a judge of the court below. But if the judgment directs a foreclosure and sale of real property mortgaged, an undertaking is sufficient to stay the execution of the judgment, which is to the effect that if the judgment is affirmed, or the appeal is dismissed, the appellant will pay any deficiency which may occur upon the sale, in discharging the sum to pay which the sale is directed, with interest, and the costs, and all expenses chargeable against the proceeds of the sale, not exceeding a specified sum, fixed by a judge of the court below.

Co. Proc., 338. Watt v. Watt, 15 Abb. 367, note; Fireman's Ins. Co. of Albany v. Bay. 2 Code R. 3.

1332. Construction of the last five sections. Where the judgment or order, from which an appeal is taken to the court of appeals, affirms a judgment or order, to the effect specified in either of the last five sections, the undertaking must be the same, as if the judg ment or order, from which the appeal is so taken, was to the same effect, as the judgment or order so affirmed.

New. See Hinckley v. Kreitz, 58 N. Y. 583.

§ 1333. The last six sections qualified.—The last six sections do not extend to a case, where it is specially prescribed by law, that an appeal may be taken, or the execution of a judgment or order appealed from may be stayed, without security, or where the security to be given, for either purpose, is specially regulated by law.

New.

$1334. [Amended, 1879.] Undertaking may be in one instrument; form and service thereof. - Where two or more undertakings are required to be given as prescribed in this title they may be contained in the same instrument, or in different instruments at the option of the appellant. Each undertaking given as prescribed in this title must be executed by at least two sureties, and must specify the residence of each surety therein. A copy thereof, with a notice showing where it is filed, must be served on the attorney for the adverse party with the notice of appeal or before the expiration of the time of appeal.

Co. Proc., 340, am'd. N. Y. C. Ins. Co. v. Safford, 10 How. 344; Cush man v. Martines, 13 id. 402; Smith v. Heermance, 18 id. 261; Mills v. Thursby, 11 id. 129.

§ 1335. Exception to sureties; justification. - The attorney for the respondent may, within ten days after service of a copy of the undertaking, with notice of the

filing thereof, serve upon the attorney for the appellant, a written notice, that he excepts to the sufficiency of the sureties.(1) Within ten days thereafter, the sureties, or other sureties in a new undertaking, to the same effect, must justify, before a judge of the court below, or a county judge.(2) At least five days' notice of the justification must be given ;(3) in every other respect, the provisions of sections 578, 579 and 580 of this act apply to the justification. If the judge finds the sureties sufficient, he must indorse his allowance of them, upon the undertaking, or a copy thereof; and a notice of the allowance must be served upon the attorney for the exceptant. The effect of a failure so to justify, and to procure an allowance, is the same, as if the undertaking had not been given.

Co. Proc.. 341, am'd. Gopsill v. Decker, 4 Hun, 625. (1) Webster v. Stephens, 3 Abb. 227; 5 Duer, 690; Ballard v. Ballard, 18 N. Y. 491. (2) Kelsey v. Campbell, 38 Barb. 238; s. c., 14 Abb. 368; Chamberlain v. Dempsey, 13 d. 421; 22 How. 356; Hill v. Burke, 62 N. Y. 111. (3) Dresser v. Brooks, 5 How, 75.

1336. Appeal from final judgment rendered after affirmance of interlocutory judgment, or denial of motion for new trial. Where final judgment is rendered in the court below, after the affirmauce, upon an appeal to the general term of that court, of an interlocutory judgment; or after the refusal, by the general term, of a new trial, either upon an application, made, in the first instance, at the general term, or upon an appeal from an order of the special term, or of the judge before whom the issues, or questions of fact, were tried by a jury; the party aggrieved may appeal directly from the final judgment to the court of appeals, notwithstanding that it was rendered at a special term, or at a trial term, or pursuant to the directions, contained in a referee's report. But such an appeal brings up, for review, only the determination of the general term, affirming the interlocutory judgment, or refusing the new trial. See 1350, post.

