 where no motion to strike out answer. Van Doren.v. Jelliffe, 1 
 Misc., 354; s. c., 20 Supp., 636. Hangen v. Hachemeister, 114 
 N. Y., 566; s. c, 24 St. Eep., 526; Eogers v. U. S. Fidelity & 
 Guarantee Co., 84 Supp., 203, at p. 206. 
 
 Objection to answer of witness without motion to strike out. 
 Sternwald v. Siegel, 7 Misc., 70, at page 73 ; s. c, 27 Supp., 375. 
 
 Objection that verdict is without evidence or against weight 
 of evidence. Bennett v. Levi, 19 Supp., 226 ; s. c, 46 St. Eep., 
 754. 
 
 Non-suit, failure to move for. Concedes plaintiff's proof suf- 
 ficient to sustain the cause of action. Curtis v. Saddlery Hard- 
 ware Mfg. Co., 7 Misc., 316; s. c, 27 Supp., 901. See also 
 Hempstead v. Flagg, 7 Misc., 544; s. c, 27 Supp., 988; Eouse 
 V. Printers' Exchange Co., 12 Misc., 114; s. c, 33 Supp., 55; 
 Henry Hess & Co. v. Baar, 14 Misc., 286 ; s. c, 35 Supp., 687. 
 
 Allowing of evidence to be submitted to jury ivithout ob- 
 jection. Schaff V. Miles, 10 Misc., 395; s. c, 31 Supp. 134. 
 
 Payment — Defense of when not pleaded. McKean v. Scott, 
 84 Supp., 456. 
 
 Breach of contract. Plaintiff's failure to show his readiness 
 to pay for the goods when delivered in action for breach of con-, 
 tract to deliver goods cannot be first taken advantage of on 
 appeal. Cinque v. Cassani, 60 Supp., 92; s. c, 43 A. D., 383. 
 
 Sufficiency of answer. Thornton v. Moore, 56 Supp., 1100 ; 
 s. c, 26 Misc., 120; afiflrmed 41 App. Div., 617; s. c, 58 Supp., 
 1150. 
 
 Statute of Frauds — Objection that contract icas within. 
 Eiseman v. Heine, 2 A. D., 319 ; s. c, 37 Supp., 861 ; reversed 
 on other grounds, 158 N. Y., 45. 
 
 Defense not pleaded. Davidson v. Mexican Nat'l E. E. Co., 
 11 A. D., 28; s. c, 42 Supp., 1015. 
 
 Statute of limitations. Faburn v. Dimon, 20 A. D., 529; 
 :s. c, 47 Supp., 227. 
 
78 QUESTIONS THAT CANNOT BE FIEST RAISED ON APPEAL. 
 
 Evidence — Weight of when not reviewable. Frank V, 
 Strauss & Co. vs. Welsbach Gas Lamp Co., 42 Misc., 184 ; s. c, 
 85 Supp., 367. 
 
 Commencement of action. Objection tliat the evidence fails 
 to show that the action was commenced within the required 
 time cannot be made for the first time on appeal. Salisbury 
 V. County of Washington, 30 A. D., 187; s. c, 51 Supp., 1070. 
 
 Contributory negligence. Where in an action for personal 
 injuries defendant moves for non-suit upon the sole grounds 
 of failure to show negligence he cannot upon appeal seek a rc' 
 versal upon the ground of contributory negligence. Pfau v. 
 Alteria, 23 Misc., 693 ; s. c, 52 Supp., 88. 
 
 Premature institution of action. An appellant cannot ob- 
 ject that an action was prematurely brought where he stated 
 no such ground in his answer. Jones v. Town of Tonawanda, 
 35 A. D., 151, at p. 155 ; s. c, 55 Supp., 115 ; reversed on other 
 grounds, 158 N. Y., 438." 
 
 Infancy — Defense of. Defendant having failed to raise in 
 answer the defense that one plaintiff was an infant, such 
 defense could not be relied on in the Appellate Court. Walsh 
 V. Brooklyn Union El. E. E. Co., 69 A. D., 389 ; s. c, 74 Supp., 
 1019. 
 
 Fixtures — Removal of by mortgagee of tenant. When land- 
 lord will be estopped on appeal. Bernheimer v. Adams, 70 A. 
 D., 114; s. c, 75 Supp., 93; affirmed, no opinion, 175 N. Y., 
 472. 
 
 Action — Cause of not specifically alleged. Where a party 
 by not objecting or otherwise consents to litigate questions 
 not technically within the issues he will not on appeal be heard 
 to complain that the recovery was not upon the cause of action 
 specifically alleged. Cook & Bernheimer Co. v. Haan, 21 Misc., 
 346 ; s. c, 47 Supp., 131. In re Atwood, 3 App. Div., 578 ; s. c, 
 38 Supp., 338. 
 
 Pleadings — Construction of. The parties to an action may in 
 the conduct of a trial place a practical construction on the 
 
QUESTIONS THAT CANNOT BE FIRST RAISED ON APPEAL. 79 
 
 pleadings which should prevail on appeal. Feneran v. Singer 
 Mfg. Co., 20 A. D., 574; s. c, 47 Supp., 284. 
 
 Action — Form of. The objection that the action should have 
 been on contract, and not for deceit, will not be considered 
 if not raised and ruled on below. Campbell v. MuUer, 19 Misc., 
 189; s, c, 43 Supp., 233. 
 
 Action — Brought in wrong district. Barker v. Archer, 49 
 A. D., 80; s. c, 63 Supp., 298. 
 
 Parties — Defect of parties plaintiff. A defect of parties 
 plaintiff is waived by failure to raise the objection in the trial 
 court. Phillips v. Met. El. Ry. Co., 12 A. D., 283; s. c, 42 
 Supp., 33. 
 
 Complaint — Insufficiency of. An objection that a complaint 
 does not state a cause of action cannot be considered on appeal 
 where the complaint was not demurred to on that ground 
 L. E. Waterman Co. v. Waterman, 40 A. D., 530; s. c, 58 Supp., 
 168. 
 
 Amendment of pleadings — Propriety of cannot be ques- 
 tioned for the first time on appeal. Miller v. Fiss, 21 Misc., 
 66; s. c, 46 Supp., 967. 
 
 Witness not qualified. An objection that a witness offered 
 to prove the speed of a car, that was not qualified as an ex- 
 pert, cannot be made for the first time on appeal. Dunican 
 V. Union Ey. Co., 56 A. D., 181 ; s. c, 67 Supp., 649 ; affirmed, no 
 opinion, 171 N. Y., 692. 
 
 Dismissal of complaint — Failure to move for. Langer v. 
 Gross, 31 Misc., 266; s. c, 64 Supp., 30. Where defendant 
 did not move to dismiss the complaint at the close of the 
 whole case, or at any other stage of the trial, except for 
 want of jurisdiction, the objection that the proof failed to 
 sustain material allegation of the complaint, cannot be raised 
 on appeal. Craven v. Louisville & N. R. R. Co., 33 Misc., 789; 
 s. c, 67 Supp., 948. Franken v. McAlpin, 29 Misc., 771; s. c, 
 61 Supp., 496. 
 
 Charge to jury. A party cannot first complain on appeal 
 
80 QUESTIONS THAT CANNOT BE FIRST RAISED ON APPEAL. 
 
 of the judge's charge. Hard v. Densmore, 40 A. D., 621 ; s. c, 
 57 Supp., 1014; appeal dismissed, 160 N. Y., 665. 
 
 Proof — Defect in. Not pointed out at the trial and which 
 might liave been supplied is not available upon appeal. Raphael 
 V. Margolies, 42 Misc., 204; s. c, 85 Supp., 392. 
 
 Party — Cannot change position upon appeal. City of New 
 York V. Union Ey. Co. of N. Y., 31 Misc., 451; s. c, 64 Supp., 
 483. 
 
 Question not raised at trial cannot be upon appeal. Freed-- 
 man v. Dickinson, 85 Supp., 333 ; Steinhart v. Enteen, 43 Misc., 
 388; s. c, 87 Supp., 482. Austrian Bentwood Furniture Co. 
 V. Wright, 43 Misc., 616; s. c, 88 Supp., 142. 
 
 Assumption of a fact hy both parties will upon appeal be 
 regarded as admitted. Bull v. New Amsterdam Casualty Co., 
 85 Supp., 329. 
 
 Exception — Failure to take. When none taken, objection 
 cannot be raised upon appeal. Huck v. Bischoff, 84 Supp., 173. 
 
 Usury — Defense of. When not pleaded cannot be raised 
 upon appeal for the first time. Orvis v. Curtiss, 12 Misc., 434 ; 
 s. c, 33 Supp., 589 ; reversed, 157 N. Y., 657, on other grounds. 
 
 Dismissal — Judgment of hy request on consent of appel- 
 lant. A judgment of dismissal rendered at the request of or 
 by consent of the plaintiff is not appealable by him. Bacon v. 
 Abbey Press, 43 Misc., 345; s. c, 87 Supp., 165. 
 
 Defense — Not pleaded. Not available upon appeal. Mc- 
 Kean v. Scott, 84 Supp., 456. 
 
 Exception general. Under a general exception in a record 
 following the verdict of a jury the aggrieved party is not en- 
 titled to have the action of the court in refusing to give an 
 instruction asked, reviewed on appeal. Marquis v. Wood, 30 
 Misc., 770; s. c, 62 Supp., 525. 
 
 Notice of protest — Insufficiency of. It cannot be urged for 
 the first time on appeal by defendant endorsers in an action on 
 a note, that as there was no proof of the contents of the notice 
 of protest, the giving of sufficient notice was not shown, Ra- 
 phael V. Margolies, 42 Misc., 204 ; s. c, 85 Supp., 392. 
 
QUESTIONS THAT CANNOT BE RAISED — NON-SUIT. 81 
 
 Proof of authority of agent — Failure to take objection to 
 sufficiency of proof. On an action on a written contract it is 
 too late to object for the first time on appeal to the sufficiency 
 of the evidence to show the agency of the person, contracting 
 in behalf of appellant, or to show that the contract was induced 
 by the agent's misrepresentations as to its contents. Franli V. 
 Strauss & Co. v. Welsbach Gas Lamp Co., 42 Misc., 184; s. c, 
 85 Supp., 367, 
 
 Objection to irregularity or sufficiency must he made in 
 Court below. Peabody v. Long Acre Sq. Bldg. Co., 47 Misc., 
 629; s. c, 94 Supp., at 507 and 508 (afPd. Appel. Div., Apr. 7, 
 1906). 
 
 Counterclaim. Where it was not suggested at the trial that 
 a counterclaim was not allowable that question "cannot be raised 
 on appeal. Freedman v. Dickinson, 85 Supp., 333. 
 
 Summary proceeding — Notice under Sec. 2236, Code of Civil 
 Pro. Failure to serve cannot be raised for first time on appeal. 
 Cutting V. Burns, 57 A. D., 185; s. c, 68 Supp., 269. 
 
 Sec. 3 — Non-suit — ^Appeal from. 
 
 From what appeal taken. The appeal must be taken from 
 the judgment and not from an order dismissing the complaint. 
 Met. El. Ey. Co. v. Johnston, 84 Hun, 83; s. c, 32 Supp., 49; 
 ( affirmed, no opinion, 158 N. Y., 739 ) . The remedy is by appeal 
 from the judgment which must be entered. Citron v. Bayley, 
 36 A. D., 130; s. c, 55 Supp., 382; Kromback v. Penn. Steel Co., 
 84 Supp., 297. 
 
 Inference on appeal from judgment of non-suit. The rule 
 as to an appeal from judgment of non-suit is tersely stated in 
 Benjamin v. Metropolitan St. Ey. Co., 84 Supp., 458 : "Where 
 non-suit is granted at close of the plaintiff's case, plaintiff on 
 appeal is entitled to every fact that the jury could have found 
 from her evidence, and to all the favorable inferences there- 
 from; and if two inferences arise, one favorable and the other 
 unfavorable, only the favorable one can be considered." See 
 also Smith v. N. Y. C. & H. E. E. E. Co., 177 N. Y., 224; Dorff 
 
82 EXCEPTIONS IN FIRST INSTANCE — APPEAL ABANDONED. 
 
 V. Brooklyn Hts. K. R. Co., 95 A. D., 82; s. c, 88 Supp., 463; 
 Kohl V. Met. St. Ry. Co., 32 Misc., 765; s, c, 66 Supp., 482; 
 Schaefer v. Central Crosstown R. R. Co., 30 Misc., 114; s. c.^ 
 61 Supp., 806. 
 
 Sec. 4 — ^Exceptions Ordered to Be Beard in the First Instance. 
 
 No power to hear. The Appellate Term has no power to en- 
 tertain a motion for a new trial on exceptions ordered by 
 the City Court to be heard by it in the first instance. Dick- 
 son V. Manhattan Ry. Co., 45 Misc., 572 ; s. c, 91 Supp., 36. 
 
 Sec. 5 — Abandonment of Appeal — Court Below Has Power to Declare 
 
 Appeal Abandoned. 
 
 Appeal — Abandonment of. Court of original jurisdiction 
 has power to declare , a case on appeal abandoned for non- 
 compliance with practice. Levy v. Fidelity & Deposit Co., 8T 
 Supp., 487. Abandonment of appeal not the same as declar- 
 ing appeal dismissed (Id.), but see True v. Sibley, 29 Supp.^ 
 704; s. c, 61 St. Rep., 200. 
 
 Order declaring appeal abandoned not reviewable on ap- 
 peal. Fromme v. Poerschke, 95 Supp., 525. 
 
 Remedy when appeal is declared abandoned. It is the duty" 
 of the appellant to move to be relieved from the order or pro- 
 ceed to have the appeal heard upon the judgment roll alone,, 
 in default of which the appeal will be dismissed. Heins v- 
 Manhattan Ry. Co., 8 Misc., 686 ; s. c, 28 Supp., 780 ; True v. 
 Sibley, 29 Supp., 704; s. c, 61 St. Rep., 200. 
 
 Sec. 6 — ^Academic or Abstract Questions of Law. 
 
 Academic questions. Where the question sought to be re- 
 viewed is academic, it will not be reviewed, but the appeal 
 will be dismissed. Stein v. Kesselgrub, 45 Misc., 652 ; s. c, 91 
 Supp., 64. 
 
 Abstract questions of law will not he determined. McComb 
 T. Title Guar. & Trust Co., 36 Misc., 370; s. c, 73 Supp., 554; 
 affirmed, 70 A. D., 618; s. c, 75 Supp., 1128. 
 
CHAPTER XII. 
 
 AMENDMENT AND MODIFICATION. ON 
 
 APPEAL. 
 
 Sec. 1 — Notice of appeal — Service Sec. 5 — Parties — Amendment and 
 
 and amendment of. substitution of: 
 
 Sec. 2 — Failure to perfect appeal ( 1 ) Parties succeeding to In- 
 
 — How perfected. terest of appellant or 
 
 Sec. 3 — Pleadings — Amendment of, respondent. 
 
 In appellate court. (2) Death of appellant or 
 
 Sec. 4 — Modification of judgment respondent. 
 
 or order on appeal. 
 
 Sec. 1 — Notice of Appeal — Service and Amendment of. 
 
 An appeal from a City Court judgment or order is taken by 
 filing within the statutory time (see Sec. 3190, C. C. P.) a 
 notice of appeal with the Clerk of the City Court and also serv- 
 ing, within the same time, a like notice upon the attorney for 
 the adverse party, which notice must be to the effect that the 
 appellant appeals from the judgment or order or from a speci- 
 fied part thereof (see Sec. 1300, C. C. P.). 
 
 If the appeal is from a Municipal Court judgment or order 
 the notice of appeal must be filed with the Clerk of the Court 
 and also served upon the respondent, and at the same time pay- 
 ing into court the costs and disbursements of the action (see 
 Sec. 311, Municipal Court Act). See Glass vs. Harg, 40 A. D., 
 557. 
 
 Mode of Service — Service of the notice of appeal must be 
 made upon both the Clerk of the Court and upon the respondent. 
 Morris vs. Morange, 26 How. Pr., 247. 
 
 Service of — when time begins to run, — Dobyne vs. Commer- 
 cial Trust Co., 98 Supp., 748. 
 
 Service — failure of. — Where a party has seasonably served 
 the notice of appeal either upon the clerk or the adverse party, 
 but has excusably failed to serve it upon the other, or to do any 
 other act necessary to perfect the appeal, he may be relieved 
 
 83 
 
84 NOTICE OF APPEAL — FORM OF AMENDMENT. 
 
 therefrom under Sec. 1303, Code Civ. Pro., or under Sec. 313 of 
 the Mun. Ct. Act (see Sec. 2, p, 44, ante; also Sec. 2, p. 85, 
 post). 
 
 Inaccuracy in a notice of appeal violating no rule of practice 
 and immaterial will not avoid it. Folker vs. N. Y., W. S. & B. 
 R. R. Co., 100 N. Y., 86. 
 
 Notice of Appeal — sufficient "to the Supreme Court of the 
 State of New Yorlc" though containing no reference to the Ap- 
 pellate Division. Morris vs. Hunken, 40 A. D., 129. 
 
 Extension of time to appeal. — The time within which to take 
 an appeal cannot be extended by the Court by amendment or 
 otherwise. Sec. 784, Code Civ. Pro. ; Humphrey vs. Chamber- 
 lain, 11 N. Y., 274; Whitney vs. Townsend, 7 Hun, 233; Clapp 
 vs. Hawley, 97 N. Y., 610; Durant vs. Abendroth, 8 Civ. Pro., 
 87, excepting in the case of the death of person entitled to ap- 
 peal before the expiration of time within which to appeal ( Sec. 
 785, Code Civil Pro.) ; but the time in which to appeal may be 
 extended by consent of the parties. Bagley vs. Jennings, 58 
 Hun, 56 ; s. c, 11 Supp., 386. 
 
 Appeal — time — how limited. — New Eochelle Gas & Fuel Co. 
 vs. Benschattin, 47 A. D., 477. 
 
 Defects in Notice of Appeal — waiver. — If no objection to 
 the defect is seasonably made, it is deemed waived. Hill vs. 
 Burke, 62 N. Y., Ill ; Thierny vs. Crawford, 33 Hun, 366. 
 
 When Amendment Allowed. 
 
 Correcting the notice of appeal liy striking out the word 
 "order" and inserting that the appeal is from "judgment." — 
 Kent vs. Sibley, 5 Supp., 448; affd. 8 Supp., 956. 
 
 Correcting notice hy striking out subscription "of counsel" 
 and substituting the word "attorney." — Seaman vs. McRey- 
 nolds, 40 N. Y. Superior Ct. Rep., 545. 
 
 Informal notice of appeal. — If appeal is taken within statu- 
 tory time, an amendment to make it formally regular may be 
 ordered nunc pro tunc. Sherman vs. Wells, 14 How. Pr., 522, 
 at p. 526. 
 
NOTICE OF APPEAL — AMENDMENT WHEN NOT ALLOWED. 85 
 
 Notice of appeal from Municipal Court hi/ strildng out "to 
 the Appellate Division" and inserting "Appellate Term" in lieu 
 thereof. — Clapp vs. Sternglonz, 23 Mis., 641 ; s. c, 52 Supp., 156. 
 
 By correcting the title of the action erroncoushj stated in the 
 notice of appeal. — McLochlin vs. Brett, 27 Hun, 18. 
 
 When Aniendment Not Allowed. 
 
 Verbal notice is nullity and cannot be amended. People vs. 
 Eldridge, 7 How. Pr. Eep., 108. 
 
 To include order or judgment not contained in the original 
 notice. — Fry vs. Bennet, 16 How. Pr., 385. 
 
 By including a statement that an interlocutory judgment 
 rendered icill 6e brought up for review. — Patterson vs. McCann, 
 38 Hun, 531, citing Lavalle vs. Skelly, 90 N. Y., 546, at p. 548; 
 Clapp vs. Hawley, 97 N. Y., 610 ; Piper vs. Van Buren, 27 Hun, 
 384. 
 
 Subscription — when not made either by appellant or attor- 
 ney, in Appellate Court. — Necker vs. Nardi, 99 Supp., 381. 
 
 By inserting a recital that appeal is from order and judg- 
 ment, where the original notice contained no reference to the 
 order and the time to appeal from which had expired — but 
 merely recited that the appeal was from the judgment. Piper 
 vs. Van Buren, 27 Hun, 384. 
 
 Sec. 2 — Failure to Perfect Appeal by Service Upon All Necessary Parties. 
 
 It has been stated in the preceding section that where there 
 has been failure of service upon either the clerk or the adverse 
 party through excusable neglect or omission but one or the 
 other has been seasonably served, that application for relief 
 may be made under Section 1303 of the Code of Civil Pro., and 
 Section 313, Mun. Ct. Act. These sections read as follows : 
 
 Sec. 1303, Code Civ. Pro. : 
 
 Where the appellant seasonably and in good faith serves the notice 
 of appeal, either upon the clerk or upon the adverse party, or his at- 
 torney, but omits through mistake, inadvertence, or excusable neglect 
 
86 FAILURE TO PERFECT APPEAL — BELIEF GRANTED OR REFUSED. 
 
 to serve it upon the other, or to do any other act necessary to perfect 
 the appeal, or to stay the execution of the judgment or order appealed 
 from, the court in or to which the appeal is taken, upon proof by affidavit, 
 of the facts, may, in its discretion, permit the omission to be supplied 
 or an amendment made upon such lines as justice requires. 
 
 Sec. 313, Mun. Ct. Act: 
 
 Where the appellant seasonably and in good faith serves the notice 
 of appeal upon either the clerk or the respondent, but omits, through 
 mistake, inadvertence, or excusable neglect, to serve upon the other, or 
 to do any other act necessary to perfect the appeal, the appellate court, 
 upon proof by affidavit, of the facts, may, in its discretion, permit the 
 omission to be supplied or an amendment to be made upon such terms 
 as justice requires. 
 
 When BeUef May Be Had. 
 
 Service made on Clerh, hut failure to make proper service 
 on adverse party. — Chaplin vs. Du Bois, 1 Supp., 150; s. c, 48 
 Hun, 620 ; s. c, 15 St. Eep., 963. 
 
 When ReUef May Not Be Had. 
 
 Where service has not heen made on the Clerk, nor any of 
 the parties, within the statutory time. — Durant vs. Abendroth, 
 8 Civ. Pro., 87; Livingston vs. N. Y. El. R. Co., 58 Hun, 131, at 
 p. 133; s. c, 11 Supp., 359; affd., 125 N. Y., 695. 
 
 Omission to subscribe notice of appeal. — The lack of sub- 
 scription by the attorney for the appellant in the Appellate 
 Court cannot be supplied under Section 1303 of the Code. 
 Necker vs. Nardi, 99 Supp., 381. 
 
 Case — failure to serve does not come within this section and 
 relief cannot be had under it. Odell vs. McGrath, 16 A. D., 
 103; s. c, 45 Supp., 119. 
 
 Court in which application must be made. — If the appeal is 
 from a judgment or order of the City Court, the application 
 may be made either in that Court or in the Supreme Court (Ap- 
 pellate Term) . Sec. 1303, C. C. P. If the appeal is from a judg- 
 ment or order of the Municipal Court the application must be 
 made in the Appellate Court (Appellate Term). Sec. 313, 
 Mun. Ct. Act. (See Chap. V, page 43.) 
 
PLEADINGS — ^AMENDMENT OF ON APPEAL. 8T 
 
 Requisites of Application. 
 
 Papers upon which the application is founded. — The appel- 
 lant must excuse his neglect, or inadvertence by affidavit. Sec. 
 1303, C. C. P., and Sec. 313, Mun. Ct. Act. 
 
 Sec. 3 — Amendment of Pleadings on Appeal. 
 
 The general rule is that where the Trial Court has power 
 to amend the complaint or answer to conform to the proof, 
 especially where evidence adduced was not objected to upon the 
 ground that it was inadmissible under the pleadings, the court 
 on appeal will either amend the pleading or treat it as having 
 been amended in the court below. Smith vs. Wetmore, 41 A. D., 
 290; Harris vs. Trunbridge, 83 N. Y., 92; Drexel vs. Pease, 
 37 St. Eep., 166 ; Pratt vs. Hudson River R. R. Co., 21 N. Y, 
 505; but where the amendment would involve substituting 
 & cause of action or defense different from the one set forth in 
 the pleading it will not be amended. Southwick vs. First Natl. 
 Bank of Memphis, 84 N. Y., 420 ; revg. 20 Hun, 349 ; Fitch vs. 
 llayor, 88 N. Y., 500; nor where the pleader's attention was 
 called to the defect in the court below and he failed there to 
 ask for amendment but elected to proceed without it. Gill vs. 
 Aetna Live Stock Ins. Co., 82 Hun, 363 ; s. c, 31 Supp., 495. 
 
 Amendment — When Allowed. 
 
 Amendment of pleadings on appeal to conform to judg- 
 ment. — Where evidence which might have been excluded as 
 not within the pleadings is admitted without objection the 
 pleadings may, upon appeal, be made to conform to the proof. 
 Listman vs. Hickey, 65 Hun, 8; s. c, 19 Supp., 880; affd., 143 
 IST. Y., 630; Reeder vs. Sayre, 70 N. Y., 180. 
 
 Complaint may he amended or treated as having heen 
 ■amended in the court helow when not introducing new form 
 of action. Smith vs. Wetmore, 41 A. D., 290 ; Harris vs. Trun- 
 bridge, 83 N. Y., 92. 
 
88 id; amendment disallowed — modification on appeal. 
 
 Pleading may be in the Appellate Term to conform to the 
 proof where no substantial right of the party is affected thereby, 
 yan Orden et al. vs. Morris, 19 Misc., 497; s. c, 43 Supp., 1168; 
 Keim vs. Bklyn. Hts. R. R. Go., 94 Supp., 636. 
 
 Answer — amendment which could have been allowed in. the 
 court below will be treated as amended in the appellate court 
 if tlie facts found support the judgment. Donai vs. Lutjens, 
 21 A. D., 254; s. c, 47 Supp., 659. 
 
 When Not Amended. 
 
 Where plaintiff's attention is called to the defect at the trial 
 and he fails to apply for amendment and elects to stand on the 
 sufficiency of his pleading. Gill vs. Aetna Live Stock Ins. Go.^ 
 82 Hun, 363 ; s. c, 31 Supp., 485. 
 
 When amendm\ent will result in changing cause of action. — 
 Riker vs. Gurtis, 10> Misc., 125 ; s. c, 30 Supp., 940 ; Horndorf 
 vs. Atwater, 75 Hun, 369; s. c, 27 Supp., 447; Southwick vs. 
 First Natl. Bank, 84 N. Y., 420; revg. 20 Hun, 349. 
 
 Sec. 4 — Modification of Judgment or Order. 
 
 Judgment — modification of, by directing its proper form. — 
 The Appellate Term will, upon appeal, modify a judgment from 
 Municipal Gourt by striking therefrom "upon the merits" where 
 the form of the judgment should have been without prejudice 
 to new action. Soltz vs. Newmark, 84 Supp., 283. 
 
 Final order in summary proceedings. — By striking out pro- 
 vision for money judgment. Bennet vs. Wick, 29 Misc., 632^ 
 at p. 633 ; s. c, 61 Supp., 106. 
 
 Final order in summary proceedings upon reversal cannot 
 be modified by directing restitution — It must be sought by 
 motion. Boyd vs. Malone, 24 Misc., 734 ; s. c, 53 Supp., 785. 
 
 Order setting aside verdict and granting new trial by making 
 provision for the payment of costs as condition of granting 
 order, where no costs have been awarded. Gohen vs. Sofranski^ 
 95 Supp., 524. 
 
MODIFICATION OF JUDGMENT^ ETC. — PARTIES SUBSTITUTION OF. 89 
 
 Erroneous judgment — modification or reversal is in the dis- 
 cretion of the appellate court. In re Transfer Penalty Case, 
 92 Supp., 322. 
 
 Increasing amount of recovery. — The Appellate Term may, 
 upon appeal, modify the judgment by increasing the amount of 
 the recovery. Ayward vs. Powers, 25 Misc., 476; s. c, Levy vs. 
 Hohenwasner, 102 A. D., 82 ; Kemp vs. Tonnele Co., 99 Supp., 
 885. 
 
 Arrest — may insert clause in judgment authorizing arrest. 
 — Ostrom vs. Sapolinsky, 96 Supp., 1070. 
 
 Judgment — amendment or modification of. — Motion to 
 amend Municipal Court judgment when made too late. Lissner 
 vs. Dochterman, 97 Supp., 230. 
 
 Sec. 5. — Parties — Amendment and Substitution of. 
 (1) Parties Succeeding to Interest of Appellant or Respondent. 
 
 The general rule is that a person who is not a party to the 
 proceeding cannot bring or maintain an appeal. People vs. 
 Sanborn, 46 A. D., 630; s. c, 61 Supp., 529. 
 
 Parties to appeal defined and designation of. — See Section 
 1295 of the Code of Civil Procedure, which reads as follows : 
 
 Sec. 1295 — Parties to appeal ; how designated ; title of cause : 
 
 The party or person appealing is designated as the appellant, and 
 the adverse party as the respondent. After an appeal is taken to another 
 court, the name of the appellate court must be substituted for that of 
 the court below, in the title of the action or special proceeding, and in 
 any case, the name of the county, if it is mentioned, may be omitted, 
 otherwise the title shall not be changed, in consequence of the appeal. 
 
 Provision is made by Section 1296 of Code of Civil Pro- 
 cedure for the substitution of the person who has succeeded to 
 the interest of the person entitled to be appellant, and to make 
 such person a party to the appeal and to permit him to be- 
 come the appellant and prosecute the appeal ; that section reads 
 as follows : 
 
 Sec. 1296 — When a person entitled to become a party may 
 appeal : 
 
 A person aggrieved, who is not a party, but is entitled by law to 
 be substituted, in place of a party; or who has acquired, since the making 
 
90 PARTIES — ^AMENDMENT AND SUBSTITUTION OF. 
 
 of the order, or the rendering of the Judgment appealed from, an inter- 
 ■est, which would have entitled him to be so substituted, if it had been 
 previously acquired, may also appeal as prescribed in this chapter, for 
 an appeal by a party. But the appeal cannot be heard, until he has been 
 substituted in place of the party; and if he unreasonably neglects to 
 procure an order of substitution, the appeal may be dismissed upon 
 motion of the respondent. 
 
 Proceedings upon transfer of interest. — Provision is made 
 by Section 756 of the Code of Civil Procedure for tlie continu- 
 ance of the action by or against the original party where there 
 has been a transfer of interest or devolution of liability. That 
 section reads as follows : 
 
 Sec. 756 — Proceedings upon transfer of interest or devolu- 
 tion of liability : 
 
 In case of a transfer of interest, or devolution of liability, the action 
 may be continued, by or against the original party; unless the Court 
 directs the person, to whom the interest is transferred, or upon whom, 
 the liability is devolved, to be substituted in the action, or joined with 
 the original party, as the case requires. 
 
 Assignment of judgment pending appeal. — The assignee may 
 continue appeal in the name of the original plaintiff. Burt vs. 
 Lustig, 60 Supr. Ct., 181; s. c, 17 Supp., 362; affd., 137 N. Y., 
 •538. 
 
 Parties succeeding to interest of deceased plaintiff may he 
 substituted. — McLochlin vs. Brett, 27 Hun, 18; s. c, 2 Civ. 
 Pro., 194. 
 
 Costs on assigned judgment — reversed on appeal. — The as- 
 signee will be charged with the costs of the action and of the 
 appeal unless the judgment attempted to be assigned has been 
 recovered upon a cause of action not itself assignable. Tucker 
 vs. Gilman, 58 Hun, 167; s. c, 11 Supp., 555; affd., 125 N. Y., 
 714. 
 
 (2) Death of Appellant or Respondent. 
 
 Death of appellant.— Section 785 of the Code of Civil Proced- 
 ure regulates the right of the personal representatives or heirs 
 or devisees of a deceased party, who has died before the expira- 
 tion of the time to appeal has expired, and limits the time in 
 
DEATH OF APPELLANT PENDING APPEAL. 91 
 
 ivhich the appeal may be taken to a period of within four 
 months after the death occurred. That section reads as follows : 
 Sec. 785 — Qnalification of the last section {i. e., 785 — When 
 time cannot be extended) : 
 
 Where a party entitled to appeal from a judgment or order* or to 
 move to set aside a final judgment for error in fact, dies either before 
 •or after this chapter takes effect, and before the expiration of the time 
 within which the appeal may be taken, or the motion made, the Court 
 may allow the appeal to be taken, or the motion to be made, by the heir, 
 devisee, or personal representative of the decedent, at any time within 
 iour months after his death. 
 
 Similar provision is made on appeal from Municipal Court 
 hy Section 320 of the Mun. Ct. Act, which reads as follows : 
 Sec. 320 — ^Appeal when adverse party has died : 
 
 Where the adverse party has died, since the making of the order, or 
 -the rendering of the judgment appealed from, or where the judgmnt ap- 
 pealed from was rendered, after his death, in a case prescribed by law, 
 an appeal may be taken, as if he was living; but it cannot be heard, until 
 "the heir, devisee, executor or administrator, as the case requires has been 
 substituted as the respondent or the appellant. In such a case an under- 
 taking required to perfect the appeal, or to stay the execution of the judg- 
 ment or order appealed from, must recite the fact of the adverse party's 
 -death, and the undertaking enures, after substitution to the benefit of the 
 person substituted. 
 
 Proceedings When Appellant Dies Pending Appeal. 
 
 Failure to enter order of substitution, etc. — By Section 1298 
 of the Code of Civil Procedure, the proceedings to be taken 
 -when either party dies before the appeal is heard or has here- 
 tofore died and the appeal has not been heard are regulated, 
 and reads as follows : 
 
 Sec. 1298 (Am'd, 1877) — Proceedings when party dies pend- 
 ing appeal : 
 
 Where either party dies before the appeal Is heard, or has hereto- 
 fore died, and the appeal has not been heard, if an order substituting 
 another person in his place, is not made within three months after his 
 death, or, where he has heretofore died, within three months after this 
 section takes effect, the Court in which the appeal is pending, may, in its 
 discretion make an order, requiring all persons interested in the deced- 
 -ent's estate, to show cause before it, why the judgment or order appealed 
 from should not be reversed or affirmed, or the appeal dismissed, as the 
 -c^e requires. The order must specify, when cause is to be shown, which 
 must not be less than six months after making the order; and it must 
 ■designate the mode of giving notice to the persons interested upon the 
 
92 DEATH OF PAETY PENDING APPEAL. 
 
 return day of the order, or at a subsequent day, appointed by the Court, 
 if the proper person has not been substituted, the. Court, upon proof, by 
 affidavit, that notice has been given, as required by the order, may re- 
 verse or affirm the judgment or appealed from, or dismiss the appeal, or 
 make such further order in the premises, as the case requires. 
 
 And when the appeal is from the Municipal Court similar 
 provision is made by Section 321 of the Mun. Ct. Act, which 
 reads as follows: 
 
 Sec. 321 — Proceedings when party dies pending appeal: 
 
 Where either party to an appeal dies before the appeal is heard, if 
 an order substituting another person in his place, is not made within 
 three months after his death, the Court in which the appeal is pending, 
 may, in its discretion, make an order requiring all persons interested in 
 the decedent's estate, to show cause before it why the judgment or order 
 appealed from should not be reversed or affirmed or the appeal dismissed, 
 as the case requires. The order must specify a day when cause is to be 
 shown, which must not be less than six months after making the order; 
 and it must designate the mode of giving notice to the persons inter- 
 ested. Upon the return day of the order, or upon a subsequent day, 
 appointed by the Court, if the proper person has not been substituted, 
 the Court upon proof by affidavit, that notice has been given, as required 
 by the order, may reverse or affirm the judgment or order appealed from, 
 or dismiss the appeal, or make such further order in the premises as the 
 case requires. 
 
 Order of substitution must he entered before appeal can be 
 heard. — Campbell vs. Friedlander, 51 A. D., 191 ; s. c, 64 Supp., 
 241. 
 
 Administratrix may be substituted for deceased plaintiff 
 upon appeal from judgment of non-suit to prosecute the appeal 
 to relieve the estate from the liability for costs; even though), 
 the cause of action does not survive to her but is abated. 
 Campbell vs. Gallagher, 18 Civ. Pro. E., 90; 9 Supp., 432. 
 But this may not be done where no judgment for costs has been 
 entered. Lutz vs. Third Ave. R. R. Co., 44' A. D., 256 ; s. c, 
 60 Supp., 761. 
 
 Death of all plaintiffs in an action may be revived and title 
 of notice of appeal amended accordingly. McLochlin vs. Brett, 
 27 Hun, 18; s. c, 2 Civ. Pro., 194. 
 
 Death of lunatic pending appeal — order may be amended 
 by inserting date prior to his death; even though order ma^e 
 and served after his death. In re Beckwith, 87 N. Y., 503. 
 
DEATH OF PARTY — ORDER OP SUBSTITUTION. 93 
 
 Death of appellant — action may he revived in the name of 
 the appellant's assignee for benefit of creditors. — Eiley vs. Git- 
 terman, 10 Supp., 38. 
 
 One of several devisees may he substituted, where testator 
 dies pending appeal from judgment in favor of defendant. — 
 Van Home vs. France, 32 Hun, 504. 
 
 Foreign executor may not appeal until substituted by order 
 under Section 1296 of the Code. — Philipe vs. Levy, 56 Superior 
 Ct, 606 ; s. c, 3 Supp., 664. 
 
 Administratrix may not be substituted to prosecute appeal 
 from judgment of non-suit rendered against deceased plaintiff ; 
 talien before his death on an action for personal injuries, where 
 no judgment for costs has been entered. Lutz vs. Third. Ave. 
 R. R. Co., 44 A. D., 256; s. c, 60 Supp., 761. 
 
 Order of Substitution — To What Court Application Made. 
 
 Order of substitution must be made upon application to ap- 
 2icUate court. — Ross vs. Wigg, 10.0 N. Y., 243, at p. 247. This is 
 provided for by Section 1299 of the Code of Civil Procedure, 
 which reads as follows : 
 
 Sec. 1299 — Order of substitution : 
 
 Where the appeal is from one Court to another, an application for 
 an order of substitution, as prescribed by the last three sections, must 
 be made to the Appellate Court. Where personal service of notice of 
 application for an order has been made within the State, upon the proper 
 representative of the decedent, an order of sul^titution may be made, 
 upon the application of the surviving party. (See Campbell vs. Fried- 
 lander, 51 A. D., 191; s. c, 64 Supp., 241.) 
 
 And where the appeal is from Municipal Court similar pro- 
 vision is made by Section 322 of the Mun. Ot. Act, which reads 
 as follows: 
 
 Sec. 322 — Order of substitution : 
 
 Where personal service of notice of application for an order has 
 been made, -within the city, upon the proper representative of the deced-' 
 ent, an order of substitution may be made upon the application of the 
 surviving party. (See Campbell vs. Friedlander, 51 A. D., 191; s. c, 64 
 Supp., 241.) 
 
94 DEATH OF RESPONDENT — PENDING APPEAL. 
 
 Death of respondent. — Section 1297 of the Code of Civil 
 Procedure provides for tlie right to appeal by the heir, devisee^ 
 executor or administrator where the adverse party has died 
 since the making of the order or the rendition of the judgment 
 appealed from, or where the judgment appealed from was ren- 
 dered after the death of the adverse party, and further provides 
 that the appeal cannot be heard until there has been an order 
 entered substituting the heir, devisee, administrator or execu- 
 tor, as the case may be, as respondent (see Campbell vs. Fried- 
 lander, 51 A. D., 191; s. c, 64 Supp., 241). That section reads 
 as follows: 
 
 Section 1297 — Appeal when adverse party has died: 
 
 Where the adverse party has died, since the making of the order, or 
 the rendering of the judgment appealed from, or where the judgment 
 appealed from was rendered, after his death, in a case prescribed by law, 
 an appeal may be taken, as if he was living; but it cannot be heard, until 
 the heir, devisee, executor or administrator, as the case requires, has. 
 been substituted as the respondent. In such a case, an undertaking re- 
 quired to perfect the appeal, or to stay the execution of the judgment or 
 order appealed from, must recite the fact of the adverse party's death; and 
 the undertaking enures, after substitution to the benefit of the person, 
 substituted. 
 
 Where the appeal is from the Municipal Court similar pro- 
 vision is made by Section 320 of the Mun. Ct. Act — which reads, 
 as follows: 
 
 Sec. 320 — Appeal where adverse party has died : 
 
 Where the adverse party has died, since the making of the order, or 
 the rendering of the judgment appealed from, or where the judgment 
 appealed from was rendered, after his death, in a case prescribed by law, 
 an appeal may be taken, as if he was living, but it cannot be heard until 
 the heir, devisee, executor or administrator as the case requires has been 
 substituted as the respondent or appellant. In such a case an undertak- 
 ing required to perfect the appeal, or to stay the execution of the judg- 
 ment or order appealed from must recite the fact of the adverse party's 
 death; and the undertaking enures, after substitution to the benefit of 
 the party substituted. 
 
 For proceedings upon application for suhstitiition, the Court 
 to which application is made and the order for substitution, see 
 Sections 1298 and 1299 of the Code of Civil Procedure (see p. 
 91 and 93, ante). 
 
CHAPTER XIII. 
 
 REQUISITES FOR REVIEWING QUESTIONS 
 
 OF FACT AND LAW. ESTOPPEL AND 
 
 WAIVER OF RIGHT TO APPEAL. 
 
 Sec. 1 — Certificate as to evidence. Sec. 7 — ^Void judgment. 
 
 Sec. 2 — Requisites for reviewing Sec. 8 — Judgment of dismissal 
 
 questions of fact (jury entered at appellant's 
 
 trial). request. 
 
 Sec. 3 — Requisites for reviewing Sec. 9 — Objection taken without 
 
 questions of law only stating grounds, 
 
 (jury trial). Sec. 10 — Record — Matters not ap- 
 
 Sec. 4 — Requisites for reviewing pearing in. 
 
 questions of fact and Sec. 11 — Compliance with judg- 
 
 law — Trial by Court or ment or order and ac- 
 
 referee. ceptance of benefits. 
 
 Sec. 5 — ^Direction of verdict — Sec. 1^ — Payment of judgment 
 
 both, parties moving for. pending appeal. 
 
 Sec. 6 — Motion for dismissal or 
 non-suit — absence of. 
 
 Sec. 1 — Certificate as to Evidence. 
 
 Some confusion has arisen among practitioners as to the 
 rule requiring a certificate as to the completeness of the evi- 
 dence in the case of an appeal from a judgment, in order to 
 obtain a review of questions of fact by the Appellate Term. 
 Some of the most important decisions upon this question are 
 given below and will tend to make the rule clear. 
 
 Trial hy Court or Referee. Where the trial is before a. 
 Judge or Eeferee, questions of fact cannot be reviewed upon 
 appeal in the absence of a statement that the case upon appeal 
 contains all the evidence given upon the trial. Porter vs. Smithy 
 107 N. Y., 531; Goodrich vs. Giles, 62 Hun, 479; 17 Supp., 88; 
 Grant vs. Lawrence, 79 Hun, 565; 29 Supp., 901; West vs. 
 Wright, 86 Hun, 436; 33 Supp., 898; Martin vs. Moore, 3 A. D., 
 416; s. c, 38 Supp., 652. 
 
 Certificate — 'Necessity for. The necessity for such certifi- 
 cate arises from the fact that in its absence there is no notice 
 to the respondent that the appellant wishes to review any ques- 
 
 95 
 
96 CERTIFICATE AS TO EVIDENCE. 
 
 tion except questions of law which the exceptions taken during 
 the trial, and filed after the decision, raise. Porter vs. Smith, 
 107 N. Y., 531. 
 
 Certificate — A'bsence of. In the absence of such certificate 
 it will be presumed that there was additional evidence given on 
 the trial sufficient to establish all questions of fact in favor of 
 the respondent. Howland vs. Rowland, 20 Hun, 472. This 
 view was ruled against in Cox vs. James, 45 N. Y., 557, but 
 later in Perkins vs. Hill, 56 N. Y., 87-91, was adopted and see 
 the rule as finally settled in Halpin vs. Phenix Ins. Co., 118 
 N. Y., 165; Gorham Mfg. Co. vs. Seale, 3 A. D., 515. 
 
 Certificate — Wli en unnecessary. Such certificate is unneces- 
 sary to review a finding of the Court on the ground that it is 
 without evidence to support it, that being a question of law. 
 Halpin vs. Phoenix Ins. Co., 118 N. Y., 165 ; Brayton vs. Sher- 
 man, 119 N. Y., 623. 
 
 Certificate — Effect of. If the case is certified to contain all 
 the evidence, questions of fact are open to review upon appeal 
 although no exceptions to the findings of the Court or referee 
 have been filed. Walls vs. Hempstead Board of Education, 9 
 A. D., 143; 41 Supp., 141. As to decision under Sec. 1022 of the 
 Code Civil Pro., see Nat. Pro. Assn. vs. Cumings, 53 A. D., 227 ; 
 65 Supp., 946, and Clements vs. Beale, 53 A. D., 416 ; 65 Supp., 
 1093. 
 
 Certificate — Upon appeals from judgment on verdict. On 
 appeal from a judgment entered on a verdict, it is assumed that 
 the case contains all the evidence on any question raised by any 
 exception appearing in the case and a certificate of the complete- 
 ness of the evidence is unnecessary. Kosenstein vs. Fox, 150 
 N. Y., 354. 
 
 Review of question of law only. Where the appellant seeks 
 to review a question of law only no certificate on the com- 
 pleteness of evidence is necessary. Zimmerman vs. Man. Ey. 
 Co., 3 A. D., 219 ; 38 Supp., 362 ; Hewitt vs. Town of Thurman, 
 41 A. D., 6 ; 58 Supp., 83. 
 
CERTIFICATE AS TO EVIDENCE. 97 
 
 Notice to respondent. A motion for a new trial and an 
 appeal from an order denying such motion is notice to the 
 respondent that the appellant will seek to review question of 
 fact. Hunt vs. Webber, 22 A. D., 631 ; 48 Supp., 24. 
 
 Certificate — Review of facts. A certificate that a case on 
 appeal contains all the evidence is not necessary and serves no 
 purpose when there was a jury trial and is proper only where 
 the trial was had before a Judge or referee. Gibson vs. Met. St. 
 Ky. Co., 31 Misc., 391 ; 64 Supp., 396. 
 
 Review of exception to ruling of Court in directing ver- 
 dict. Certificate not necessary. Brown vs. James, 2 A. D., 
 105; s. c, 37 Supp., 529. 
 
 Certificate — Form of. A statement that the case contains 
 "all the testimony" is not equivalent to a statement that it con- 
 tains all the "evidence." Green vs. Malcolm, 83 Hun, 9; 31 
 Supp., 612; Keohler vs. Hughes, 73 Hun, 167; 25 Supp., 1061; 
 Randall vs. N. Y. El. R. Co., 76 Hun, 427; 27 gjpp., 1062; Zim- 
 merman vs. Man. Ry. Co., 38 Supp., 362. See Hallenbeck vs. 
 Smith, 51 A. D., 344 ; 64 Supp., 957. For other forms see Guivin 
 vs. Mundy, 45 St. Rep., 667 ; 18 Supp., 445 ; Oaksmith vs. Baird, 
 19 A. D., 334; 46 Supp., 262; Becker vs. Fisher, 13 A. D., 555; 
 43 Supp., 685 ; Hannon vs. Gallagher, 19 Misc., 347 ; 43 Supp., 
 492. Also see Dictum in Dibble vs. Dominick, 143 N. Y., 549- 
 555. 
 
 Affidavit of attorney — Not sufficient. Gorham Mfg. Co. vs. 
 
 Seale,.3 A. D., 515; 38 Supp., 307. 
 
 ^ Amendment of case by inserting certificate. See Remick 
 
 I vs. N. Y. El. R. Co., 13 Supp., 600; Martin vs. Adams, 73 Hun, 
 
 122; 25 Supp., 1020; Bernard vs. Gantz, 69 Hun, 104; 23 Supp., 
 
 260; Martin vs. Baust, 23 A. D., 234; 48 Supp., 989. 
 
 Sec. 2 — ^Requisites for Reviewing Questions of Fact upon Appeal. 
 
 Motion for a new trial and order denying it. To bring up 
 a case for review upon the facts upon a jiidgment entered upon 
 the verdict of a jury, there must be a motion made in the Court 
 
 7 
 
98 REQUISITES TO EEVIEW QUESTIONS OF FACT, 
 
 below for a new trial and an order denying the same, and it is 
 only where there is an appeal from both the judgment and order 
 that all of the facts in the case or the weight of the evidence 
 may be reviewed. Davis vs. Mills, 22 Supp., 339 ; Whitney vs. 
 Town of Ticonderoga, 53 Hun, 214; 6 Supp., 844 (affd., 12T 
 N. Y., 40) ; Prager vs. Schaphaus, 99 Supp., 840; Matthews vs. 
 Myberry, 63 N. Y., 656; Passey vs. Craighead, 89 Hun, 76; 
 35 Supp., 36; Stevens vs. Schroeder, 40 A. D., 590; 58 Supp., 52. 
 The exception to the foregoing rule is that the order denying a 
 motion for a new trial may be reviewed as an intermediate 
 order when such order has been entered prior to the entry of 
 the judgment. Ziesloft vs. Blackburne Co., 45 Misc, 595 ; Taylor 
 vs. Smith, 164 N. Y., 399. 
 
 The notice of appeal in such a case must, however, states 
 that such order will be brought up for review, id. 
 
 Failure to except to denial of motion. Snelling vs. Yetler, 
 25 A. D., 590; 49 Supp., 917 (appeal dismissed, 163 N. Y., 601). 
 
 Grounds must be stated in order. Where that is omitted, 
 the Appellate Court is not at liberty to consider the weight of 
 the evidence or to review the facts except so far as necessary to 
 pass upon the exceptions. Koehler vs. N. Y. Steam Co., 71 A. D., 
 222-224; s. c, 75 Supp., 597. 
 
 Failure to enter order denying motion. Recital in notice 
 of appeal that the appeal is from an order denying motion for 
 new trial, is insufficient to review the facts even though the 
 record shows that a motion for a new trial was made upon the 
 judge's minutes and denied and there is an exception to that 
 ruling. The facts can only be revie\\'ed upon an appeal from 
 an order denying a motion for a new trial, and to give the Court 
 jurisdiction to hear such an appeal the order denying the mo- 
 tion must be duly entered. Passey vs. Craighead, 89 Hun, 76. 
 
 Sec. 3 — Requisites for Reviewing Questions of Law Only. 
 
 The preceding section is intended to indicate what the ap- 
 pellant should do in order to review both questions of law and 
 fact ; it is equally important for the practitioner to be apprised 
 
REQUISITES TO REVIEW QUESTIONS OF LAW. 99 
 
 of the manner in which questions of law may be raised and re- 
 viewed. 
 
 An appeal from a judgment only, entered upon a verdict 
 brings up for review solely the exceptions taken at the trial. 
 Molineux vs. Clapp, 99 A. D., 543; s. c, 90 Supp., 880; Ten 
 Eyck vs. Whitbeck, 55 A. D., 165 at p. 168 ; Boyle vs. Williams, 
 1 Misc., 112 ; s. c, 9 Supp., 534. 
 
 An appeal from an order denying motion for a new trial 
 only brings up for review solely exceptions taken at the trial. 
 Prager vs. Schiffhaus, 99 Supp., 840. 
 
 Appeal from order denying motion for new trial may he 
 taken separately and independently of the appeal from the 
 judgment. Howe vs. Noyes, 95 Supp., 542. This case is illus- 
 trative of the fact that the successful party should be prompt in 
 taking measures to limit the time of his adversary in which 
 to take an appeal. 
 
 Appeal on Judgment Roll. 
 
 The appellant may appeal on the judgment roll alone, and 
 if any fatal error appears on that record, he would be entitled 
 to a reversal of the judgment appealed from. Brush vs. Blot, 
 42 Supp., 761. 
 
 Appeal Upon Bill of Exceptions. 
 
 Provision is made by Eule 34 of the General Rules of Prac- 
 tice as to what the bill of exceptions should contain and provides 
 what is necessary to present the questions of law upon which 
 exceptions were taken at the trial. See Sec. 997 of the Code of 
 Civil Pro. ; Hubbard vs. Chapman, 28 A. D., 577 ; s, c, 51 Supp., 
 207; Delaney vs. Valentine, 11 A. D., 316; s. c, 42 Supp., 571. 
 
 Sec. 4 — ^Requisites for Reviewing Questions of Fact and Law — Trial by 
 
 Court or Referee. 
 
 Distinction hetween an appeal from judgment entered upon 
 a verdict and upon a judgment entered upon the finding of a 
 Court or Referee. There is a marked distinction between the 
 
100 TRIAL BY COURT — REVIEW — REQUISITES FOR. 
 
 method of appeal upon a judgment entered upon the verdict 
 of a jury and a judgment entered upon a trial had before a 
 Court without a jury or before a referee. As to the former see 
 Third Ave. E. K. Co. vs. Ebling, 100 N. Y., 98; and as to the 
 latter, Eumsey's Practice (2d Ed.), Vol. 2, p. 470. 
 
 Findiugs by the Court or Keferee, 
 
 In order to hare a proper judgment and certainly to have 
 a proper record upon which an appeal may be based there must 
 be findings of facts and conclusions of law signed by the judge 
 or referee who tried the issues and these must be filed (Elect. 
 Boat Co. vs. Harvey, 96 A. D., 410) all of which is provided 
 for by Sec. 1022 of the Code of Civil Procedure, a section which 
 has been the subject of recent and likewise frequent amend- 
 ment. That section reads as follows : 
 
 Sec. 1022. [Am'd, 1877, 1894, 1895, 1903.] Id. ; upon the 
 trial of the whole issue of fact : 
 
 The decision of the Court or the report of a referee upon the trial 
 of the whole issues of fact, must state separately the facts found and the 
 conclusions of law, and direct the judgment to be entered thereon, which 
 decision so filed shall form part of the judgment roll. * * * 
 
 And there must also be exceptions filed to the findings of 
 the Court or referee. This is provided for by Section 994 of 
 the Code of Civil Procedure. That section reads as follows : 
 
 Sec. 994. — When and how exceptions may be taken after 
 close of trial by Court or referee: 
 
 Where an issue of fact Is tried by a referee or by the Court ■with- 
 out a jury, an exception to a ruling, upon a question of law, made after 
 the cause is finally submitted, must be taken, by filing a notice of the 
 exception in the clerk's office and serving a copy thereof upon the attor- 
 ney for the adverse party. The exception may be so taken, at any time 
 before the expiration of ten days after service, upon the attorney for 
 the exceptant, of a copy of the decision of the Court, or report of the 
 referee and a written notice of the entry of the judgment thereupon. 
 If the notice of exception is filed before the entry of final- judgment, it 
 must be inserted in the judgment roll; if afterwards, it must be an- 
 nexed to the judgment roll. In either case it constitutes a part of the 
 papers, upon which an appeal from the judgment must be heard. 
 
 Failure to file exceptions under Sec. 1022, C. C. P., pre- 
 cludes review of any question of law or of fact. Forgottson 
 
FINDINGS — EXCEPTIONS — DIKECTION OF VERDICT; REVIEW. 101 
 
 VS. Brafman, 84 Supp., 237; Frederick vs. City of Johnstown, 
 47 A. D., 221; s. c, 62 Supp., 66; but see also Henderson vs. 
 Doughtteuy, 95 A. D., 346; Clements vs. Beale, 53 A. D., 416; 
 Kister vs. Pain, 41 A. D., 443-444; 58 Supp., 865. 
 
 General exception to a finding is insufficient. A general 
 exception is not suflftcient if any part of the finding is good. 
 Simms vs. Voght, 99 N. Y., 654. 
 
 General exception to the entire findings or to each and 
 every finding is insufficient. Ledoux vs. Grand Trunk Ry. Co., 
 61 N. Y., 613 ; Ward vs. Craig, 550 ; Drake vs. N. Y. Iron Mine 
 Co., 156 N. Y., 90. But where there is only one conclusion of 
 law which is bad a general exception is sufficient. Eckerson 
 vs. City of New York, 80 A. D., 12 (aff'd, 176 N. Y., 609). 
 
 Where there is a certificate that the case contains all the 
 evidence given on the trial it is not necessary that there should 
 be exceptions filed to the findings of fact made by the Court. 
 Watts vs. Board of Education, 9 A, D., 143. 
 
 Exceptions need not he filed to review questions of law 
 raised by the exceptions taken during the trial under Sees. 995 
 and 996 of the Code of Civil Pro. ; Clements vs. Beale, 53 A. D., 
 416. 
 
 Failure to file exceptions — Relief against failure to file 
 exceptions may be had by motion in the Court below to file the 
 same nunc pro tunc. Stiefel vs. N. Y. Novelty Co., 12 A. D., 
 266; s. c, 42 Supp., 511, and the Court has power to suspend 
 the decision on appeal to permit the motion to be made in the 
 Court below. 
 
 Sec. 5 — Direction of Verdict — Both Parties Moving for. 
 
 Where either party desire a direction of a verdict in his 
 favor a motion therefor is made to the Court the opposing 
 party has an equal right to the same motion and hence it is 
 of frequent occurrence that both parties move for the same 
 relief. When this occurs it has been held it amounts to a sub- 
 mission of the whole case to the Trial Judge and his decision 
 
102 NON-SUIT — ABSENCE OF MOTION FOK — EFFECT OF. 
 
 upon the facts has the same effect as if the jury had found 
 a verdict in favor of the successful party (Adam vs. Eoscoe 
 Lumber Co., 159 N. Y., 180) ; so that if after the motion is 
 made either party desires to have the whole case or any issue 
 of fact passed upon by the jury he must seasonably withdraw 
 his motion for a direction and request to be permitted to go to 
 the jury. 
 
 When hoth parties move for a direction it is too late to re- 
 quest permission to go to the jury after the judge has announced 
 his decision and the clerk enters it. Persons vs. Hawkins, 41 
 A. D., 171 ; s. c, 58 Supp., 831 ; Howell vs. Wright, 122 N. Y., 
 667; Adams vs. Eoscoe Lumber Co., 159 N. Y., 180; Za Zic vs. 
 Elian, 98 Supp., 652; but see Stirn vs. Hoffman House Co., 8 
 Misc., 246, at p. 248. 
 
 Sec. 6 — Motion for Dismissal or Non-Suit — Absence of. 
 
 Where it is sought to test the sufficiency of the evidence, 
 adduced in support of the cause of action, there is some con- 
 flict as to whether there can be a review of either the weight of 
 the evidence or the sufficiency thereof unless there is a motion 
 in the court below at the end of plaintiflf's case for a dismissal 
 or non-suit, with a proper exception taken to the denial of the 
 motion ; and likewise a renewal of the motion at the close of the 
 case and a like exception to its denial; but whatever conflict 
 there may be upon this point it seems that such a motion must 
 be made either at the end of plaintiff's case or at the close of 
 the whole case. See Eusher vs. Brennan, 29 Misc., 142 ; s. c, 60 
 Supp., 283 ; Speiss vs. Weinberg, 27 Misc., 774 ; s. c, 57 Supp., 
 761 ; Langer vs. Gross, 31 Misc., 266 ; s. c, 64 Supp., 30 ; Craven 
 vs. Louisville & N. E. Co., 33 Misc., 789 ; s. c, 67 Supp., 948 ; 
 Helmuth vs. Apgar, 17 Misc., 623; s. c, 40 Supp., 651; Kafka 
 vs. Levensohn, 18 Misc., 202; s. c, 41 Supp., 368; Brown vs. 
 Levy, 34 Misc., 812 ; s. c, 68 Supp., 941. 
 
 Effect of failure to move for non-suit or direction of a ver- 
 iJift. Where there is no certificate that the record contains all 
 
VOID JUDGMENT — JUDGMENT OF DISMISSAL. 103 
 
 the evidence, the legal effect of the omission of the defendant at 
 the close of the testimony to move either for a dismissal of the 
 complaint or the direction of a verdict in his favor is to consent 
 to the submission of the case to the jury and a concession on 
 his part that there was a question for the jury. Pollock vs. 
 Penn. Iron Works Co., 157 N. Y., 699; Hopkins vs. Clark, 158 
 N. Y., 299; Brown vs. Levy, 34 Misc., 812; s. c, 68 Supp., 941; 
 and the Court will review only the exceptions taken to the rul- 
 ings made upon the trial. Brown vs. Levy {supra). 
 
 On appeal from the Municipal Court. The defendant is 
 bound by the specific objection in the motion made to dismiss 
 and only such defects in the evidence as are pointed out upon 
 the motion are subject to review. Coffee vs. Phillips, 21 Misc., 
 €63, at p. 665 ; s. c, 47 Supp., 1105 ; Kafka vs. Levensohn, 18 
 Misc., 202. 
 
 Sec. 7 — ^Void Judgment. 
 
 Though a judgment is void, the judgment is sufficient to 
 support an appeal from it taken for the purpose of reviewing 
 and reversing it. Catlin vs. Bundle, 1 A. D., 157 ; s. c, 37 Supp., 
 S79; Wand vs. Eobarge, 24 Misc., 273; s. c, 53 Supp., 700. 
 
 Void judgment of Municipal Court may be considered in 
 existence for the purpose of permitting the Appellate Term to 
 reverse it. Loeb vs. Smith, 24 Misc., 200; s. c, 52 Supp., 677. 
 
 Sec. 8 — Judgment of Dismissal Entered at Appellant's Request. 
 
 Where a judgment is entered at appellant's request dismiss- 
 ing the complaint no appeal will lie from the judgment of dismis- 
 sal. Alleva vs. Hagerty, 32 Misc., 711 ; s. c, 65 Supp., 690. 
 
 Sec. 9 — Objection Taken Without Stating Grounds. 
 
 Objections not a/vailahle unless grounds are stated. 
 Wicherow vs. Slayback, 158 N. Y., 649, at 662; Wallace vs. 
 Vacum Oil Co., 128 N. Y., 579 ; Marston vs. Gould, 69 N. Y., 220- 
 228; Ackley vs. Welch, 85 Hun, 178. 
 
104 MATTERS teXTKINSIC TO RECOED SUPPORTING JUDGMENT. 
 
 Objection — Evidence excluded under — Ruling upheld. 
 When evidence is excluded under a mere general objection, the 
 ruling will be upheld upon appeal if any ground existed for 
 its exclusion. Tooley vs. Bacon, 70 N. Y., 34. 
 
 Objection — General — Application. A general objection ap- 
 plies to the competency or materiality of the evidence and not 
 to competency of the witness. Stevens vs. Brennan, 79 N. Y., 
 254-259. 
 
 Sec. 10— Record — Matters not Appearing in. 
 
 The general rule that the Court is bound by the record 
 presented on the appeal is subject to the qualification that the 
 Court may permit matters of record to be supplied to support 
 the judgment. O'Day vs. Hupfel Bwg. Co., 30 Misc., 460 ; Dun- 
 ford vs. Weaver, 84 N. Y., 445; Munoz vs. Wilson, 111 N. Y., 
 299 ; Dunham vs. Townshend, 118 N. Y., 281 ; In re Transfer 
 Case, 92 Supp., 324. 
 
 Omission to introduce record evidence of incorporation of 
 an alleged corporation may be supplied on appeal in order to 
 support the judgment below. O'Day vs. Hupfel, Bwg. Co., 30 
 Misc., 460. 
 
 Court may take judicial notice of records before it in other 
 cases for the purpose of supporting a judgment. In re Trans- 
 fer Penalty Cases, 92 Supp., 322, at p. 324. 
 
 Letter from Justice presented after appeal had been argued 
 v,nd submitted, correcting or amplifying a statement in the 
 record will not be considered. Eontenberg vs. Schweitzer, 29 
 Misc., 653 ; s. c, 61 Supp., 84. 
 
 Res adjudicata — Claim that former Judgment is. Will not 
 be considered unless the judgment in the former action between 
 the parties or a copy thereof appears in the record. Orvis vs. 
 Curtis, 11 Misc., 418. 
 
 Affidavits — Attached to brief not considered. Guase vs. 
 Sterling Piano Co., 95 A. D., 115. 
 
COMPLIANCE WITH JUDGMENT OR ORDER — PAYMENT — EFFECT. 105 
 
 Sec. 11 — Compliance With Judgment or Order and Acceptance of 
 
 Benefits. 
 
 Compliance with terms of order is acquiescence and no ap- 
 peal will lie. Nat'l Savings Bank vs. Slade, 17 A. D., 115 ; s. c.^ 
 44 Supp., 934. 
 
 Acceptance of costs granted under order bars right to ap- 
 peal. Wood vs. Richardson, 91 Hun, 332 ; s. c, 36 Supp., 1001. 
 
 Acceptance of terms or benefits under order bars right to 
 appeal. Logeling vs. N. Y. El. K. Oo., 38 Supp., 1112; s. c, 5 
 A. D., 198. 
 
 Plaintiff collecting portion of judgment is estopped from 
 objecting to or appealing from it. Hess vs. Smith, 16 Misc., 55 ; 
 s. c, 37 Supp., 635 ; but see New Eochelle Gas & Fuel Co. vs. 
 Van Benschoten, 47 A. D., 477; s. c, 62 Supp., 398; Mormet 
 vs. Merz, 60 Superior Ct., 256; s. c, 17 Supp., 380 (afE'd, 131 
 N. Y., 646). 
 
 Sec. IS— Payment of Judgment Pending Appeal. 
 
 Effect of payment of judgment during the pendency of the 
 appeal. It may be that the defeated party does not seek to 
 stay the execution of the judgment, or does not desire it to 
 stand upon the record unsatisfied during the pendency of the 
 appeal, and if for these or any other reasons he pays the judg- 
 ment he does not preclude himself from the right to appeal. 
 Penny vs. Woodbury, 17 Supp., 530 ; s. c, 44 N. Y. State Rep., 
 287 ; Empire Hardware Co. vs. Young, 27 Misc., 226 ; Hayes vs. 
 Nourse, 107 N. Y., 577. See Wood vs. Hall, 107 A. D., 628. 
 
 Satisfaction of judgment of record does not preclude the 
 right to appeal. McEvitt vs. Maass, 64 A. D., 382; s. c, 72 
 Supp., 158. 
 
CHAPTER XIV. 
 
 COSTS. 
 
 Sec. 1 — Costs absolute upon an ap- Sec. 7 — Costs absolute upon an ap- 
 peal from a judgment of the peal from judgment or order of 
 City Court, where judgment is Municipal Court, 
 affirmed or reversed. Sec. 8 — Discretionary costs upon 
 
 Sec. 2 — Discretionary costs. Municipal Court judgment or or- 
 
 Sec. 3 — Costs to abide the event. „ ^^r. 
 
 _ . „ , , ,1 4. 4. Sec. 9 — Costs upon motions. 
 
 v.-7~t^°^ 1° ^PP^"^*^* *° Sec. 10— Amount of costs upon an 
 
 abide the event. appeal from a judgment or order 
 
 Sec. 5 — Without costs. of the City Court. 
 
 Sec. 6 — Costs upon an appeal from Sec. 11 — Amount of costs upon an 
 
 an interlocutory judgment or appeal from a judgment or order 
 
 order of the City Court. of the Municipal Court. 
 
 Sec. 1 — Costs Absolute upon Appeal from Judgment of City Court when 
 Judgment is Affirmed or Reversed. 
 
 The costs upon appeals from judgments of the City Oourt 
 are provided for in Section 3238 of the Code of Civil Procedure, 
 which reads as follows : 
 
 §3238. Costs upon appeal from final judgment. 
 
 Upon an appeal from the final judgment in an action, the recovery 
 of costs is regulated as follows: 
 
 1. In an action specified in section 3228 of this act, the respondent 
 is entitled to costs upon the affirmance, and the appellant upon the re- 
 versal, of the judgment appealed from; except that, where a new trial 
 is directed, costs may be awarded to either party, absolutely or to abide 
 the event, in the discretion of the court. 
 
 2. In every other action, and also where the final judgment appealed 
 from is affirmed in part, and reversed in part, costs may be awarded in 
 like manner, in the discretion of the court. 
 
 Under Subdivision 1 of this section the Appellate Court has 
 no discretion in regard to costs upon an absolute reversal or af- 
 firmance of a judgment upon appeal. 
 
 If the judgment is reversed, the appellant, and if the judg- 
 ment is afi&rmed, the respondent, has an absolute right to costs. 
 McMoran vs. Lange, 25 A. D., 11; s. c, 48 Supp., 1000; Hahn 
 vs. Van Doren, 1 E. D. Smith, 411; Katz vs. Diamond, 16 
 Misc., 577; s. c, 38 Supp., 766; Faruolo vs. Eafanelli, 
 
 106 
 
COSTS — ABSOLUTE — COSTS — DISCRETIONARY. 107 
 
 84 Supp., 549; Wood vs. Brown, 6 Daly, 428; Chapin ts. 
 Churchill, 12 How. Pr., 367; Clark vs. Carroll, 61 How. Pr., 47; 
 Eisler vs. Union Transfer & S. Co., 16 Daly, 456 ; s. c, 12 Supp., 
 732. 
 
 Where the plaintiff appeals from a judgment dismissing his 
 complaint and there has been no appearance by the defendant 
 on the trial or on the appeal, the reversal or affirmance must 
 be without costs as there is no respondent. DeLamater vs. 
 Carman, 2 Daly, 182 ; see also Lewis vs. Hosey, 26 Misc., 789 ; s. 
 c, 56 Supp., 200. 
 
 Where, however, a new trial is granted, costs may be award- 
 ed to either party absolutely or to abide the event. 
 
 Sec. 2 — Discretionary Costs. 
 
 Under Subdivision 2, Section 3238 of the Code of Civil Pro., 
 it is provided when costs may, in the discretion of the Court, 
 be imposed, and below are digested some of the cases coming 
 under this section showing in what, cases costs have been 
 granted or refused thereunder. 
 
 Unless either parti/ succeeds wholly upon an appeal, costs 
 are not allowed to either party. Starr Cash Car Co. vs. Rein- 
 hardt, 6 Misc., 365, 368; s. c, 26 Supp., 746. 
 
 Where neither party is correct in practice, no costs will 6e 
 granted. Maneely vs. Mayers, 43 Misc., 380, 384; s. c, 87 
 Supp., 471. 
 
 Separate appeals. Lesster vs. Lawyers' Surety Co., 30 Misc., 
 771; s. c, 62 Supp., 479, reversed, 50 A. D., 181; s. c, 63 Supp., 
 804, upon oither grounds. 
 
 Costs — When same mil he refused on appeal. Willis vs. 
 Parker, 30 Misc., 750; s. c, 62 Supp., 1078. 
 
 Appeals heard together. Lesster vs. Lawyers' Surety Co., 
 supra. 
 
 Costs — When both parties appeal and judgment is affirmed, 
 costs will he awarded to each with a provision for an off -set. 
 Martin vs. Tarbox, 23 Misc., 761; s. c, 51 Supp., 319. 
 
108 COSTS — DISCRETIONARY. 
 
 Costs — When respondent entitled to. Harris vs. Osnowitz, 
 35 A. D., 594; s. c, 55 Supp., 172. 
 
 Judgment — Modification of — When respondent entitled to 
 costs. Zimmerman vs. L. I. K. R, Co., 14 A. D., 562; s. c, 43 
 Supp., 883. 
 
 Term fees, not allowable on appeal. Mayer vs. Friedman, 30 
 Misc., 364 ; s. c, 62 Supp., 452. 
 
 Costs, on plaintiff's failure to appear. Engberman vs. North 
 German Lloyd S. S. Co., 84 Supp., 199. 
 
 When costs to several defendants will he allowed. A de- 
 fendant not united in interest with other defendants and ap- 
 pearing by a separate attorney will usually be allowed costs 
 in case of success, without regard to whether the other defend- 
 ants succeed or not. Forrest v. Thompson, 8 St. Rep., 345; 
 Lane v. Van Orden, 63 How. Pr., 237 ; s. c, 11 Abb. N. C, 228 ; 
 D. L. & W. R. R. Co., V. Burkard, 40 Hun, 625; s. c, 2 St. Rep., 
 184 ; Wolf V. Di Lorenzo, 22 Misc., 323 ; s. c, 49 Supp., 191. 
 
 WJien costs to several defendants will not be allowed.. 
 Under the Code of Civil Procedure, Sec. 3229 providing that 
 in an action against more than one defendant, plaintiff being 
 entitled to costs against one, none of the defendants are entitled 
 to costs of course where plaintiff is entitled to costs of course 
 against one defendant, another defendant, who has judgment, 
 though granted an extra allowance, is not entitled to costs, he 
 not having specifically asked therefor or had them allowed. 
 Union Bank of Brooklyn vs. Case, 84 Supp., 551. 
 
 Appearance — Right to costs depends upon. Wilbur vs. Wilt- 
 sey, 13 How. Pr., 506. 
 
 When not alloioed to separate defendoAits who appear for 
 the purpose of making costs. Royce v. Jones, 23 Hun, 452; 
 Lindslay v. Deafendorf, 43 How. Pr., 90. 
 
 When attorneys for separate defendants are partners. 
 Crofts V. Rockefeller, 6 How. Pr., 9; Brockway v. Jewett, 16 
 Barb., 590. 
 
 When attorney is cleric for the other attorney. Perry v. 
 Livingston, 6 How. Pr., 404. 
 
COSTS TO ABIDE EVENT. 109 
 
 When all defendants unite in one appeal. Von Keller v. 
 Schulting, 45 How. Pr., 139. 
 
 Sec. 3 — Costs to Abide the Event. 
 
 The decisions as to the meaning of the phrase, where a 
 judgment is reversed "with costs to abide the event" have not 
 been uniform in the Courts of this State. Some hold that it 
 means that the party ultimately successful may tax all the costs 
 up to thattime. Miller vs. King, 32 A. D., 349; s. c, 52 Supp., 
 1041; Union Trust Co. vs. Whiton, 78 N. Y., 491; First Nat'l 
 Bank vs. Fourth Nat'l Bank, 84 N. Y., 469 ; s. c, 60 How. Pr., 
 436 ; Loring vs. Morrison, 25 A. D., 139 ; s. c, 48 Supp., 975 ; Van 
 Bussum vs. Met. Life Ins. Co., 16 Misc., 40 ; s. c, 37 Supp., 665 ; 
 Franey vs. Smith, 126 N.. Y., 658; s. c, 37 St. Eep., 480; others 
 holding that as the appeal was caused by the error of the re- 
 spondent he could not profit by his own mistake. Sheridan vs. 
 Genet, 1 Civ. Pro., 309, Note ; Abendroth vs. Durant, 9 Civ. Pro., 
 446, reversed 13 Civ. Pro., 434 ; s. c, 48 Hun, 16, this interpre- 
 tation seems to have been given by the Court in construing its 
 own orders, practically holding that those words really meant 
 costs to the appellant, to abide the event. See also Loring vs. 
 Morrison, 5 N. Y. Ann. Cases, 151; s. c, 48 Supp., 975; Smith 
 vs. Smith, 5 N. Y. Ann. Cases, 47, 48, Note; s. c, 22 App. 
 Div., 319. The true meaning, however, seems to be that where 
 costs are given '^to abide the event," the successful party may 
 tax the costs of the appeal as well as the other costs in the 
 action. 
 
 Sec. 4 — Costs to Appellant to Abide the Event. 
 
 Where these terms are used in the reversal of a judgment if 
 the appellant succeeds upon the new trial, he is entitled to the 
 costs of the trial and the costs of the appeal. Franey vs. 
 Smith, 126 N. Y., 658; Starr Cash Car Co. vs. Eeinhardt, 6 
 Mis., 365; s. c, 26 Supp., 746. 
 
 Where the respondent succeeds after neio trial ordered 
 ^'fditn costs to appellant to abide the event" he may not tax the 
 
110 WITHOUT COSTS — COSTS ON INTERLOCUTORY JUDGMENT. 
 
 costs of the appeal, for these costs are intended for the ap- 
 pellant if he succeeds upon the new trial. Elliot vs. Luengene, 
 19 Mis., 428; s. c, 43 Sijpp., 1140; Starr Cash Car Co. vs. 
 Eeinhardt, 6 Mis., 365; «. c, 26 Supp., 746; Cochran vs. Gott- 
 wold, 42 N. Y. Supr. Ct, 214 ; but see Buet vs. Gerraty, 31 Mis., 
 22; s. c, 62 Supp., 1125; Bell vs. Amer. Cent. Ins. Co., 33 A. 
 D., 239. 
 
 Sec. 5 — ^Without Costs. 
 
 The words "without costs" in an order of reversal mean ithe 
 costs of the appeal. In such a case all the costs can be taxed 
 by the successful party except the costs in the Appellate Term. 
 Sander vs. N. Y. & Harlem R. R. Co., 56 A. D., 273; s, c, 67 
 Supp., 809. 
 
 (For several of the foregoing definitions and some of the 
 citations referring to them we are indebted to Milliman. on 
 Costs.) 
 
 Sec. 6 — Costs upon Appeal from Interlocutory Judgment or Order of the 
 
 City Court. 
 
 §3239. Id.; upon appeal from interlocutory judgments or 
 order of the City Court. 
 
 Upon an appeal from an interlocutory judgment or an order in an 
 action, costs are in the discretion of the court, and may be awarded 
 absolutely, or to abide the event, except. as follows: 
 
 1. Where the appeal is taken from an order, granting or refusing 
 a new trial, and the decision upon the appeal refuses a new trial, the 
 respondent is entitled, of course, to the costs of the appeal. 
 
 2. When an appeal is taken from an order, refusing a new trial, 
 and an appeal is also taken from the judgment rendered upon the trial, 
 neither party is entitled to the costs of the appeal from the order. 
 
 The discretion of the Court, upon an appeal from an inter- 
 locutory judgment or order may be exercised under the pro- 
 visions of this section, except in the cases specified in subdivi- 
 sions one and two. 
 
 Under Subdiv. 1, Sec. 3239, C. C. P., costs are not in the dis- 
 cretion of the Court where it affirms an order denying a motion 
 for a new trial. The respondent is entitled absolutely to such 
 costs. 
 
COSTS — MUNICIPAL COURT JUDGMENT OR ORDER. Ill 
 
 Order affirmed Kith costs. Where an order is affirmed with 
 costs and the party to whom they are allowed is afterwards de- 
 feated in the trial these costs must he deducted from the costs 
 of the p-arty finally successful. Stevenson vs. Pusch, 40 How. 
 Pr., 91. 
 
 Costs under Suhdiv: 2, Sec. 3239, G. G. P., cannot be taxed 
 upon an appeal from an order denying a motion for a new trial 
 when an appeal is taken from the judgment rendered upon the 
 trial. Van Alen vs. Am. Nat. Bank, 10 Abb. Pr. N. S., 331; 
 Syms vs. Mayor, etc., 105 N. Y., 153; s. c, 6 St. Eep., 830. 
 
 An appeal from a judgment and also from an order denying 
 a motion for a new trial upon the ground of newly discovered 
 evidence is not within the provisions of Sec. 3239, Subdivision 2, 
 and costs upon each appeal may be allowed. Streep vs. Mc- 
 Loughlin, 36 Misc., 165; s. c, 72 Supp., 1061. 
 
 Appeal from judgment and from order separately. 
 If the appeal from a judgment is heard and decided, and 
 later a separate appeal is taken from the order denying a new 
 trial, costs upon both appeals may be allowed. Keeler vs. Bar- 
 retts, P. & H. Dyeing Establishment, 12 Civ. Pro., 121 ; s. c, 18 
 Abb. N. C, 459. 
 
 Gosts upon appeal from interlocutory judgment. See Camp- 
 bell vs. Hallihan, 46 Misc., 409; s. c, 92 Supp., 413. 
 
 Sec. 7 — Costs Absolute upon an Appeal from Judgment or Order of" 
 
 Municipal Court. 
 
 The right to costs upon appeals from the Municipal Court 
 
 to the Appellate Term are regulated by Sec. 345. 
 
 Sec. 345. Costs upon appeal to whom. 
 
 Upon an appeal provided for in this act, the award of costs Is regu- 
 lated as follows: 
 
 1. If the appeal is dismissed because neither party brings it to a 
 hearing as prescribed by law, costs shall not be awarded to either party. 
 
 2. If the judgment or final order Is reversed costs must be awarded 
 to the appellant. 
 
 3. If the judgment or final order is affirmed, costs must be awarded 
 to the respondent. 
 
 4. If the judgment or final order is modified, or a new trial is 
 ordered, costs of such part thereof, as to the Appellate Court seems just 
 besides disbursements, may be awarded to either party absolutely or to 
 abide the event. 
 
112 COSTS — MUNICIPAL COtJKT JUDGMENT OR ORDER. 
 
 // the appeal he dismissed because neither party brings it to 
 a hearing as prescribed by law, costs shall not be awarded to 
 cither party. This subdivision (i. e., 1) has reference 
 to dismissals provided for by Sec. 325 of this Act, 
 which authorizes the Appellate Court to dismiss the ap- 
 peal if neither party brings it to a hearing before the time of the 
 second term after which it might have been noticed for hearing 
 and heard. In such a case, neither party is entitled to costs as 
 against the other. 
 
 Absolute reversal or affirmance of judgment. Costs in such 
 ■cases are provided for by Subdivisions 2 and 3, and they pro- 
 vide that upon either an absolute reversal or affirmance of a 
 judgment, full costs must be granted and the Court has no dis- 
 cretion. See cases cited under Sec. 1, page 106, ante. 
 
 Stipulation by respondent in the Court below to allow a re- 
 versal icithout costs not available upon appeal. Faruolo vs. 
 Eafanelli, 84 Supp., 549. 
 
 Respondent may be relieved of payment of but $5 costs by 
 Sec. 325, Mun. Ct. Act, 
 
 Costs upon an appeal from an order of the Municipal Court 
 are as from a judgment. Colwell vs. Devlin, 20 Misc., 616 ; s. c, 
 46 Supp., 450. 
 
 Costs — Upon an appeal from an order of the Municipal 
 Court full costs will be allowed. Benton vs. Moss, 47 Misc., 
 376 ; s. c, 93 Supp., 1113. 
 
 Final order in Summary Proceedings — Costs upon. Costs 
 upon appeal from a final order in Summary Proceedings are 
 governed by the provisions of Sec. 2250 of the Code of Civil 
 Procedure. Simmons vs. Pepe, 88 Supp., 122. 
 
 Prevailing party. Who is within the meaning of Sec. 330, 
 Municipal Court Act. Singer Mfg. Co. vs. Becket, 85 Supp., 
 391. 
 
 Sec. 8 — Discretionary Costs upon Municipal Court Judgment or Order, 
 
 The provisions of Subdiv. 4, this section {i. e., Sec. 345, 
 Mun. Ct. Act) are substantially the same as those contained in 
 
MOTION COSTS. 113 
 
 subdivisions 1 & 2 of Sec. 3238 of tlie Code of Civ. Pro. liereinbe- 
 fore referred to and the citations of authorities thereunder Tvill 
 apply to these sections. See Sec. 2, page 107, ante. 
 
 Sec. 9 — Costs upon Motion. 
 
 Costs upon a motion are in , the discretion of the Court in 
 the Appellate Term, and are provided for by the Code of Civil 
 Procedure, Section 3236, which reads : 
 
 §3236, Code of Civil Pro. Costs of a motion. 
 
 Costs upon a motion in an action, where the costs thereof are not 
 specially regulated In this act, or upon a reference made pursuant to 
 Sections 623, 624, 827, or 1015 of this act, may be awarded, either 
 absolutely or to abide the event of the action, or of the reference, to any 
 party, in the discretion of the court or judge. Price vs. Price, 61 Hun, 
 604; s. c, 16 Supp., 359. 
 
 'Order must contain allowance of costs. Unless the order 
 contains an allowance of costs a party is not entitled to them. 
 Chadwick vs. Brother, 4 How. Pr.^ 283; s. c, 3 Co. Eepr., 21; 
 Morrison vs. Ide, 4 How. Pr., 304 ; s. c, 3 Co. Eepr., 27. 
 
 Moving party charged with. The moving party will be 
 charged with costs if he asks in his moving papers for costs 
 without any foundation for it. Weeks vs. Southwick, 12 How. 
 Pr., 170. 
 
 Contested motion. Upon a contested motion costs may be 
 granted although no costs were asked in the notice of motion. 
 Jones vs. Cook, 11 Hun, 230. 
 
 Party moving, obtaining less than asking for, will not he 
 alloived costs. McKenzie vs. Hackstaff, 2 E. D., Smith, 75; 
 Whipple V. Williams, 4 How. Pr., 28. 
 
 Costs where refused. Where a party has been offered all 
 that he is entitled to, costs will be refused him upon his motion 
 for the same relief. Bell vs. Judson, 2 How. Pr., 42. 
 
 Costs on ew-parte motions — Will not be granted. Edlefson vs. 
 Duryee, 21 Hun, 607 ; Bowne vs. Anthony, 13 How, Pr., 301. 
 
 Costs of motion. Costs of a motion cannot be granted on 
 default, where the notice of motion asks for specific relief and 
 
114 MOTION COSTS — AMOUNT OF COSTS — CITY COURT. 
 
 for "other and further relief" but does not state that costs will 
 be asked for. Smith vs. Fleischman, 17 A. D., 532; s. c, 45 
 Supp., 553. 
 
 Motion costs — When set-off. Motion costs granted in the 
 Municipal Court should be included in the judgment or set-off 
 against the costs of the successful party. Farber vs. Flauman^ 
 SO Misc., 627; s. c, 62 Supp., 784. 
 
 Costs — Default motion. Upon a motion granted by default 
 if costs are not asked for, none will be granted. Smith vs. 
 Fleischman, 17 A. D., 532; s. c, 45 Supp., 553. 
 
 Costs for extension of time to file papers, &c. la 
 the Appellate Term costs are usually granted as a condi- 
 tion for granting permission to the appellant to file the papers 
 upon appeal from the City Court, or to file the return from the 
 Municipal Court after failure to file them within the time pre- 
 scribed by law. 
 
 Sec. 10 — Amount of Costs upon Appeal from a Judgnjent or Order of the 
 
 City Court. 
 
 Subdivision 4 of Sec. 3251 of the Code of Civ. Pro. provides 
 the amount of costs taxable upon an appeal from either a judg- 
 ment or an order of the City Court. 
 
 4. To either party, upon an appeal to the supreme court from an 
 Inferior court, excepting upon an appeal to the supreme court from the 
 city court of the city of New York; or upon an appeal to the appellate 
 division of the supreme court, or to the supreme court from the city court 
 of the city of New York, taken from an interlocutory or final judgment, 
 or from an order granting or refusing a new trial, rendered or made at 
 a trial term of the supreme court or of the city court of the city of New 
 York; or upon an application to the appellate division of the supreme 
 court for a new trial, or for judgment upon a verdict, rendered subject 
 to the opinion of the court, or where exceptions are ordered to be heard,. 
 In the first instance, at a term of the appellate division of the supreme 
 court; 
 
 Before argument, twenty dollars. 
 
 For argument, forty dollars. 
 
 For each term of the appellate division, not exceeding five, of the 
 supreme court, at which the cause is necessarily on the calendar, exclud- 
 ing the term at which it Is argued, or otherwise finally disposed of; ten 
 dollars. In all appeals taken under section 3189 costs awarded to the 
 successful party shall not exceed ten dollars in addition to the taxable dis- 
 bursements. 
 
AMOUNT OF COSTS — CITY COURT JUDGilENT^ ETC. 115 
 
 Under this subdivision tlie successful party upon an appeal 
 from a judgment of the City Court is entitled to $20 before 
 argument and |40 after argument. 
 
 This also applies to appeals from an order granting or re- 
 fusing a new trial. 
 
 Under Sec. 999 of the Code of Civ. Pro., if an appeal is 
 taken from an order made upon the motion, it must be heard 
 upon "a case prepared settled in the usual manner" and by 
 subdivision 3 of Sec. 3251, Code of Civ. Pro. the same costs are 
 "given upon a motion of a new trial upon a case" as upon 
 an appeal. Davis vs. Grand Eapids Fire Ins. Co., 5 
 A. D., 36; s. c, 39 Supp., 71; Eeid vs. Gaedeke, 38 A. D., 107; s. 
 c, 57 Supp., 414; Ireland vs. Harlam, 88 Supp., 990; Keoppel 
 vs. Keoppel, 98 Supp., 215. 
 
 Costs upon an interlocutory judgment. See Campbell vs. 
 Hallihan, 46 Misc., 409 ; s. c, 92 Supp., 413. 
 
 Argument — Meaning of. Where a case is submitted upon 
 briefs, it is equivalent to oral argument, and the costs are the 
 same to the successful party. Malcolm vs. Hamill, 65 How. Pr., 
 506. 
 
 Costs on appeal from order. In appeals taken under Sec. 
 3189 of the Code of Civ. Pro. costs shall not exceed |10 in addi- 
 tion to the taxable disbursements. See last clause sub-division 
 4, Sec. 3251 of the Code of Civ. Pro. See Campbell vs. Halli- 
 han, supra. 
 
 Disbursements. Under foregoing section not taxable un- 
 less so specified in the order. Wilson vs. Lange, 84 Supp. 519. 
 Dismissal of Appeal — Costs on. When appeal is dismissed 
 by the Appellate Term for failure to prosecute the same, re- 
 spondent cannot tax the sum of |25 costs. Poggenberg vs. 
 Mestaniz, 46 Misc., 110 ; s. c, 91 Supp., 342. 
 
 Costs where appeal is submitted — WithdroAcal of appeal. 
 An appeal once taken and perfected cannot be withdrawn with- 
 out payment of costs of the appeal. Mallery vs. Inter. St. Ey. 
 Co., 92 Supp., 60. These cases were submitted without argu- 
 ment for the decision of the Court. Subsequently the appellant 
 
116 AMOUNT OF COSTS — MUNICIPAL COURT. 
 
 conceding that the judgments were correct, sought to withdraw 
 the appeals. 
 
 Sec. 11 — Amount of Costs upon an Appeal from a Judgment or an Order 
 of the Municipal C6urt. 
 
 The amount of costs allowable upon a judgment upon an 
 appeal from the Municipal Court is fixed by Sec. 346 of the 
 Mun. Ct. Act. which reads as follows: 
 
 Sec. 346, Mun. Ct. Act. 
 
 Costs upon appeal; amount upon an appeal provided for in this act, 
 costs when awarded must he as follows, besides disbursements: 
 To the appellant upon reversal, thirty dollars. 
 To the respondent upon affirmance, twenty-five dollars. 
 
 Appeal from order — Costs are the same upon an appeal from 
 a judgment. Sections 253, 254, 255 and 256 of the Mun. Ct. Act 
 specify certain cases in which the trial court may grant or 
 refuse to grant orders and Sec. 257 (Mun. Ct, Act) provides 
 that an appeal shall lie from such orders (excepting one) "as 
 from a judgment." 
 
 Section 346, supra, provides that "upon an appeal provided 
 for in this act" etc. — so that it was evidently the intention of 
 the Legislature to allow the same amount of costs upon an ap- 
 peal from an order of the Municipal Court as from a judgment. 
 This is just, as the appeal from an order brings up the whole 
 record from the Municipal Court the same as upon an appeal 
 from a judgment. The Appellate Term has so held in Benton 
 vs. Moss, 47 Misc., 376 ; s. c, 93 Supp., 1113. 
 
 Taxation of costs aioarded hy the Appellate Term, the prac- 
 tice to be followed is prescribed by the concluding portion of 
 Section 341 of the Municipal Court Act which reads as follows : 
 "The clerk shall likewise tax costs allowed by the Appellate 
 Court and the prospective fees of the County Clerk and the 
 Sheriff, namely : a charge for docketing judgment and issuing 
 an execution, and for receiving and returning one execution 
 thereof." In order to tax the costs after an appeal, the success- 
 
COSTS — SBPAKATE JUDGMENT FOIL 117 
 
 ful party is required to procure the record consisting of the 
 return made on appeal and a certified copy order of affirm- 
 ance or reversal made by the Appellate Term, to be transmitted 
 to the Clerk of the Municipal Court in the district in which 
 the action was tried; he may then tax the costs awarded and 
 the disbursements of the appeal in the usual manner. 
 
 A Separate Judgment for Costs Must Be Entered. 
 
 It is improper to add the amount of the costs of the Ap- 
 pellate Term to a judgment upon which a transcript has been 
 previously issued, the proper practice is to obtain from the 
 Clerk of the Municipal Court, a new transcript for the costs 
 and disbursements of the Appellate Term as they are taxed by 
 him and to procure a separate execution therefor. 
 
 This was so decided in the action of Parsons against Frank 
 by Mr. Justice Gildersleeve. 
 
 This decision does not seem to have been reported elsewhere 
 than in the Law Journal of April 8th, 1903, and is therefore 
 quoted below in full. 
 
 "Parsons v. Frank — A motion is made herein to stay the 
 plaintiff from issuing an execution upon a judgment entered 
 in the above entitled action in the county clerk's office on the 
 17th day of March, 1903. The defendant states in his moving 
 papers that a judgment was perfected in the Municipal Court 
 on March 16, 1903, and docketed in the county clerk's office 
 the day following; that no summons in said action has ever 
 been served upon him, and that it is "his purpose 'to immedi- 
 ately appeal therefrom and also to move at the next Appellate 
 Term that said judgment be vacated as wholly void.' He fur- 
 ther states that, as he is informed and believes, said judgment 
 is based upon the papers returned by said Appellate Term to 
 said Municipal Court after an order of affirmance on appeal 
 from a judgment of said court rendered July 19, 1903. The 
 plaintiff, in his affidavit, explains the situation more fully. On 
 July 19 last a judgment was rendered in the Municipal Court 
 in favor of the plaintiff and against the defendant. The de- 
 fendant appealed therefrom to the Appellate Term. The ap- 
 peal was heard at the last February term, and the judgment 
 
118 COSTS — SEPARATE JUDGMENT FOB. 
 
 was affirmed. The plaintiff's attorney thereupon filed the order 
 of affirmance with the clerk of the Municipal Court, upon notice 
 taxed his costs upon appeal, and he says 'the clerk added them 
 to the amount of the judgment as appeared upon the record 
 and gave defendant a transcript thereof, which was filed,' and 
 this is the judgment the defendant claims was obtained against 
 him Tfithout service of process. It is clear that both parties 
 in this action have not followed the correct rule of practice. 
 The plaintiff should have had his costs on the appeal taxed in 
 the Municipal Court and a judgment entered thereon for the 
 amount of such costs. The clerk should not have added these 
 costs to the amount of the judgment, and then issued a tran- 
 script as for a new judgment. By the filing of the transcript 
 of a judgment with the added costs there is now on file two 
 judgments against this defendant, one for the amount of the 
 recovery in the Municipal Court upon the trial and another one 
 for the amount of said recovery plus the costs of the affirmance 
 upon appeal. This last judgment, entered upon the aforesaid 
 transcript, becomes, upon such filing, a judgment of this court, 
 but is irregular, and the plaintiff, instead of either 'api>ealing' 
 therefrom or making a motion in the Appellate Term to have 
 the same vacated, should have caused such judgment to be 
 vacated by the present motion. The plaintiff admits that there 
 is but 'one judgment in the action,' evidently meaning thereby 
 that only one judgment for any cause of action have ever been 
 recovered in his favor against the defendant, and states that, 
 if any error has been committed, he will consent to any amend- 
 ment, &c., that may be required. The judgment last entered 
 should be vacated by consent or upon motion. An order should 
 be entered in the Municipal Court, by consent or upon notice, 
 correcting the judgment herein by restoring it to its original 
 amount, and a judgment for the costs upon the appeal entered. 
 If the plaintiff then desires, he can take and file a transcript of 
 his judgment for costs with the county clerk. In the meantime 
 the defendant, if he so desires, can move in the Appellate Term 
 for leave to appeal to the Appellate Division from the judgment 
 of affirmance of the judgment of July 19, and, if he fears the 
 issuing of an execution, can procure a stay from that court or 
 a judge thereof, pending the determination of the Appellate 
 Term of his motion therein. As, in view of the foregoing, it is 
 unlikely that the plaintiff would issue an execution upon the 
 judgment irregularly entered , this motion may be denied, with- 
 out costs." Gildersleeve, April 8, 1903. 
 
CHAPTER XV. 
 
 APPEAL FROM THE APPELIiATE TERM TO 
 
 THE APPELLATE DIVISION OF THE 
 
 FIRST DEPARTMENT. 
 
 Sec. 1 — From what appeal must be Sec. 6 — Record on appeal from a 
 
 taken. determination of tlie Appellate 
 
 Sec. 2 — How appeal taken. Term, affecting a judgment or 
 
 Sec. 3 — Application for leave to ap- order from the Municipal Court. 
 
 peal to the Appellate Division. Sec. 7 — Practice in the Appellate 
 
 Sec. 4 — When and in what time ap- Division after record is filed, 
 
 peal must be taken. Sec. 8 — Remittitur from Appellate 
 
 Sec. 5 — Record from the determina- Division, 
 tion of the Appellate Term, af- 
 fecting a judgment or order from 
 the City Court. 
 
 Sec. 1 — ^From What Appeal Must Be Taken. 
 
 An appeal to the Appellate Division from the Appellate 
 Term is not taken from the judgment or order from the Court 
 of original jurisdiction, but the appeal is taken from the deter^ 
 ■mination of the Appellate Term, and therefore the form of the 
 notice of appeal would read accordingly. Lessler vs. Lawyers' 
 Surety Company, 50 A. D., 181. (See Section 1344, C. C. P.) 
 
 Sec. 2 — ^How Appeal Taken. 
 
 The appeal is not a matter of right, but is permissive and 
 !■ "there are two methods that may be resorted to. The one is by 
 permission from the Appellate Term and the other by applica- 
 tion to the Appellate Division ; but an application must be first 
 anade to the Justices who heard the original appeal, or the 
 -order will not be granted. See Rule X, page 120, post. 
 
 Sec. 3 — Application for Leave to Appeal to the Appellate Division. 
 
 The practice on the motion in the Appellate 'Term for leave 
 ±0 appeal has been treated of in Chapter V, p. 34, ante. The 
 
 119* 
 
120 LEAVE TO APPEAL APPLICATION FOE. 
 
 rule formerly was, that if the Appellate Term denied permis- 
 sion no appeal could be taken. By an amendment to Section 1344 
 of the Code of Civil Procedure permission to appeal from the 
 determination of the Appellate Term may be granted by a Jus- 
 tice of the Appellate Division in the First Judicial Department. 
 Although the reading of the Statute is that the application may 
 be made to a Justice of the Appellate Division, a rule known 
 as No. X was promulgated after the amendment to Section 1344 
 of the Code of Civil Procedure, which laid down how the appli- 
 cation must be made, which rule reads as follows : 
 
 "The following rule in respect to practice in the Appellate Division of the 
 
 First Judicial Department is hereby adopted by the Justices 
 
 of the Appellate Division in addition to those already 
 
 in force. 
 
 'Rule X — Applications to a Justice of the Appellate Division of the 
 First Judicial Department.' Under Section 1344 of the Code of Civil 
 Procedure, for the allowance of an appeal to be taken to such Appellate 
 Division from the determination of the Justices designated to hear appeals 
 from the City Court of the City of New York, and the Municipal Court of 
 the Borough of Manhattan and the Bronx, may be made upon any motion 
 day prior to the expiration of the second term of the Appellate Division 
 after such determination; and must be upon notice of two days to the 
 opposite party or parties, and a note of issue filed, and the same put upon 
 the calendar of motions in the manner provided by Rule 2 of the Appel- 
 late Division Rules relating to the hearing of motions. The papers upon 
 which the application is made must contain a copy of the opinion of the 
 Justices below, if any, a concise statement of the grounds of alleged error, 
 and proof of due service of papers upon which the application is founded. 
 Upon the calling of the motion calendar such applications must be sub- 
 mitted without argument. Such applications will not be entertained 
 unless an application for leave to appeal has first been made to the Jus- 
 tices by whom such determination was made in the manner provided by 
 Rule 7' for the regulation of the hearing of appeals from the City Court 
 of the City of New York and the Municipal Courts of the Borough of 
 Manhattan and the Bronx, and has been denied. (Adopted October 11th, 
 1904.") 
 
 Brief upon motion. — Upon this motion in the Appellate Di- 
 vision there is no rule which requires a brief to be printed, and 
 the motion papers of course may be typewritten. Nothing there- 
 fore is required to be printed, and the rule points out what must 
 be shown in the motion papers to procure the order. 
 
TIME WITHIN WHICH APPEAL TAKEN — RECORD. 121 
 
 Sec. 4 — When and in What Time Appeal Must Be Taken — If Permission 
 to Appeal is Given Either by the Appellate Term 
 or the Appellate Division. 
 
 A notice of appeal must be served within twenty days after 
 the entry of such order and service of a copy thereof with notice 
 of entry, allowing such appeal. (Section 3193 of the Code of 
 Civil Procedure. ) If the successful party in the Appellate Term 
 wishes to curtail the right of his adversary who has procured 
 an order from either the Appellate Term or Appellate Division 
 to appeal to the last-named tribunal, it is his duty to serve a 
 copy of the order granting leave with notice of entry thereof, 
 and he cannot rely upon service made by his adversary, to have 
 the time begin to run. The safest practice therefore will be 
 that where such an order is made, even though the party at 
 whose request the order was made has served a copy with notice 
 of entry, to likewise serve him with a copy and notice of the 
 entry of the order. If this is done there can be no question 
 that if the twenty days are allowed to pass and no notice of 
 appeal is served, the right is gone, as completely as if an appeal 
 were not taken within the statutory time and in the ordinary 
 case. 
 
 Sec. 5 — Record Upon Appeal From the Determination of the Appellate 
 Term Affecting a Judgment or Order From the City Court. 
 
 There are some requisites to be observed upon bringing the 
 record before the Appellate Division to which attention will 
 be directed, and there is some difference between a record which 
 came 'nto the Appellate Term from the City Court and one 
 which was transmitted from a Municipal Court, since the record 
 is already printed when it comes to the Appellate Term from the 
 former, and since by virtue of the provisions of the Code of 
 Civil Procedure the Clerk of the City Court has power to cer- 
 tify to the correctness of an appeal book, the record is sub- 
 stantially in a condition to be transmitted to the Appellate 
 Division; this is done, however, through the Clerk's Office of 
 the City Court. It has already been pointed out, that when the 
 
122 RECORD ON APPEAL TO A. D, — CLERK-'S CERTIFICATE. 
 
 decision is made by the Appellate Term the papers upon the 
 order or judgment appealed from is returned to the City Court 
 upon presentation to the Clerk of the Appellate Term of a cer- 
 tified copy of the order, and the payment of a fee of fifty cents, 
 hence in order to get a complete record, take the original appeal 
 book and print and annex to it, the order of afiSrmance or re- 
 versal of the Appellate Term (as the case may be), the order of 
 the City Court making the order of the Appellate Term, the 
 order of the City Court ; the order of the Appellate Term deny- 
 ing or granting leave to appeal to the Appellate Division (the 
 order of the Appellate Division, allowing the appeal to be taken 
 to the Appellate Division, if the same has been granted by the 
 Appellate Division), the notice of appeal to the Appellate Di- 
 vision; the opinion of the Appellate Term, or an affidavit of no 
 opinion if none was rendered; and the certificate of the Clerk 
 of the City Court of the City of New York, certifying to the 
 correctness of the papers in proper form (see form below), or 
 in lieu thereof a stipulation by the attorneys waiving certifica- 
 tion in proper form (see form below). 
 
 Form of Clerk's Certificate. 
 
 State of New York, 1 
 
 City and County of New York, j 
 
 I, Thomas F. Smith, Clerk of the City Court of the City of 
 New York in and for the County of New York, do hereby certify 
 that the foregoing consists of true and correct copies of the 
 xecord on appeal to the Appellate Term, the order of affirmance 
 (or reversal) and notice of appeal therefrom, the City Court 
 order and the order of the AppellateTerm refusing (or granting) 
 the appeal to the Appellate Division ( and where leave to appeal 
 was granted by the order of the Appellate Division Justice) 
 the order of a Justice of the Appellate Division, granting leave 
 to appeal to the Appellate Division, and all the papers which 
 the Court below acted upon in making the order appealed from, 
 
FOKM — WAIVER OF CEETIFICATION. 
 
 123 
 
 and the whole thereof now on file in the office of the Clerk of 
 the City Court of the City of New York. 
 
 In Witness Whereof, I have hereunto set my hand and 
 affixed my seal this day of , 190 . 
 
 XSeal) THOMAS F. SMITH, 
 
 Clerk, 
 
 Form of Waiver of Certification. 
 
 NEW YOKK SUPREME COUET, 
 Appellate Division. 
 
 Appellant, 
 
 against 
 
 Respondent. 
 
 Waiver of 
 Certification. 
 
 It is hereby stipulated that the papers as hereinbefore 
 printed consist of true and correct copies of the record on ap- 
 peal to the Appellate Term ; the order of affirmance ; and notice 
 of appeal therefrom ; the City Court order founded on said order 
 of the Appellate Term; and the order of the Appellate Term 
 refusing (or granting) leave to appeal to the Appellate Divi- 
 sion (and if application has been made to the Appellate Divi- 
 sion) and the order of the Justice of the Appellate Division 
 ■granting leave to appeal to the Appellate Division, and all the 
 papers upon which the Court below acted in making the order 
 :appealed from, and the whole thereof now on file in the office 
 
124 
 
 NOTICE OF APPEAL TO A. D. — FORM OF. 
 
 of the Clerk of the City Court of the City of New York, and 
 in the office of the Clerk of the Supreme Court, Appellate 
 Term. 
 
 Certification of the foregoing in pursuance of Section 1353 
 of the Code of Civil Procedure is hereby waived. 
 
 Dated New York, , 190 . 
 
 Attorney for Plaintiff. 
 Attorney for Defendant. 
 
 Form of a Notice of Appeal to the Appellate 
 
 Division Where Leave Granted by 
 
 the Appellate Division. 
 
 NEW YOEK SUPKEME COUKT, 
 
 Appellate Term. 
 
 Appellant, 
 
 vs. 
 
 Eespondent. 
 
 Notice of 'Appeal to the Ap- 
 pellate Division from 
 Determination of the 
 Appellate Term. 
 
 Sir: 
 
 Please take notice that the defendant-appellant above 
 named, , appeals to the Appellate Division of 
 
 this Court, First Judicial Department (pursuant to the order 
 
NOTICE OF APPEAL TO A. D. — FORM OF 125 
 
 of Hon. , a Justice of the said Appel- 
 
 late Division, granting leave to the defendant-appellant so to 
 appeal, which order was duly entered in the office of the Clerk 
 of the County of New York, the day of , 
 
 190 , (and of which a copy has been served on you), from the 
 determination and order of the Appellate Term in the above- 
 entitled cause, entered in the office of the Clerk on the 
 day of , 190 , affirming the judgment of the City 
 
 Court of the City of New York, entered in the office of the 
 Clerk of the said Court on the day of , 190 , 
 
 in favor of the above-named plaintiff-respondent and against 
 the above-named defendant-appellant, and also affirming, an 
 order of the City Court denying defendant-appellant's motion 
 for a new trial, and from each and every part of said determina- 
 tion and order of the Appellate Term, and from each and every 
 part of said judgment and order of the City Court of the City 
 of New York. 
 
 Yours, etc., 
 
 Attorney for Defendant-Appellant, 
 
 Office & Post Office Address, 
 
 To ^ -■ , 
 
 Attorney for Respondent. 
 
 Clerk. 
 
126 
 
 NOTICE OF APPEAL — POEM OF — UPON LEAVE OF A. T. 
 
 Form — Notice of Appeal to the Appellate Divi- 
 sion Upon Leave by tlie Appellate Term. 
 
 NEW YOEK SUPREME OOUKT, 
 Appellate Teem. 
 
 Appellant, 
 
 against 
 
 Respondent. 
 
 Notice of Appeal to the Ap- 
 pellate Division Upon. 
 Leave by the Appellate 
 Term. 
 
 Sir: 
 
 Please take notice that the defendant-appellant above 
 named, , appeals to the Appellate Division 
 
 of this Court, First Judicial Department (pursuant to an order 
 made by the Appellate Term of the Supreme Court of New 
 York County, entered in the office of the Clerk of the County of 
 New York, on the day of , 190 ), from the 
 
 determination and order of the Appellate Term in the above- 
 entitled cause, entered in the office of the Clerk thereof, on the 
 day of , 190 , affirming the judgment of 
 
 the City Court of the City of New York, entered in the office of 
 the Clerk of said Court on the day of , 190 , 
 
 in favor of the above-named plaintiff-respondent and against 
 the above-named defendant-appellant and also affirming an 
 order of the City Court denying defendant-appellant's motion 
 for a new trial, and from each and every part of said determina- 
 tion and order of the Appellate Term, and from each and every 
 
OEDEE OF A, D. GEANTING LEAVE — FOEM OF. 
 
 127 
 
 part of said judgment and order of the Oity Court of the City 
 of New York. 
 
 Yours, etc., 
 
 Attorney for Defendant-Appellant, 
 
 Office & Post Office Address, 
 
 To 
 
 Attorney for Eespondent. 
 
 Clerk. 
 
 Form of an Order Entered hy a Justice of the 
 Appellate Division Granting or Deny- 
 ing* Leave to Appeal to the 
 Appellate Division. 
 
 NEW YOEK SUPKEME COURT, 
 Appellate Division — Fiest Depaetment. 
 
 Appellant, 
 
 vs, 
 
 Eespondent. 
 
 Order Granting Leave to- 
 Appeal to Appellate Di- 
 vision from Determina- 
 tion of Appellate Term. 
 
 An application having been made in this cause by the de- 
 fendant-appellant above named, to a Justice of the Appellate 
 
128 APPEAL TO A. D. — RECORD ON MUN. CT. APPEAL. 
 
 Division of the Supreme Court, First Judicial Department, 
 pursuant to Section 1344 of the Code of Civil Procedure, for 
 leave to appeal to the said Appellate Division, First Depart- 
 ment, from a determination of the Appellate Term, entered iu 
 the office of the Clerk thereof on the day of , 
 
 190 , affirming a judgment of the City Court of the City of 
 New York, entered in the office of the Clerk of said Court on 
 the day of , 190 , in favor of the above- 
 
 named plaintiff-respondent and against the above-named de- 
 fendant-appellant, and also affirming the order of the said City 
 Court, denying defendant-appellant's motion for a new trial; 
 and after hearing, , attorney, and 
 
 , of counsel on behalf of defendant- 
 appellant, and , opposed, and said 
 application having been duly and timely made and due delib- 
 eration having been had, now, on motion of 
 
 , attorney for defendant-appellant, it is 
 
 Ordered, that the defendant, , 
 
 ' have leave to appeal to the said Appellate Division of this Court 
 
 from the said determination of the Appellate Term and from 
 
 the said judgment and order of the City Court of the City of 
 
 New York. 
 
 Dated New York, , 190 . 
 
 Justice of the New York Supreme Court, 
 Appellate Division, First Department 
 
 Sec. 6 — Record on Appeal to the Appellate Division From a Determination 
 
 of the Appellate Term, Affecting a Judgment or Order 
 
 From the Municipal Court. 
 
 Since the record coming into the Appellate Term from the 
 Municipal Court, is not required to be printed in that Court, 
 where an appeal is sought to the Appellate Division it must be 
 changed from its typewritten form to a printed form, and must 
 be certified to in like manner as a record from the City Court 
 which is sought to be reviewed by the Appellate Division. 
 
RECORD ON APPEAL TO A. D. — MUN. CT. APPEAL. 129 
 
 Since the return of the Municipal Court appeal is made to 
 the Clerk of the Municipal Court logically he would be the cus- 
 todian of the papers and the proper officer to certify to the cor- 
 rectness thereof, but the Appellate Division does not accept 
 his certification, accordingly the record is transmitted to the 
 County Clerk for the purpose of an appeal to the Appellate 
 Division, and. the record is made up by printing the record pur- 
 suant to Rule 41 and including the minutes and exhibits of 
 the Municipal Court to which are added the other papers 
 making up the return of the Justice of the Municipal Court 
 a copy of the order or reversal of the Appellate Term if 
 any an affidavit of no opinion if none was rendered; a 
 •copy of the order of the Appellate Term granting or denying 
 leave to appeal to the Appellate Division and where applica- 
 tion has been made to the Appellate Division, a copy of the 
 Judge's order of that Court granting leave to appeal to the 
 Appellate Division, and the certificate of the County Clerk in 
 proper form ( see form below ) , or a waiver of such certification 
 {see form below). 
 
 Form of Notice of Appeal. 
 
 NEW YORK SUPREME COURT. 
 
 Plaintiff, 
 against ; 
 
 Defendant. 
 
 You will please take notice that the above-named ' 
 
 hereby appeals to the Appellate Division of the 
 Supreme Court, First Department, from the determination 
 9 
 
130 NOTICE OF APPEAL TO A. D. — MUN. CT. APPEAL. 
 
 of the Appellate Term of the Supreme Court, First Department, 
 , the judgment entered herein in the office of 
 the Clerk of the Municipal Court of the City of New York,. 
 District, Borough of , on the day 
 
 of , 190 , In favor of the , and 
 
 against the , for the sum of f , and from tha 
 
 order of , entered in the office of the Clerk of the 
 
 Appellate Term of the Supreme Court, First Department, on 
 the day of , the judgment entered herein 
 
 as aforesaid and the appealed from each and 
 
 every part of said judgment and order and determination as well 
 as from the whole thereof. 
 
 Attorney for Appellant. 
 
 To , Esq., 
 
 Clerk of Supreme Court of the State of New York, in the 
 County of New York, and Clerk of the County of 
 New York. 
 
 To , 
 
 Clerk of the City or Municipal Court, 
 Borough of Manhattan, 
 District. 
 
 To , Esq., 
 
 Attorney for Eespondent. 
 
 Form for Certificate. 
 
 State of New York, 
 
 City and County of New York 
 
 [ ss. 
 
 I, Peter Dooling, Clerk of the said County and Clerk of 
 the Supreme Court of the State for said County, do hereby 
 certify that the foregoing consists of true and correct copies of 
 the record on appeal to the Appellate Term ; the order of afl&rm- 
 
CERTIFICATE AND STIPULATION WAIVING — FORM. 
 
 131 
 
 ance ( or reversal ) ; and notice of appeal therefrom ; the order 
 of the Appellate Term refusing (or granting) leave to appeal to 
 the Appellate Division (or if leave is granted by the Appellate 
 Division) a copy of the order of a Justice of the Appellate 
 Division granting leave to appeal to the Appellate Division, and 
 all the papers upon which the Court below acted in making the 
 order appealed from and the whole thereof and which -is now on 
 file in my ofQce. 
 
 In Witness Whereof I have hereunto set my hand and 
 affixed my official seal this day of , 190 . 
 
 (Seal) • PETER DOOLING, 
 
 Clerk. 
 
 Form — Stipulation Waiving: Certification. 
 
 NEW YORK SUPREME COURT, 
 
 Appellate Division — First Department. 
 
 Appellant, 
 
 against 
 
 Respondent. 
 
 It is hereby stipulated that the papers as hereinbefore 
 printed consist of true and correct copies of the record on ap- 
 peal to the Appellate Term, the order of affirmance (or re- 
 versal) and notice of appeal therefrom, the order of the Ap- 
 pellate Term granting (or refusing) leave to appeal to the Ap- 
 
132 PEACTICE IN APPELLATE DIVISION (AFTER KECOUD FILED) . 
 
 pellate Division (or if leave was granted by a Justice of the 
 Appellate Division) the order of the Justice of the Appellate 
 Division granting leave to appeal to the Appellate Division, 
 and all the papers upon which the Court below acted in making 
 the order appealed from and the whole thereof, now on file in 
 the office of the Clerk of the Supreme Court; certification 
 thereof, in pursuance of Section 1353 and 3194a of the Code of 
 Civil Procedure is hereby waived. 
 
 Dated New York, , 190 . 
 
 Attorney for Appellant. 
 
 Attorney for Respondent. 
 
 Sec. 7 — Practice in the Appellate Division After Record Is Piled. 
 
 On appeal from determination from an order. The practice 
 in the Appellate Division after the record is brought into that 
 Court is the same as if the appeal were from a judgment or 
 order of the Supreme Court to the Appellate Division. Hence, 
 if the determination involves an order which was the subject 
 of review by the Appellate Term, it will go upon the non- 
 enumerated calendar in the manner provided for by Rules III 
 and IV, which provide respectively for a note of issue, etc., 
 which must be filed with the Clerk at least eight days before 
 the day the appeal is noticed for. The calendar practice and 
 the notice of argument, the time for filing papers, the requisite 
 copies, etc., and which Rules read as follows: 
 
 Rule 2. 
 
 The first and third Friday of each term, and such days as shall be 
 designated for hearing appeals from orders in the months of July, August 
 and September, shall be motion days. The clerk will make up a calendar 
 for each motion day of all motions noticed to be heard on that day. A 
 note of issue, stating the nature of the motion and the day for which it 
 has been noticed, must be filed with the clerk before 12 o'clock noon on 
 
KULES OF PKACTICE IN APPELLATE DIVISION. 133 
 
 Thursday preceding the Friday for which the motion is noticed. No 
 motion not upon such calendar will be heard. All ex parte applications 
 must be made upon motion days, except by special permission of the 
 Court. 
 
 Rule 3. 
 
 Appeals from orders will he heard only on motion days the calendar 
 of which will be taken up immediately after the disposition of the motion ■ 
 calendar. On the argument of such appeals not more than fifteen min- 
 utes will be allowed to each side, except when the court otherwise orders. 
 Appeals from orders which have been placed upon the calendar may be 
 submitted by the parties, with the approbation of the court, at any time 
 during the term, upon delivering to and leaving with the clerk the re- 
 quisite number of printed copies of the points. 
 
 (At the opening of the court on motion days the counsel 
 for the respective parties in cases upon the Day Calendar shall 
 deliver to the clerk, in his office, sixteen copies of the Points 
 and, before the argument, shall deliver to the opposing counsel 
 three copies of their points, printed as required by the General 
 Eules of Practice. ) 
 
 Rule 4. 
 
 Appeals from orders may be noticed for argument on any motion 
 day. The appellant or moving party must file with the clerk of the Ap- 
 pellate Division at least eight days before the day upon which such appeal 
 shall have been noticed, a note of Issue, which shall state the day upon 
 which the notice of appeal shall have been served, and sixteen copies of 
 the papers upon which the appeal is to be heard, printed as required by 
 Rule XLI of the General Rules of Practice, with an affidavit showing the 
 service of three printed copies thereof, upon the attorney for the re- 
 spondent, together with a notice Of argument of the appeal with admis- 
 sion of proof of service, and the clerk shall thereupon place the appeal 
 upon the calendar for the day upon which such appeal shall have been 
 noticed. If an appeal shall have been noticed for argument by the 
 respondent, and the appellant or other party whose duty it is to file 
 sixteen copies of the papers upon which the appeal is to be heard, printed 
 as required by the General Rules of Practice, shall fail to file the same 
 at least eight days before the day for which such appeal is noticed the 
 opposite party may move upon affidavit and upon four days' notice of 
 motion that the appeal be dismissed or that judgment be rendered in his 
 favor. 
 
 At any time before three o'clock of the day preceding the day upon 
 which a non-enumerated case shall have been noticed for argument or to 
 which the hearing thereof shall have been adjourned, the respective counsel 
 may file a written consent with the clerk that thje case may be set down 
 for a subsequent motion day; and cases set down will be added to the 
 calendar of that day at the foot of the cases remaining thereon undisposed 
 of without further notice. 
 
 Upon appeal from determination affecting a judgment. 
 Upon appeal from the determination of the Appellate Term 
 
134 RULES OP PRACTICE IN APPELLATE DIVISION. 
 
 affecting a judgment of the City Court or Municipal Court, thii 
 practice is the same as if it were from a judgment of the Su^ 
 preme Court to the Appellate Division, pursuant to Rules V, 
 VI and VII of the Rules of the Appellate Division of the First 
 Department which respectfully provide for enumerated cases, 
 the provision for filing a notice of argument and a note of issue, 
 the service of the requisite copies of the printed return together 
 with the service of the appellant's brief upon the respondent, 
 the filing of briefs with admission of proof of service, and the 
 calendar practice, and which read as follows : 
 
 Rule 5. 
 
 The clerk will make up a calendar of enumerated cases for eacli term 
 of the court, which shall consist of the enumerated cases upon the cal- 
 endar of the preceding term undisposed of, and which shall not have 
 heen passed twice upon any of the previous calendars of the court, to 
 which shall he added new cases which shall have been noticed as here- 
 after provided. The appellant or moving party must file with the Clerk 
 of the Appellate Division at least fifteen days before the commencement 
 of the term for which the case has been noticed for argument, a note of 
 issue, which shall state the day upon which the notice of appeal has been 
 served, the sixteen copies of the, papers upon which the case is to be 
 heard, printed as required by the General Rules of Practice, with an 
 affidavit showing the service of three printed copies thereof upon the 
 attorney for the respondent, and sixteen printed copies of the points to 
 be relied on by him, as required by Rule 6, with an affidavit showing the 
 service of three printed copies thereof upon the attorney for the respond- 
 ent, together with the notice of argument of the case or notice of motion, 
 with admission or proof of service. 
 
 If an appeal shall have been noticed for argument by the respondent 
 and the appellant or other party whose duty it is to file sixteen copies 
 of the papers upon which the appeal is to be heard, printed as required 
 by the General Rules of Practice, or sixteen copies of the points to be 
 relied on by him, shall fail to file the same at least fifteen days before 
 the day for which such appeal is noticed, the opposite party may move 
 upon affidavit and upon four days' notice of motion that the appeal be 
 dismissed, or that judgment be rendered in his favor. 
 
 Cases entitled by law to a preference, when such preference is 
 claimed in the note of issue, shall be placed at the head of the calendar. 
 
 Rule 6. 
 
 At least fifteen day^ before the commencement of the term for which 
 an enumerated case has been noticed for argument the appellant, the 
 plaintiff in a controversy submitted to the court under section 12 79 of 
 the Code of Civil Procedure, the relator in a writ of certiorari or the 
 moving party in any case to be heard as an enumerated case, shall file 
 with the clerk sixteen printed copies and shall serve on the attorney for 
 the respondents three printed copies of the points to be relied upon by 
 
RULES OF PRACTICE IN A. D. — REMITTITUR. 135 
 
 him, with a reference to the authorities to be cited. Within ten days after 
 such service the respondent shall file with the clerk sixteen printed copies 
 and serve on the attorney for the appellants three printed copies of the 
 points to be relied upon by him, with a reference to the authorities to be 
 ■cited. If the appellant desired to present points or authorities in reply 
 he shall file with the clerk sixteen printed copies and serve three printed 
 ■copies thereof on the attorney for the respondent within five days after 
 the receipt of the respondent's points, and no subsequent points will be 
 received from either side unless especially requested by the court. No 
 points will be received by the court on the argument or submission of 
 the appeal unless they shall have been filed and served as above provided. 
 At 4 o'clock on each day the clerk will make up a calendar of fifteen 
 enumerated cases for the next day. A case on such Day Calendar will 
 not be reserved or postponed except by order of the court upon special 
 ■cause shown. At any time after the filing of a- note of issue in an 
 ■enumerated cause and before it shall have been placed on the Day Calen- 
 dar a written consent, signed by the attorneys or counsel who are to argue 
 the case, that the appeal be set down for any future day of the term prior 
 to the third Thursday thereof may be filed with the clerk, and such case 
 shall be placed on the Day Calendar for such day at the end of the cases 
 remaining thereon undisposed of in the order upon which they have been 
 set down, provided that such cases shall be placed on the Day Calendar, 
 and provided that such cases would have been reached on the General 
 Calendar if not so set down. If a respondent is in default in the filing 
 and serving of the points, as hereinbefore provided, he will not be heard, 
 except by special leave of the court. 
 
 Rule 7. 
 
 The parties to a case that has been reached upon the regular call 
 <of the calendar may, by consent, submit the appeal by delivering to the 
 "Clerk of the court the requisite number of points printed, as required by 
 the General Rules of Practice. 
 
 Sec. 8 — ^Bemlttitur from Appellate DiTision. 
 
 By Section 1345 of the Code of Civil Procedure it is provided 
 that after a decision has been made by the Appellate Division 
 a remittitur must be transmitted by the Clerk of the Appellate 
 Division. This is made in the case of a judgment or order of the 
 City Court to the Clerk of that Court and in the case of an ap- 
 peal from a judgment or order from the Municipal Court, to the 
 County Clerk, the latter who will in turn remit the same upon 
 request to the office of the Clerk of the Municipal Court from 
 which the appeal was taken. 
 
 Note. — The Appellate Division in the First Department prepares its 
 own orders on motions and appeals unless in special cases, similar to the 
 method adopted in the Appellate Term. (See page 56.) 
 
CHAPTER XVI. 
 
 APPEALS FROM THE MUNICIPAL COURT TO 
 
 THE APPELLATE DIVISION IN THE 
 
 SECOND DEPARTMENT. 
 
 Sec. 1 — Where heard; Jurisdiction; Sec. 5 — Briefs; Argument. 
 
 Sources; Historical sketch. Sec. 6 — Motions. 
 
 Sec. 2 — Calendar Practice; Terms. Sec. 7 — Order on Decision. 
 
 Sec. 3 — Notice of Argument. Sec. 8 — Decisions in practice of the 
 
 Sec. 4 — Record on Appeal; Return; Appellate Term in the First De- 
 
 How return compelled. partment; Effect of; Comity. 
 
 Sec. 1 — ^Where Heard — Jurisdiction — Sources — ^Historical Sketch. 
 
 All appeals in actions in the Municipal Court triable in the 
 Districts of the Court located in the Second Judicial Depart- 
 ment, lie directly to the Appellate Division of the Supreme 
 Court, Second Judicial Department. Acting under the provi- 
 sions of Section 1367 of the Charter of the City of New York> 
 as amended by Chapter 546 of the Laws of 1898, the Appellate 
 Division designated itself to hear all such Municipal Court 
 appeals, on and after the 15th November, 1898. Its authority 
 for so doing is preserved and continued by Section 310 of the 
 Municipal Court Act. 
 
 Before the amendment to Section 1367 of the Charter and 
 as the same was originally enacted by Chapter 378 of the Laws 
 of 1897, these appeals could not be heard by the Appellate 
 Division at all, and they were heard by the Special Term^ 
 sitting in the County Court Hohse, Kings County, under desig- 
 nation of the Appellate Division (Manheim v. Seitz, 36 App, 
 Div., 352, 353). Nor would an appeal lie from the Special 
 Term to the Appellate Division (id.). 
 
 The legislature was authorized to confer this jurisdiction 
 upon the Supreme Court, and the Appellate Division thereof, 
 by the Constitution of 1894 (Article VI, Sections 1, 2 and 5). 
 
 136 
 
CALENDAR PRACTICE — TERMS. 137 
 
 In immediately acting upon its new authority to designate 
 itself to hear Municipal Court Appeals, the Appellate Division 
 assumed the severe burden of this large volume of business, 
 greatly to the relief of the Special Term, and in furtherance of 
 the interests of orderly public justice. 
 
 Sec. 2 — Calendar Practice — Terms. 
 
 Formerly, and until the February, ld05, term, appeals from 
 the Municipal Court were placed upon a special calendar, which 
 was called on the second Friday of each term of the Appellate 
 Division, upon which day a hearing of said appeals was had;, 
 and if the calendar was not entirely disposed of on said day, 
 the remaining causes were preferred upon the calendars of suc- 
 ceeding days until disposed of. 
 
 The regular labors of the Court were so hampered by this, 
 arrangement, that at the February, 1905, term the present 
 calendar rule was put into operation, under which Municipal 
 Court Appeals are placed on the general calendar of enumerated 
 cases, according to the date of appeal, and are treated in all 
 respects, except as hereinafter stated, like other appeals to the 
 Appellate Division from Courts other than the Supreme Court. 
 Appeals from orders of the Municipal Court, authorized by 
 Sections 253, 254 and 255 of the Municipal Court Act, as well 
 as final orders in summary proceedings, follow the same calen- 
 dar practice. 
 
 The terms of the Appellate Division are appointed by it for 
 each year, under Section 225 of the Civil Code, and are an- 
 nounced prior to the first of January. For 1907 they are : 
 
 First Tuesday of January. 
 Fourth Monday of February. 
 Third Monday of April. 
 First Monday of June. 
 Fourth Monday of September, 
 Second Monday of November. 
 
138 CALENDAR PKACTICE — RULES. 
 
 Each term usually contioues for four successive weeks. For 
 many years the terms have been appointed for the same timea 
 as for 1906; and they are all held in the Borough Hall in the 
 Borough of Brooklyn, the Court convening at one o'clock in 
 the afternoon, and sitting until five, or the earlier disposition 
 of its calendar. 
 
 Either party may place the cause upon the calendar by a 
 note of issue filed at least eight days before the commencement 
 of the term. If the note is filed by the respondent, it should be 
 marked "respondent's note." The appellant's note will not be 
 received unless the return has been filed. The note of issue 
 should contain the title of the cause, the date of serving the no- 
 tice of appeal, the names of counsel, and a statement of the 
 Court and Justice from whom the appeal is taken. Preferably, 
 the note of issue should be typewritten. 
 
 A cause is not usually reached until the third term after it 
 appears upon the printed calendar, which is distributed, gratis, 
 by the Clerk, five days before the commencement of each term. 
 
 A new calendar is made up for the January term. Calendars 
 for subsequent terms during the year are made up by adding to 
 the calendar of the previous term all new appeals which are 
 placed thereon according to the date of appeal. 
 
 An appeal passed during any term may be brought on for 
 argument on any day during a subsequent term upon stipula- 
 tion or upon four days' notice to the opposing party; and on 
 filing with the Clerk such stipulation or proof of service of such 
 notice, the Clerk will place the cause on the day calendar of the 
 day named in such notice or stipulation. 
 
 Before a cause has been reached on the day. calendar it may 
 be set down for a day subsequent to the time when it would 
 be reached in its order, when a stipulation to that effect is filed 
 with the Clerk before the day calendar is made up, about five 
 o'clock in the afternoon. 
 
 If the cause is entitled to a preference, the claim therefor 
 must be made in the note of issue, as provided by Section 793 
 of the Code ; or if an order giving a preference has been made 
 
NOTICE OF ARGUMENT — EECOED ON APPEAL. 139 
 
 under that Section, the note of issue must be accompanied by a 
 copy of such order. 
 
 The day calendar for each day shall consist of twelve causes 
 taken from the general calendar. 
 
 Prior to the making up of a new calendar in January of 
 each year the Clerk posts and publishes in the Law Journal 
 seasonable notice and instructions to counsel as to placing old 
 and passed causes on the new calendar. 
 
 Sec. 3 — Notice of Argtunent. 
 
 The appeal is brought on for argument by the usual notice, 
 served at least eight days before the beginning of the term. It 
 is not necessary to file the notice, or make proof of service, un- 
 less a default is taken. 
 
 When the cause is reached, the respondent may, on default 
 of his adversary, and on proving service of notice of argument, 
 take a judgment of aflfirmance, or an order dismissing the ap- 
 peal as the justice of the case may require; and it is not neces- 
 sary to make a special motion for the dismissal of the appeal, 
 except for failure to file the return. 
 
 Sec. 4 — Record on Appeal — Return — How Return Compelled. 
 
 The appeal is heard upon the original return made pursuant 
 to Section 317 of the Municipal Court Act, or a certified copy 
 thereof. 
 
 It is the duty of the appellant, in case of failure of the 
 Justice of the Municipal Court to make a return, to apply to the 
 Appellate Division under Sections 3055 and 3056 of the Civil 
 Code to compel such return. Such an application may be made* 
 at any time, and is heard by the Court out of its order as a 
 motion; the practice thereon being the same as in the First 
 Department. 
 
140 BRIEFS — AEGUMENT — MOTIONS. 
 
 Sec. 5 — Briefs — Argument. 
 
 Each party may file five copies — sprinted or typewritten — 
 of any brief or points which he desires to subn\it, at least one 
 day before the argument. The name of counsel who is to orally 
 argue the cause shall be endorsed on the upper right-hand corner 
 of the first page of the brief. When a statute is cited, so mucli 
 thereof as may be deemed necessary to the discussion of the 
 case, should be printed at length on the brief. The rule does, 
 not require the exchange of briefs. 
 
 There is no greater limitation upon the time to be taken 
 by counsel in oral argument than is contained in Rule 47 of the 
 General Rules of Practice — one counsel on each side, not more 
 than one hour each ; but it is not generally supposed that coun- 
 sel shall take any more time than is absolutely necessary in 
 the argument of a Municipal Court appeal. The Court some- 
 times permits two counsel to be heard on a side, provided the 
 time and the argument be divided. 
 
 At the opening of the Court, the calendar is called once 
 through, and either or both sides may submit, or the Clerk will 
 submit for them if requested. On the second call, the argument 
 is heard. If a party be not present and his brief is filed, it will 
 be submitted by the Clerk. "Ready" is the rule in the Appellate 
 Division, applications to postpone are not favored, and are 
 rarely granted. 
 
 Sec. 6 — Motions. 
 
 Ex-parte applications and recess motions are made to the 
 presiding Justice. 
 
 Contested motions are heard on the first and third Mondays 
 of each term. Notes of issue therefor must be filed two days 
 before the day for which they are noticed. 
 
 Motions to dismiss appeals for failure to file return, may be 
 made where the thirty days allowed by Section 317 of the Muni- 
 cipal Court Act have expired, and unless good cause is shown, 
 as that the minutes could not be procured in time, or that some 
 
MOTIONS — REARGUilENT — LEAVE TO APPEAL.' 141 
 
 xinavoidable cause has prevented a timely return, are readily 
 granted. Good faith on the part of the appellant is the usual 
 test; and the Court is liberal in permitting a party who exer- 
 cises good faith and fair and reasonable diligence, an oppor- 
 tunity to prosecute his appeal. Five days' notice of motion 
 should be given. 
 
 Motions for Re-argument must be speedily made, and must 
 be upon notice of five days to the adverse party, stating briefly 
 the ground upon which a re-argument is asked, and such motions 
 must be submitted upon printed briefs, stating concisely the 
 points supposed to have been overlooked or misapprehended by 
 the Court, with proper reference to the particular portion of the 
 tase and the authorities relied on; and a copy of the opinion 
 delivered by the Court in deciding the case, if any ; and counsel 
 will not he heard orally. This last rule is strictly enforced. 
 Five days' notice should be given ; and five copies of the printed 
 briefs should be submitted. 
 
 Motions for leave to appeal to the Court of Appeals are also 
 entertained, but rarely granted. If granted the record must 
 be printed, and the appeal perfected in that Court as any appeal 
 from a judgment of the Appellate Division. If the motion for 
 leave to ap^peal to the Court of Appeals is joined with a motion 
 for a re-argument, the latter branch of the motion must be sub- 
 mitted, and counsel will not be heard thereon; and the better 
 view seems to be that briefs must be printed on this branch of 
 the motion. Many practitioners disapprove this joinder of the 
 two motions, believing that leave to appeal is granted, the denial 
 of motion for re-argument is hurtful in the Court of Appeals, 
 and that seeking leave to appeal to that Court prejudices appli- 
 cation for re-argument. 
 
 Motions for stay, motions for restitution, and other inci- 
 dental motions are brought on by five days' notice on a motion 
 ^ay; and the rules relating thereto, and governing the decision 
 thereof, have been stated in the Chapter on Motions in the First 
 Department. ( See Chap. V, p. 23, ante. ) 
 
142 ORDERS ON DECISION — SIMILARITY TO APPELLATE TERM. 
 
 There is no special motion day in the Appellate Division for 
 Municipal Court cases. All motions are placed indiscrimi- 
 nately on the same calendar, according to the time of filing note 
 of issue. 
 
 Sec. 7— Order on Decision. 
 
 The Court usually hands down decisions each Friday at 
 the opening of Court in term times ; in vacation at the conveni- 
 ence of the Court. Thereafter the Clerk expeditiously prepares 
 and has signed the order on the appeal, and on payment of his 
 fees, usually sixty cents, transmits the record to the proper 
 Municipal Court. The Clerk of the Municipal Court taxes the 
 costs, if any, and enters up the judgment. If a new trial is 
 granted, it is not usual to fix the day therefor in the order of 
 the Appellate Division, but that is done by motion and order 
 or stipulation in the Municipal Court. 
 
 Sec. 8 — Decision in Practice of the Appellate Term, in the First Depart- 
 ment — Effect Of — Comity. 
 
 In SO far as the Appellate Division of the Second Depart- 
 ment is the Appellate tribunal from the Municipal Court, it 
 is a Court of co-ordinate jurisdiction with the Appellate Term, 
 in the County of New York, and, as a matter of comity the de- 
 cision of the one Court is usually accepted as controlling law 
 in the respective departments, and the practice in the Appellate 
 Division is strikingly similar to that of the Appellate Term. 
 For that reason the various motions discused under the Chapter 
 "Practice Motions," Chap. V, p. 23, ante, in the Appellate 
 Term, would be useful for reference purposes upon appeals in 
 the Second Department. 
 
FORM. 145 
 
 Form— Order of Affirmance of Judgment of the 
 
 City Court. 
 
 to 
 
 At a term of the Supreme Court held for the hearin 
 of appeals from the City and Municipal Courts of 
 the First Judicial Department, at the County 
 Court House in the City of New York, Borough 
 of Manhattan, on the day of 190 
 
 Present — 
 
 Hon 
 
 if 
 
 Justices. 
 
 vs. 
 
 Order of Affirmance of Judgment 
 of the City Court. 
 
 The above named. in this action 
 
 having appealed to the Supreme Court from a judgment of the 
 City Court entered in the oflQce of the Clerk of said Court on 
 
 the day of 190 and from an order made 
 
 by said Court denying a motion for a new trial therein, and 
 the said appeal having been heard and due deliberation having 
 been had thereon. 
 
 It is ordeked and adjudged, that the judgment and order 
 so appealed from be and the same are hereby affirmed : and that 
 the respondent recover of the appellant the costs of this appeal. 
 
 Enter 
 
 J. S. C. 
 
Hi FOKM. 
 
 Porm — Order of Reversal on Appeal from City 
 Court Judgement. 
 
 At a term of the Supreme Court held for the hearing 
 of appeals from the City and Municipal Courts of 
 the First Judicial Department, at the County 
 Court House in the City of New York, Borough 
 of Manhattan, on the day of 190 
 
 Present — 
 
 Hon 
 
 Justices. 
 
 vs. 
 
 Order of Reversal on Appeal from 
 City Court Judgment. 
 
 The above named in this action 
 
 having appealed to the Supreme Court from a judgment of the 
 City Court entered in the office of the Clerk of the City Court 
 
 on the day of 190 and from an order 
 
 of said Court denying a motion for a new trial, and the said 
 appeal having been heard and due deliberation having been 
 had thereon. 
 
 It is heeeby ordered and adjudged, that the judgment 
 and order so appealed from be and the same is hereby reversed 
 and a new trial ordered with costs to the appellant to abide 
 the event. 
 
 Enter 
 
 J. S. C. 
 
FORM. 145 
 
 Form — Order on Affimuance or Reversal of 
 Order of tlie City Court. 
 
 At a term of the Supreme Court held for the hearing 
 of appeals from the City and Municipal Courts of 
 the First Judicial Department, at the County 
 Court House in the City of New York, Borough 
 of Manhattan, on the day of 190 
 
 Present — 
 
 Hon 
 
 « 
 
 Justices. 
 
 vs. 
 
 ■ Order on Appeal from City Court. 
 
 The above named having appealed 
 
 to the Supreme Court from an order of the City Court entered 
 
 in the office of the Clerk of said Court, on the day 
 
 of 190 and the said appeal having been 
 
 heard and due deliberation had thereon, 
 
 It is hereby ordered, that the order so appealed from be 
 
 and the same is hereby with costs and disbursements. 
 
 Enter 
 
 J. S. C. 
 
 10 
 
146 FOEM. 
 
 Form— Order of Affirmance of a Judgment of 
 the Municipal Court. 
 
 At a term of the Supreme Court held for the hearing 
 of appeals from the City and Municipal Courts of 
 the First Judicial Department, at the County- 
 Court House in the City of New York, Borougb 
 of Manhattan, on the day of 190 
 
 Present — 
 
 Hon 
 
 a 
 ii 
 
 Justices. 
 
 vs. 
 
 Order of Af8rmancc of a Judg- 
 ment of the Mimicipal Court. 
 
 , y 
 
 The above named having appealed 
 
 to the Supreme Court from a judgment of the Municipal Court 
 
 of the City of New York, Borough of Manhattan,.' District^ 
 
 rendered on the day of 190 and the 
 
 said appeal having been heard and due deliberation having 
 been had thereon. 
 
 It is oedeeed and adjudged, that the judgment of the said 
 Municipal Court be and the same is hereby affirmed with costs 
 to the respondent. 
 
 Enter 
 
 J. S. C. 
 
FORM. 147 
 
 Form— Order of Reversal— Municipal Court 
 
 JudgMuent. 
 
 At a term of the Supreme Court held for the hearing 
 of appeals from the City and Municipal Courts of 
 the First Judicial Department, at the County 
 Court House in the City of New York, Borough 
 of Manhattan, on the day of 190 
 
 Present — 
 
 Hon 
 
 
 Justices. 
 
 TS. 
 
 Order of Reversal on Appeal from 
 '" Judgment of the Mnnicipal 
 Court, 
 
 The above named in this action 
 
 having appealed to the Supreme Court from a judgment of the 
 Municipal Court of the City of New York, Borough of Man- 
 hattan, District, rendered on the day of 
 
 190 and the said appeal having been heard and due delibera- 
 tion having been had thereon, 
 
 It is hereby ordered and adjudged, that the judgment 
 of the Municipal Court so appealed from be and the same is 
 hereby reversed and a new trial ordered with costs to the ap- 
 pellant to abide the event, said new trial to be had in the same 
 
 district in which the action was brought on the day 
 
 of 190 
 
 Enter 
 
 J. S. C. 
 
148 FORM. 
 
 Form — Order Granting or Denying Motion. 
 
 At a term of the Supreme Court held for the hearing 
 of appeals from the City and Municipal Courts of 
 the First Judicial Department, at the County 
 Court House in the City of New York, Borough 
 of Manhattan, on the day of 190 
 
 Present — 
 
 Hon 
 
 Justices. 
 
 vs. 
 
 » Order upon Motion. 
 
 The above named having by notice 
 
 of motion dated the day of 190 moved 
 
 for an order herein 
 Now upon reading and filing this affidavit of 
 
 verified the day of 190 
 
 verified the day of 190 
 
 in favor of said motion and the affidavits of 
 
 verified the day of 190 
 
 verified the day of 190 
 
 in opposition thereto. 
 
 It is ordered that said motion be and the same hereby 
 is . 
 
 Enter 
 
 J. S. O. 
 
Present — 
 Hon 
 
 FORM. 149 
 
 Form— On Motion to Dismiss Appeal. 
 
 At a term of the Supreme Court held for the hearing 
 of appeals from the City and Municipal Courts of 
 the First Judicial Department, at the County 
 Court House in the City of New York, Borough 
 of Manhattan- on the day of 190 
 
 Justices. 
 
 vs. 
 
 » Order on Motion to Dismiss 
 Appeal. 
 
 The above named appellant having appealed to the Su- 
 preme Court from a of the 
 
 Court and the respondent having moved to dismiss said appeal 
 by notice of motion dated the ..... day of 190 
 
 Now upon reading and filing the notice of motion and due 
 proof of service af the same and the affidavits of 
 
 verified the day of 190 
 
 in support of such motion and the affidavits of 
 
 verified the day of 190 
 
 in opposition thereto, on motion of , attorney 
 
 for said respondent. 
 
 It is ordered that the said motion be and the same is 
 hereby granted with $10 costs unless the appellant pays |10 
 costs and causes the 
 
 to be within days and argues the appeal 
 
 at the next term of this Court. 
 
 Enter 
 
 J. S. O. 
 
150 FORM. 
 
 Form— Order of Affirmance — Default in Ap- 
 pellant's Appearance. 
 
 At a term of the Supreme Court held for the hearing 
 of appeals from the City and Municipal Courts of 
 the First Judicial D'epartment, at the County 
 Court House in the City of New York, Borough 
 of Manhattan, on the day of 190 
 
 Present — 
 
 Hon 
 
 II 
 
 Justices. 
 
 vs. 
 
 Order of Afflrmance on Default 
 '' on Appeal from Judgment of 
 the Municipal Court. 
 
 The above named in this action 
 
 having appealed to the Supreme Court from a judgment of the 
 Municipal Court of the City of New York, Borough of Man- 
 hattan, District, rendered on the day of 
 
 190 and the said appeal having been brought on for argu- 
 ment and no one appearing for the appellant, on reading and 
 filing proof of due service of notice of argument on appellant 
 
 and on motion of , attorney for 
 
 the respondent and due deliberation having been had thereon, 
 
 It is ordered and adjudged, that the judgment so appealed 
 from be and the same is hereby affirmed : and that the respond- 
 ent recover of the appellant the costs of this appeal. 
 
 Enter 
 
 J. S. C. 
 
FOEM. 151 
 
 Form— Order Dismissing* Appeal for Failure 
 
 to File Brief. 
 
 At a term of the Supreme Court held for the hearing 
 of appeals from the City and Municipal Courts of 
 the First Judicial Department, at the County 
 Court House in the City of New York, Borough 
 
 of Manhattan, on the day of 190 
 
 Present — 
 
 Bon 
 
 (( 
 
 Justices. 
 
 vs. 
 
 _ Order Dismissing Appeal for 
 Failure to Serve Briefs. 
 
 The above named appellant in this action having appealed 
 
 "to the Supreme Court from a._ of the 
 
 Court of the Borough of Manhattan, rendered on the day 
 
 ■of 190 , and the return upon said appeal hav- 
 ing been duly filed and the appeal placed upon the calendar 
 ' for the hearing of appeals in the Appellate Term of said Court 
 for the month of 190 and the appellant hav- 
 ing failed to serve his briefs in accordance with the provisions 
 ■ot Rule V of the Rules of Practice for the hearing of appeals 
 from the City and Municipal Courts. 
 
 It is heeeby oedeeed and adjudged that the appeal from 
 
 isaid be and the same is hereby dismissed with 
 
 ^10 costs to the respondent herein. 
 
 Enter 
 
 J. S. C. 
 
152 FORM, 
 
 Form — Order on Motion for Re-Arg'ument or 
 Leave to Appeal. 
 
 At a term of the Supreme Court held for the hearing 
 
 of appeals from the City and Municipal Courts of 
 
 the First Judicial Department, at the County 
 
 . Court House in the City of New York, Borough 
 
 of Manhattan, on the day of 190 
 
 Present — 
 
 Hon 
 
 a 
 a 
 
 Justices. 
 
 TS. 
 
 Order on Motion for Re- Argnment 
 " or for Leave to Appeal to the 
 Appellate Division. 
 
 The judgment in the above entitled action having been 
 upon appeal by the Appellate Term, of the Su- 
 preme Court, and the having moved for a 
 
 re-argument of such appeal or for leave to appeal to the Appel- 
 late Division from the determination of said Appellate Term. 
 
 Now upon reading and filing the notice of Motion dated 
 
 the day of 190 and due proof of the 
 
 service thereof having been made and after reading and filing 
 the aflfldavits of 
 
 verified the day of 190 
 
 verified the day of 190 
 
 in support of said motion and the affidavits of 
 
 verified the day of 190 
 
 verified the day of 190 
 
 It is oedeeed that said motion be and the same hereby 
 is 
 
 Enter 
 
 J. S. C. 
 J. S. C. 
 J. S. C. 
 
FORM. 153 
 
 Form— Notice of Arg-ument (Appellate 
 Division) . 
 
 APPELLATE DIVISION OF THE SUPEEME COURT, 
 
 IN THE Department. 
 
 against 
 
 Notice of Argument. 
 
 Sir: 
 
 Please to take Notice, That the in 
 
 the above action will be brought on for Argument before this 
 
 Honorable Court, at a Term thereof, to be held at 
 
 on the day of at the 
 
 opening of the Court on that day, or as soon thereafter as 
 Counsel can be heard. 
 
 Dated the .day of 19. . . . 
 
 Yours, &c. 
 
 To Esq., ) 
 
 Attorney for ) Attorney for 
 
154 FOKM, 
 
 Form — Notice of Arg'ument (Appellate Teimi). 
 
 SUPEEME COUET— APPELLATE TEEM, 
 New York Oounty. 
 
 against 
 
 > Notice of Argument. 
 
 Sir: 
 
 Please to take Notice, Tliat the in 
 
 the above action will be brought on for Argument before the 
 Justices in this Honorable Court, at a Term thereof, to be held 
 
 at on the day of at 
 
 the opening of the Court on that day, or as soon thereafter as 
 ■Counsel can be heard. 
 
 Dated the day of 19. . ..., 
 
 Youj-s, &c. 
 
 To. 
 
 Attorney for 
 
 .Esq., 
 
 Attorney for 
 
FORM. 155 
 
 Torm — Order Granting Leave to Appeal from 
 Appellate Term. 
 
 SUPREME COURT— APPELLATE DIVISION, 
 
 FiEST Department. 
 
 Order Granting Leave to Ap- 
 ^ peal from Appellate Term. 
 
 An application having been made by the 
 
 to a Justice of the Appellate Division in the First Judicial De- 
 partment for leave to appeal to the said Appellate Division 
 from the determination of the Appellate Term of the Supreme 
 
 Court made on or about 
 
 reversing the judgment heretofore entered herein and granting 
 a new trial; and the said application having come on to be 
 heard, on reading and filing the notice of this application, 
 
 dated and the affidavit of 
 
 in support of said application, and the 
 
 affidavit of in opposition, 
 
 and after" hearing Mr of counsel 
 
 for plaintiff, and Mr of counsel for 
 
 defendant. 
 
 It is ordered that said application be and the same hereby 
 
 is granted upon filing with the Clerk of 
 
 this Court a stipulation that upon affirmance judgment abso- 
 Jute shall be rendered against , 
 
 Dated, 
 
156 FOKM. 
 
 Form— Affidavit of Service of Case or Papers. 
 
 y. 
 
 Afladavit of Service of Ca e 
 > or Papers. 
 
 County of New York, ss. : 
 
 being duly sworn, deposes and says : 
 
 I am employed in the office of , at Xo. 
 
 Street, New York City ; that on the 
 
 day of , 1907, the deponent then being 18 years 
 
 of age and upwards, served upon , the at- 
 torney for the respondent in this action, three copies of 
 the papers on appeal, by delivering them to and leaving with 
 
 him at his office No Street, Borough of 
 
 , New York City. 
 
 Sworn to before me, this . . . . 
 day of , 1907. 
 
FORM. 
 
 157 
 
 Form— Affidavit of Service of Case or Papers 
 Upon Person in Cliarsre. 
 
 y. 
 
 Affidavit of Service of Case or 
 Papers Upon Person in Charge. 
 
 County of New York, ss. : 
 
 being duly sworn, deposes and says : 
 
 I am employed in the law office of , at 
 
 No , New York City ; that on the 
 
 day of , 1907, deponent then being 18 years 
 
 of age and upwards, served three (3) copies of the 
 
 , on appeal upon , the at- 
 torney for the plaintiff -respondent, by delivering them to a 
 
 person in charge of the office of said attorney, at No 
 
 , New York City, and leaving same with him in 
 
 the absence of the said attorney therefrom. 
 
 Sworn to before me, this . . . . 
 day of , 1907. 
 
158 FOEM. 
 
 Form— Note of Issue* ) 
 
 SUPEEME COUET, 
 
 Appellate Division [oe Term]. 
 
 Plaintiff-Responden t, 
 
 V. 
 
 Defendant- Appellant. 
 
 >Note of Issue. 
 
 Note of issue for Term, 1907, 
 
 Appeal from judgment [or order] of Hon , 
 
 Justice of Court. 
 
 Notice of appeal, filed day of , 1907.. 
 
 Dated New York, , 1907. 
 
 Attorney for Defendant-Appellant, 
 
 Street, 
 
 New York City- 
 
 Attorney for Plaintiff-Eespondent. 
 
 Filed by 
 
 Attorney for Defendant-Appellant. 
 
INDEX. 
 
 (The references are to pages.) 
 
 Page- 
 ABANDONMENT OF APPEAL. 
 
 Court below may declare appeal abandoned 82 
 
 Order declaring appeal abandoned not reviewable 82 
 
 Remedy when appeal declared abandoned 82. 
 
 ABSTRACT OR ACADEMIC QUESTIONS. 
 
 Not reviewable 82 
 
 AFFIRMANCE UPON DEFAULT IN APPEARANCE 11 
 
 AMENDMENT AND MODIFICATION. 
 
 Judgment or order 88- 
 
 Notice of appeal 83 
 
 Parties 89- 
 
 Pleadings 8 T 
 
 (See also Judgment; Death of appellant or respondent; 
 Modification on Appeal; Notice of Appeal; Parties; 
 Pleadings.) 
 
 AMENDED RETURN 20' 
 
 (See also Return.) 
 
 APPEARANCE. 
 
 Costs right to depend upon 108 
 
 Default in appearing 52 
 
 APPEALABLE ORDERS. 
 
 City Court orders appealable 63 
 
 City Court orders non-appealable 64 
 
 Discretionary orders 65 
 
 Municipal Court orders appealable 61 
 
 Municipal Court orders non-appealable 62 
 
 Order denying motion to open default 71 
 
 (See also Orders Appealable and Non- Appealable. ) 
 
 APPELLATE DIVISION — FIRST DEPARTMENT. 
 
 Appeal from Appellate Term to Appellate Division 11 9' 
 
 Appeal from determination of Appellate Term 119 
 
 Application for leave (to Appellate Term) 34; 119 
 
 Application for leave (to Appellate Division) 120 
 
 From what appeal taken 119 
 
 159 
 
160 INDEX. 
 
 APPELLATE DIVISION— FIRST DEPARTMENT-^ontinned. Page 
 
 How appeal is taken 119 
 
 Practice after record is filed 132 
 
 Record upon appeal (judgment or order of the City Court) 121 
 
 Record upon appeal (judgment or order of the Municipal Court) 128 
 
 Remittitur from Appellate Division to lower Court 135 
 
 When and in what time appeal must be taken . . • 121 
 
 (See also Leave to Appeal.) 
 
 APPELLATE DIVISION — SECOND DEPARTMENT. 
 
 Appeals — where heard 136 
 
 Argument 140 
 
 Briefs '. 140 
 
 Calendar practice 137 
 
 Decision (orders upon) 142 
 
 Decision of the Appellate Term — effect of — comity 142 
 
 Fees of Clerk '. 142 
 
 Historical sketch 136 
 
 Jurisdiction of -. 13 6 
 
 Motions 140 
 
 Notice of argument 139 
 
 Orders of 142 
 
 Practice motions in 142 
 
 Practice similar to Appellate Term in the First Department. ... 142 
 
 Record on appeal 139 
 
 Return 139 
 
 Return — how compelled 139 
 
 Sources 136 
 
 Terms 137 
 
 [APPELLATE TERM. 
 
 Formation 5 
 
 Jurisdiction 3 
 
 Origin 1 
 
 Powers of 6 
 
 Terms — when and where held 5 
 
 iiRGUMENT. 
 
 Appeals may be submitted or argued 54 
 
 Submission of briefs without argument favored 55 
 
 Time allowed for argument 55 
 
 (See also Notice of Argument.) 
 
 ATTACHMENT TO COMPEL RETURN 28 
 
 (See also Motions.) 
 
INDEX. 161 
 
 Page 
 
 ATTACHMENT TO COMPEL RETURN PRACTICE UPON 30 
 
 (See also Motions.) 
 
 ATTORNEY'S LIEN CANNOT BE AFFECTED BY SETTLEMENT 
 
 AFTER APPEAL 59 
 
 BILL OF EXCEPTIONS. 
 
 Appeal upon 99 
 
 BRIEFS. 
 
 City Court must be printed 54 
 
 Failure of appellant to file and serve 53 
 
 Failure of respondent to file and serve 53 
 
 How printed (Rule 43) 54 
 
 Municipal Court may be typewritten 54 
 
 Numbered — must be 54 
 
 Number — of City Court briefs to be filed 53 
 
 Number — of Municipal Court briefs to be filed 53 
 
 Service of 53 
 
 Time — when appellant to file and serve 53 
 
 Time — when respondent to file and serve 53 
 
 CALENDAR PRACTICE. 
 
 Appeals from City Court heard first 54 
 
 Appeals must be argued or submitted when reached 54 
 
 Cases not set down for a particular day 54 
 
 Fee for filing briefs to be paid 12 
 
 Motions — no oral argument upon 12 
 
 (See also Briefs.) 
 
 CASE. 
 
 Failure to file and serve 86 
 
 Re-settlement of 45 
 
 Re-settlement of decision of trial judge controlling 45 
 
 Settlement of (City Court Appeal) 8; 13 
 
 Settlement of (Municipal Court Appeal) 8; 20 
 
 (See also Failure to Print and Serve case; Return; Dis- 
 missal; Motions.) 
 
 CERTIFICATE. 
 
 Clerk's (City Court appeal judgment) -. IS 
 
 Clerk's (City Court appeal order) 15 
 
 (See also Appellate Division, First Department; Forms.) 
 
 CERTIFICATE AS TO EVIDENCE. 
 
 Case must contain — to review questions of fact 95 
 
 (See also Requisites to Review Questions of Fact and Law.) 
 
 11 
 
162 INDEX. 
 
 CERTIFICATION. Page 
 
 Of case or papers 1* 
 
 Defective — objection to how raised 1* 
 
 Lacls; of l* 
 
 Waiver of 16 
 
 COMPLIANCE WITH JUDGMENT OR ORDER. 
 
 Effect of on right to appeal 105- 
 
 CONSENT TO AFFIRMANCE. 
 
 Appeal from (City Court Judgment or order) 60' 
 
 Appeal from (Municipal Court Judgment or order) 60 
 
 CONSENT TO REVERSAL. 
 
 Appeal from City Court Judgment or order 60 
 
 Appeal from Municipal Court Judgment or order 60 
 
 COSTS. 
 
 Appearance — right to depends upon lOS 
 
 Assignee of Judgment — when chargeable against 90 
 
 Dismissal for failure of both parties to prosecute 112 
 
 Judgment for — separate must be entered 117 
 
 Prevailing party may tax 112 
 
 Prevailing party who is 112 
 
 Separate Appeals. 
 
 heard together 107 
 
 Judgment and order independently appealed from Ill 
 
 Several Defendants 
 
 uniting in one appeal lOd' 
 
 when costs to be allowed 108 
 
 when costs to be disallowed 108 
 
 Stipulation by respondent consenting to reversal 112 
 
 Submission without argument 115 
 
 Taxation of (Municipal Court) IIS 
 
 Transcript — separate required 117 
 
 Withdrawal of appeal llS 
 
 (See also. Costs Absolute; Costs Discretionary; Costs Inter- 
 locutory Judgment; Costs Order; Costs amount of; 
 Costs upon motions; Motions.) 
 
 COSTS ABSOLUTE. 
 
 City Court Judgment, aflSrmance or reversal 106 
 
 Municipal Court Judgment, affirmance or reversal Ill 
 
 COSTS DISCRETIONARY. 
 City Court Judgment 
 
 discretionary when lOT 
 
 modification of judgment 108 
 
INDEX. 163 
 
 COSTS DISORETIONARY-Oontinued. Page 
 
 neither party correct In practice 107 
 
 offset when both parties appeal 107 
 
 Municipal Court Judgment 112 
 
 COSTS TO ABIDE THE EVENT. 
 
 Meaning and effect of 109 
 
 Taxation of — who may eventually tax 109 
 
 COSTS TO APPELLANT TO ABIDE THE EVENT. 
 
 Meaning and effect of 109 
 
 Taxation of — who may eventually tax 109 
 
 Taxation of — respondent succeeding on new trial may not 110 
 
 COSTS— INTERLOCUTORY JUDGMENT. 
 
 Absolute or discretionary when 110 
 
 COSTS— ORDER. 
 
 Order affirmed with costs may be deducted from costs to suc- 
 cessful party Ill 
 
 New Trial 
 
 affirmance of order denying 110 
 
 newly discovered evidence, order granting or denying Ill 
 
 order denying — no costs where appeal is from judgment. ... Ill 
 
 separate appeal from judgment — costs allowable Ill 
 
 Municipal Court order 112 
 
 When absolute or discretionary 112 
 
 COSTS — WITHOUT, COSTS. 
 
 Meaning and effect . . . . , 110 
 
 Neither party correct in practice 107 
 
 Neither party wholly succeeding 107 
 
 COSTS — AMOUNT OP. 
 
 City Court Judgment 114~^ 
 
 City Court Judgment Interlocutory 115 
 
 Municipal Court Judgment 116 
 
 City Court order 115 
 
 Municipal Court order 112; 116 
 
 same as upon judgment 112;116 
 
 summary proceedings — final order in 112 
 
 Submission without argument 115 
 
 Withdrawal of appeal .' 115 
 
164 INDEX. 
 
 COSTS UPON MOTIONS. - Page 
 
 Appellate Term 113 
 
 Ex parte motions 113 
 
 Extension of time — upon motion for 114 
 
 Granted although not asked for in notice 113 
 
 Moving party when chargeable with 113 
 
 Offset upon judgment — when 114 
 
 Provision for must be contained in order 113 
 
 Refused — when 113 
 
 Upon default — when not asked for in notice 114 
 
 DEATH OP APPELLANT OR RESPONDENT. 
 
 Amending title of appeal 92 
 
 Amending title of appeal — lunatic, death of 92 
 
 Order substituting 91 
 
 application for 93 
 
 assignee for benefit of creditors 93 
 
 administratrix 92 
 
 administratrix when not substituted 93 
 
 devisee 93 
 
 foreign executor 93 
 
 must be entered 92 
 
 respondent 94 
 
 respondent must be entered 94 
 
 Practice and proceedings upon death 91 
 
 (See also. Parties — Amendment and Substitution of.) 
 
 DECISIONS. 
 
 Appellate Term ^ 56 
 
 Appellate Division (2nd Dept.) 142 
 
 DEFAULT IN APPEARING. 
 
 Failure of Appellant to appear 52 
 
 Failure of Respondent to appear 52 
 
 DEFAULT. 
 
 (See Motions.) 
 
 DEFAULT JUDGMENT — HOW FAR REVIEWABLE ON APPEAL. 
 
 Default judgment defined 67 
 
 after appearance by both parties 70 
 
 upon plaintiff's failure to appear 69; 70 
 
 General Appearance — effect of — upon appeal 68 
 
 Non-service of summons — 
 
 conflicting affidavits as to service 72 
 
 special appearance and effect of 73 
 
INDEX. 165 
 
 DEFAULT JUDGMENT— Continued. Page 
 
 motion to open default for failure to serve summons 71 
 
 practice on appeal — upon affidavits in Appellate Court 73 
 
 independent appeal for failure to serve summons 73 
 
 Reversal of order opening default — effect upon judgment ren- 
 dered 70 
 
 DIRECTION OF VERDICT. 
 
 Both parties moving for — effect of 101 
 
 Neither can request permission to go to jury after decision of 
 
 Court is announced 102 
 
 DISCRETIONARY ORDERS — APPEAL PROM. 
 (See Appealable Orders.) 
 
 DISMISSAL FOR FAILURE TO PROSECUTE. 
 
 Case — failure to serve (City Court) 27 
 
 Return — failure to file (Municipal Court) 28 
 
 (See also. Case; Costs; Motions; Return.) 
 
 DISMISSAL — JUDGMENT ENTERED AT APPELLANT'S REQUEST 
 
 — NOT REVIEWABLE 80; 103 
 
 DISMISSAL OR NON-SUIT (EFFECT OP ABSENCE OP MOTION 
 
 FOR) 102 
 
 ESTOPPEL OP RIGHT TO APPEAL. 
 
 (See Waiver of Right to Appeal.) 
 
 EVIDENCE. 
 
 (See Objection — Questions that may not be raised for first 
 time on appeal; Requisites for reviewing questions of 
 fact.) 
 
 EXCEPTION AND EXCEPTIONS. 
 
 Bill of exceptions; appeal upon 99 
 
 Failure to take 80 
 
 to denial of motion for new trial 98 
 
 Findings — exceptions to 100 
 
 failure to file and relief 101 
 
 general insufiBcient 101 
 
 unnecessary to review questions of law 101 
 
 unnecessary where certificate as to evidence is made 101 
 
 General insufficient 80 
 
 to findings 101 
 
 (See also Questions that cannot be raised; Requisites for 
 Reviewing Questions of Fact and Law.) 
 
166 INDEX. 
 
 Page 
 EXCEPTIONS ORDERED TO BE HEARD IN THE FIRST INSTANCE. 
 
 Appellate Term no power to hear 82 
 
 EXTENSION OF TIME TO APPEAL. 
 
 Court cannot extend by amendment or otherwise 84 
 
 Death of persons entitled to appeal 84 
 
 (See also Death of Appellant or Respondent.) 
 
 FAILURE TO PRINT AND SERVE CASE. 
 (See Case; Motions.) 
 
 FILING CASES AND PAPERS ON APPEAL. 
 (See Case; Motions; Return.) 
 
 FILING MOTION PAPERS. 
 (See Motions.) 
 
 FINDINGS. 
 
 Must be made and entered upon trial before Court 100 
 
 Must be made and entered upon trial before Referee 100 
 
 (See also Exception and Exceptions.) 
 
 FORMS. 
 
 Affidavit of service of case or papers '. 156 
 
 on person in charge 157 
 
 Certificate of Clerk on appeal from Appellate Term to Appellate 
 
 Division (upon appeal from judgment) 130 
 
 Certificate of Clerk on appeal from order of City Court 15 
 
 Clerk's Certificate on appeal from Appellate Term to Appellate 
 
 Division (upon appeal from order) 122 
 
 Note of issue 158 
 
 Notice of Appeal to Appellate Division from Appellate Term. ... 129 
 Notice of Appeal to the Appellate Division from Appellate Term 
 
 (when leave granted by Appellate Term) 126 
 
 Notice of Appeal to the Appellate Division from Appellate Term 
 
 (when leave granted by Appellate Division) 124 
 
 Notice of argument^Appellate Division 153 
 
 Notice of argument — Appellate Term 154 
 
 Order of affirmance of judgment of City Court " 143 
 
 Order of affirmance of judgment of Municipal Court 146 
 
 Order affirmance — default in appearance 150 
 
 Order of affirmance or reversal of order of City Court 145 
 
 Order dismissing — for failure to file briefs 151 
 
 Order granting or denying motion of Appellate Term 148 
 
 Order granting leave to appeal to Appellate Division (entered by 
 
 Justice of Appellate Division) 127; 155 
 
INDEX. 167 
 
 PORMS— Continued. Page 
 
 Order granting re-argument or leave to appeal 152 
 
 Order on motion to dismiss appeal 14 9 
 
 Order of reversal — judgment of City Court 144 
 
 Order of reversal — judgment of Municipal Court 147 
 
 Order settling case on appeal from judgment of the City Court. . 17 
 
 Stipulation on appeal from judgment of City Court 18 
 
 Stipulation waiving certification on appeal from judgment of City 
 
 Court 16 
 
 Stipulation waiving certification on appeal from order of the City 
 
 Court 16 
 
 Stipulation waiving certification on appeal to Appellate Division 
 
 (appeal from judgment) 131 
 
 Stipulatio'n waiving certification on appeal to Appellate Division 
 
 (upon appeal from order) 123 
 
 INDEPENDENT APPEALS. 
 
 Cannot be incorporated in one appeal book 19 
 
 INCOMPLETE RETURN. 
 
 (See Motions; Return.) 
 
 JUDGMENT. 
 
 Appeal from judgment of City Court 14 
 
 Appeal from judgment of Municipal Court 20 
 
 Collection of portion — pending appeal 105 
 
 Costs — separate judgment for to be entered 117 
 
 Default judgment 67 
 
 how far reviewable 67 
 
 • Dismissal — entered at appellant's request 103 
 
 Modification — 
 
 correcting erroneous 89 
 
 directing proper form 88 
 
 increasing amount of 89 
 
 inserting provision for arrest 89 
 
 when not modified or amended 89 
 
 Payment of — pending appeal 105 
 
 Satisfaction of pending appeal 105 
 
 Void — appealable 103 
 
 (See also Amendment and Modification; Costs; Amount of 
 Costs; Default Judgment; Questions Reviewable; 
 Requisites for Reviewing Questions.) 
 
 JUDGMENT — DEFAULT. 
 
 (See Default Judgment.) 
 
 JUDGMENT — MODIFICATION OF. 
 (See Judgment.) 
 
168 INDEX. 
 
 JUDGMENT ROLL. Pag© 
 
 Appeal upon 9ft 
 
 tiEAVE TO APPEAL TO THE APPELLATE DIVISION 
 (1st Department). 
 
 Motion for 30 
 
 Notice of motion and practice 3& 
 
 Stipulation exacted as conditioned of granting 35- 
 
 When granted or refused 35. 
 
 (See also Appellate Division, First Department; Motion for 
 Leave to Appeal.) 
 
 LEAVE TO APPEAL TO COURT OF APPEALS 
 (2nd Department). 
 
 Motion for 141 
 
 Notice of motion upon 141 
 
 Record upon — if granted 141 
 
 When granted 141 
 
 MODIFICATION ON APPEAL. 
 
 Order — costs by inserting provision for 8S 
 
 Order — summary proceedings — final order 88 
 
 when not modified 8S 
 
 (See also Amendment and Modification; Judgment.) 
 
 MINUTES — LOST OR DESTROYED. 
 
 Appeal heard on affidavits 21 
 
 MOTIONS GENERALLY. 
 
 Affidavits upon 2S 
 
 Affidavits replying 23. 
 
 Calendar practice 51 
 
 Notice to be five days 11; 2T 
 
 Notice for resettlement of order — two days 12 
 
 Note of Issue must be filed 27 
 
 Note of issue; failure to file 2T 
 
 Numbered — must be to correspond with case it affects 51 
 
 Papers — filing 51 
 
 Papers — filing — must be filed before first day of term 12; 51 
 
 Reqess motions 24, 41, 42, 50 
 
 I Stay pending hearing of -47 ; sa 
 
 Term motions 24;25 
 
 (See also. Argument; Briefs; Recess motions; Term mo- 
 tions; Stay of Proceedings; and for various motions, 
 see appropriate subdivisions under particular motion 
 
 , headings. ) 
 
INDEX. 169f 
 
 MOTION FOR AMENDED RETURN. Page 
 
 How procured 45 
 
 Jurisdiction of Appellate Term to compel 46 
 
 May be ordered by Court of its own motion 47 
 
 Order for — -what it directs 47 
 
 When application should be made 47 
 
 MOTION COMPELLING RETURN BY JUSTICE. 
 
 Notice of motion for 2S 
 
 Notice of motion for, upon whom served 28 
 
 MOTION CORRECTING PAPERS ON APPEAL. 
 
 Motion to correct by returning papers to City Court 44 
 
 To procure amended action from Municipal Court 45 
 
 To remit papers to City Court for correction 44 
 
 MOTION; DEFAULT OPENING OR RELIEVING FROM NEGLECT. . 43- 
 Application to open default and to be relieved from neglect dis- 
 tinguished 43- 
 
 Must be made to Appellate Court 43- 
 
 MOTIONS FOR DISMISSAL OF APPEAL FOR FAILURE TO PRINT 
 
 OR SERVE PAPERS 25- 
 
 Affidavit upon; What to contain 2& 
 
 Notice; Five days required to dismiss 2 5 
 
 Papers to be filed on first day of term 25- 
 
 MOTION FOR DISMISSAL FOR FAILURE TO FILE RETURN FROM 
 MUNICIPAL COURT. 
 
 Affidavits upon what to contain 27" 
 
 Note of issue of motion must be filed 27 
 
 Note of issue of motion, failure to file 27 
 
 Notice of motion to be five days 27". 
 
 Order upon, need not be served upon moving party 2T 
 
 MOTION EXTENDING TIME TO COMPLY WITH ORDER 42: 
 
 Order operative unless application for relief is made 43 
 
 MOTION FOR LEAVE TO APPEAL OR FOR RE-ARGUMENT 30 
 
 Notice of motion to be five days 35 
 
 Practice upon 35- 
 
 Stipulation exacted as a condition of granting leave 35 
 
 To whom application made 34 
 
 When granted or refused 35. 
 
170 INDEX. 
 
 Page 
 
 MOTION — PERFECTING APPEAL 43 
 
 Application for may be made to either Appellate Term or City 
 
 Court 44 
 
 From Municipal Court — must be to Appellate Term 44 
 
 Notice of appeal not served upon all necessary parties — 
 
 relief 43, 83, 85 
 
 MOTION FOR RE- ARGUMENT OR LEAVE TO APPEAL 30 
 
 Briefs upon 32 
 
 Notice of motion to be five days 30 
 
 Order to show cause where five days' notice cannot be given. . . . 
 
 Practice upon 35 
 
 Re-argument when granted 32 
 
 Re-argument when denied 33 
 
 Stay — pending motion 31 
 
 When to be made 30; 32 
 
 MOTIONS; RECESS MOTIONS . 41 
 
 May be heard any time during the term 24 
 
 May be heard also on the first day of term 42 
 
 Notice of motion upon 50 
 
 Order to show cause upon 50 
 
 Order to show cause upon — by whom made 51 
 
 Recess and Term motions distinguished 24 
 
 What are 41 
 
 When heard 24 
 
 MOTION FOR RESTITUTION. 
 
 Cannot be enforced by contempt proceedings 39 
 
 Jurisdiction to entertain 3 6 
 
 Notice of motion; to be on six days' notice 37 
 
 Notice of motion returnable on first day of Term 37 
 
 Practice differs from other motions 38 
 
 Power to order discretionary 37 
 
 What must be shown to obtain restitution 40 
 
 When granted or refused 38-41 
 
 MOTION FOR STAY OF PROCEEDINGS — PENDING APPEAL 47 
 
 Application for how and to whom made 48 
 
 Jurisdiction to grant 47 
 
 Upon appeal from judgment of City Court 48 
 
 order of City Court 47 
 
 judgment of Municipal Court 48 
 
 order of Municipal Court 49 
 
 Appellate Term to Appellate Division 49 
 
 When stay granted 50 
 
 refused 5j9 
 
INDEX. 171 
 
 Page 
 
 MOTIONS; TERM MOTIONS 24; 25 
 
 Term and recess motions distinguished 24 
 
 Term motions when heard 24 
 
 (See also particular headings under subdivisions of 
 Motions.) 
 
 NEW TRIAL. 
 
 Motion for 97 
 
 Order denying appealable 98 
 
 appeal from — what may be reviewed 99 
 
 appeal from — independently of appeal from judgment 99 
 
 exception to must be taken 98 
 
 failure to enter 98 
 
 must be entered to review question of fact 98 
 
 grounds must be stated in 98 
 
 Practice — when new trial granted by Appellate Term (City Court 
 
 judgment) 59 
 
 Practice — when new trial granted by Appellate Term (Municipal 
 
 Court judgment) 58 
 
 (See also Costs on Order; Requisites for Reviewing Ques- 
 tions. ) 
 
 NON-SUIT. 
 
 Absence of motion for — effect of 102 
 
 Motion for — to be made 102 
 
 Order — granting not appealable 81 
 
 Inferences on appeal 81 
 
 plaintiff entitled to most favorable construction 81 
 
 granting motion for 81 
 
 (See also Requisites for Reviewing Questions.) 
 
 NOTICE OF APPEAL. 
 
 Amendment of 84 
 
 inaccuracy may be amended 84 
 
 when allowed 84 
 
 when disallowed 85 
 
 verbal notice cannot be 85 
 
 Correcting — including order or judgment not recited — not per- 
 mitted 85 
 
 including statement of Interlocutory judgment not permitted 85 
 
 striking out erroneous recital 84 
 
 striking out erroneous recital of Court 85 
 
 striking out erroneous subscription 84 
 
 striking out title improper and inserting proper 8 5 
 
 Defects in 84 
 
 waiver of .• 84 
 
172 INDEX. 
 
 NOTICE OF APPEAL— Continued. 
 
 Service of— Page 
 
 upon whom served (City Court judgment) 8J 
 
 upon whom served (Municipal Court judgment) 83- 
 
 death of party 84 
 
 extension of time in which cannot be granted by Court 84 
 
 failure to serve — how perfected 83 
 
 failure to serve — remedy 83 
 
 mode of 83 
 
 omission of subscription by attorney 8 S 
 
 time for — when begins to run 83 
 
 Subscription — lack of 8& 
 
 Sufficiency of . 84 
 
 Sufficiency of — verbal notice Insufficient 85- 
 
 Time — for service of — when begins to run 83- 
 
 Time — for service of — when begins to run — on appeal by leave 
 
 to Appellate Division 121 
 
 (See also Motions — Perfecting appeal.) 
 
 NOTICE OP ARGUMENT. 
 
 Must be served and filed 22;52' 
 
 Notice must be eight days 22 ; 52' 
 
 New Notice — for successive terms unnecessary 53 
 
 Service of 2 2; 53 
 
 failure to serve 22 ; 53- 
 
 proof of must be filed 53 
 
 proof of — failure to file 22 ; 53. 
 
 OBJECTION. 
 
 Effect of where no grounds stated 103- 
 
 Not available unless grounds stated 103-104 
 
 ORDERS APPEALABLE AND NON-APPEALABLE. 
 
 City Court appealable 63 
 
 City Court non-appealable 64' 
 
 Discretionary — when appealable 65- 
 
 Municipal Court appealable 61 
 
 Municipal Court non-appealable 62 
 
 ORDERS OF APPELLATE DIVISION — 
 First Department. 
 
 Granting leave to appeal 120' 
 
 form of 127; 154 
 
 Remitting return, after decision 135- 
 
 Second Department. 
 
 Court enters its own orders 142 
 
 Order of reversal,, granting new trial — practice 142; 
 
INDEX. 173 
 
 ORDERS OF APPELLATE TERM. Page 
 
 Court makes and enters its own orders 57 
 
 Entry and practice 58 
 
 Extending time to file return 2 8 
 
 Granting leave to file return 2 8 
 
 Remittitur — order remitting return to lower court after decision 58 
 
 Re-settlement of — motion for 57 
 
 Reversal — granting new trial — practice 58 
 
 (See also Motions.) 
 
 PAPERS. 
 
 Appeal from Order — all papers recited in order must be printed. 13 
 
 Justice's determination as what papers used — not reviewable 13 
 
 record constituting 13 
 
 Certification of 14 
 
 waiver 16 
 
 PAPERS AND PRINTING. 
 
 Briefs — how printed 54 
 
 Papers — how printed 13;26 
 
 Non-compliance with Rule 43 26 
 
 Failure to print and serve 25 
 
 PARTIES. 
 
 Defined and designated 89 
 
 Succeeding to interest of 89, etc. 
 
 Who may appeal 90 
 
 PARTIES — AMENDMENT AND SUBSTITUTION OF. 
 
 Parties — amendment and substitution of 89 
 
 assignment pending appeal 90 
 
 assignment pending appeal — costs 90 
 
 deatli of appellant or respondent 90 
 
 succeeding to interest of appellant 89; 90 
 
 transfer of interest 90 
 
 PAYMENT OP JUDGMENT — PENDING APPEAL. 
 
 Effect of 105 
 
 Satisfaction of — effect 105 
 
 PERFECTING APPEAL. 
 
 (See Motions — Perfecting Appeal.) 
 
 PLEADINGS— AMENDMENT AND MODIFICATION OF. 
 
 Allowed and disallowed — when 87 • 88 
 
 Appellate Court has power to treat pleadings as having been ' 
 amended in court below 87 
 
174 INDEX. 
 
 PLEADINGS— Continued. Page 
 
 Answer — treated as amended 88 
 
 Complaint — treated as amended 87 
 
 Complaint — changing cause of action — not amended 88 
 
 May he amended by Appellate Court — even though no application 
 
 made in court below 87;89 
 
 QUESTIONS REVIEWABLE ON APPEAL. 
 
 What question reviewable 74 
 
 not reviewable 74-82 
 
 QUESTIONS THAT MAY BE RAISED FOR FIRST TIME ON 
 APPEAL. 
 
 Constitutionality — of Statute 74 
 
 Judgment — validity of 74 
 
 Jurisdiction — of subject matter 74 
 
 QUESTIONS THAT CANNOT BE RAISED FOR FIRST TIME ON 
 APPEAL. 
 
 General Rule — as to what must be raised in court below 75 
 
 Action — Commencement — Time of 78 
 
 commencement — prematurely brought 78 
 
 form of 7& 
 
 wrong district (Municipal Court) 79 
 
 Answer — insufficiency of 76; 77 
 
 (See also below; Counterclaim; Defenses.) 
 
 Chattel Mortgage — invalidity of 75 
 
 Charge; Judge's — -not excepted to 80 
 
 general exceptions only 80 
 
 Complaint — insufficiency of 75 ; 79 
 
 Counterclaim — insufficiency of 76 
 
 insufficient reply to 76 
 
 validity of 81 
 
 Dismissal — entered at appellant's request 80 
 
 Defenses. 
 
 Failure to plead 7T 
 
 infancy 78 
 
 payment 77 
 
 Statute of Frauds 75; 77 
 
 Statute of Limitations 77; 78 
 
 usury 80 
 
 Evidence. 
 
 Admissibility or competency 76 
 
 Agency — insufficient proof of 8X 
 
 Damages — failure to proof 76 
 
 Defect in or insufficiency of 80 
 
INDEX. 175 
 
 QUESTIONS THAT CANNOT BE RAISED FOR FIRST TIME ON 
 
 APPEAL -Continued. Page 
 
 Evidence — Continued. 
 
 Exception, failure to take to admissibility 80 
 
 Failure to move to strike out answer 77 
 
 Improper or incompetent answer to question 76' 
 
 Inadmissibility under pleadings 76 
 
 Insufficiency of — where no motion for non-suit is made. ... 79 
 
 Qualification of witness to testify as expert 79 
 
 Value improperly proven 
 
 Weight of 78 
 
 Exception — when not taken 80 
 
 Irregularity or Insufficiency — not raised in court below 81 
 
 Mechanics' Lien — defective — verification of 75 
 
 Notice of Protest— Insufficiency of 80 
 
 Statutory — failure to serve in Summary Proceedings 81 
 
 Parties — proper or improper 
 
 defect of 79 
 
 non-joinder of 75 
 
 Pleadings — Amendment of 79 
 
 Variance between pleadings and proof 76-78 
 
 Proof — Failure of 77 
 
 where no motion for non-suit is made 77 
 
 Variance — between pleadings and proof 76; 78 
 
 (See also above under same headnote — Evidence.) 
 
 Questions not raised at the trial 80 
 
 Replevin — Wrongful seizure 75 
 
 Value improper proof as to 75 
 
 REARGUMENT OR LEAVE TO APPEAL. 
 (See Motions — Reargument.) 
 
 RECORD ON APPEAL. 
 
 Appeal from judgment 13 
 
 Appeal from order 13 
 
 Certification of 14 
 
 Filing of i 13 
 
 (See also Case; Motions; Papers; Return.) 
 
 RECORD — MATTER NOT APPEARING IN. 
 
 Affidavits attached to brief not considered 104 
 
 Letter from Justice not considered 104 
 
 Matters of record may be supplied to support judgment 104 
 
 Record evidence of incorporation may be supplied 104 
 
 Records before Appellate Court — judicial notice of 104 
 
 REMISSION OF RECORD FOR CORRECTION. 
 (See Motions.) 
 
176 INDEX. 
 
 HEMITTITUR. Page 
 
 From Appellate Term 58 
 
 City Court judgment or order 58 
 
 Municipal Court judgment or order 58 
 
 From Appellate Division (First Department) 135 
 
 City Court judgment or order 135 
 
 Municipal Court judgment or order 135 
 
 From Appellate Division (Second Department) .■ 142 
 
 fee for 142 
 
 REQUISITES TO REVIEW QUESTIONS OF FACT 95 
 
 Certificate as to evidence 95 
 
 trial by Court or Referee 95; 97 
 
 necessity for 95 
 
 absence of 96 
 
 , when unnecessary 96 
 
 upon appeal from judgment on verdict 96 
 
 review of exception to direction of verdict 97 
 
 form of 97 
 
 aflSdavit not a substitute for 97 
 
 amendment of case by inserting 97 
 
 Motion for New Trial — Order Denying it. 
 
 failure to enter 98 
 
 failure to except to denial of 98 
 
 grounds to be stated 98 
 
 necessity for 98 
 
 Motion for Dismissal or Non-Suit. . 
 
 absence of precludes review of sufficiency or weight of 
 
 evidence 102 
 
 Municipal Court judgment 103 
 
 Municipal Court judgment only defects raised on motion 
 
 reviewable 103 
 
 REQUISITES TO REVIEW QUESTIONS OF LAW. 
 
 Appeal from judgment only 99 
 
 order denying new trial only 99 
 
 Appeal may be taken separately from judgment 99 
 
 Appeal upon bill of exceptions 99 
 
 Appeal upon judgment roll only 99 
 
 REQUISITES FOR REVIEWING QUESTIONS OF FACT AND LAW. 
 
 Trial by Court or Referee 99 
 
 findings must be made and entered 100 
 
 exceptions to findings 100 
 
 (See also Findings and Exception and Exceptions.) 
 
 RESTITUTION. 
 
 (See Motion for Restitution.) 
 
INDEX. 177 
 
 RETURN (MUNICIPAL COURT APPEALS.) Page 
 
 Amendment of — and how procured 20; 45 
 
 Conclusive 22;46 
 
 Filing of 22 
 
 failure to 2 7 
 
 time for 27 
 
 Incomplete or incorrect — practice 22 
 
 Justice to make return and mode of 20 
 
 what to contain 20 
 
 Exhibits must be annexed 4 6 
 
 Minutes lost — how appeal heard 21 
 
 Time of rendition of judgment — return conclusive 46 
 
 (See also Motions; an4 particular headings under Motions.) 
 
 REVERSAL BY DEFAULT — NOT PERMITTED 11 
 
 RULES. 
 
 Appellate Division — First Department. 
 
 Argument — Calendar 133 
 
 Calendar — Filing papers, etc 134 
 
 Notice of argument — filing of papers, etc 133 
 
 Permission to appeal from Appellate Term 120 
 
 Submission of appeal 135 
 
 Submission of appeal and briefs 134 
 
 Terms for hearing of appeals 132 
 
 Appellate Term. 
 
 (See Table of Contents at Page V.) 
 
 STAY AND STAY OF PROCEEDINGS. 
 
 (See Motions for Stay of Proceedings.) 
 
 SUMMONS NON-SERVICE OF. 
 
 (See Default Judgment.) 
 
 VOID JUDGMENT. 
 
 Appeal may be from 103 
 
 Municipal Court 103 
 
 TIME. 
 
 To appeal begins to run — when 84 
 
 how limited 84 
 
 Death of party 84 
 
 when leave granted to appeal to Appellate Division 121 
 
 (See also Death of Appellant or Respondent; Notice of 
 Appeal; Perfecting Appeal.) 
 
178 ^ INDEX. 
 
 WAIVER OF RIGHT TO APPEAL. Page 
 
 Acceptance of benefits or terms Imposed 105 
 
 costs imposed 105 
 
 Compliance or acquiescence 105 
 
 Collection of portion of judgment 105 
 
 Entry of judgment of dismissal by request .' 103 
 
 What is not waiver 105 
 
 payment of judgment 105 
 
 satisfaction 105 
 
 WITHDRAWAL OF APPEAL. 
 
 When allowed or disallowed 59 
 
 costs upon 115 
 
 Settlement — without consent of attorney 59 
 
 (See also Consent of Affirmance; Consent to Reversal.)