§ 1337. What questions are brought up for review. -An appeal to the court of appeals from a final judg ment, or from an order, granting or refusing a new trial in an action, or from a final order affecting a substantial right, made, either in a special proceeding, or upon a summary application after judgment in an action, brings

up for review, in that court, every question, affecting a substantial right, and not resting in discretion, which was determined by the general term of the court below, in rendering the judgment or making the order, from which the appeal is taken; except that a question of fact arising upon conflicting evidence, cannot be determined upon such an appeal, unless where special provision for the determination thereof is made by law.

New in form.

1338. When questions of fact to be reviewed. Upon an appeal to the court of appeals from a judg ment, reversing a judgment entered upon a referee's report, or a decision of the court, upon a trial without a jury; or from an order granting a new trial, upon such a reversal; it must be presumed, that the judg ment was not reversed, or the new trial granted, upon a question of fact, unless the contrary clearly appears, in the body of the judgment or order appealed from. In that case, the court of appeals must review the determination of the general term of the court below, upon the questions of fact, as well as the questions of law.

Co. Proc., parts of 22 268 and 272. Williams v. Hernon, 3 Keyes, 99; 8. c., 33 How, 213; East River B'k e. Kennedy, 4 Keyes. 279; Cbleman v. Secon Ave, R. R. Co., 35 N. Y. 202; 6 Trans. App. 116; Van Barcom t. B'away B'k, 5 14. 156: Lotell r. Lobbal, 2 14. 366; Mureo e. Liverpool Ins. Co., 25 N. Y. 664: Baldwine. Van Deuson, 37 14. 487; Shibley v. Angle, Pl. 631; Wright e. Hunter, 46 d. 409; Sands e. Crooke, Id. 564: Dickson e. Broadway, 47 14. 507: Downing r. Kelly, 48 Id. 433; Vermilyea e. Palmer, 52 4. 471; Platt e. Platt, 58 14. 646: Taylor e. Guest, id. 262; Lager e. Forty-second St. R. R., 31 B. 497; Thoraton r. Antennith, 55 id. 659; Wallace e. Drew, 51 id. 678; Sheldon . Sheldon, 51 id. 354.

1339. When a case to be prepared, etc., for the appeal. Where an appeal to the court of appeals, from a judgment, rendered at a general term of the court be ow, upon a verdict, subject to the opinion of the court, has been perfected, a case, containing a concise statement of the facts,(1) of the questions of law arising thereupon, and of the determination of those questions by the general term,(2) must be prepared and settled, by or under the direction of the court below, and annexed to the judgment roll. (3) An exception is not necessary, to enable the court of appeals to review the determination of a question of law, arising upon the verdict. A certified copy of the case must be transmitted to the court of appeals, instead of the case, upon

which the judgment of the court below was rendered. The court below, or a judge thereof, may extend the time, limited by law, within which the papers must be transmitted to the court of appeals, for the purpose of enabling the appellant to procure the case to be prepared or settled.

Co. Proc., part of 333, and part of 265. Jaycox v. Cameron, 49 N. Y. 645. (1) Purchase v. Mattison, 15 Abb. 402; 25 N. Y. 211; Brewer v. Orser, 2 Bosw. 365. (2) Smith e. Grant, 17 How. 381. (3) Reinmeller v. Skidmore, 59 N. Y. 661.

TITLE III.

Appeal to the supreme court from an inferior court.

SEC. 1340. Appeal from Judgment.

1341. Limitation of time; security.

1342. Appeal from order.

1343. Limitation of time and stay of proceedings.
1344. Appeal, where and how heard.

1345. Judgment or order, where entered.

§ 1340. Appeal from judgment. An appeal may be taken, to the supreme court, from a final judgment, rendered by a county court, or by any other court of record, possessing original jurisdiction, where an appeal therefrom to a court, other than the supreme court, is not expressly given by statute.

Id., 344, first sentence, am'd. Beatty v. Myers, 6 T. & C. 456; Hacker v. Ferrill, 66 Barb. 559; Carpenter v. Green, 4 Hun, 416: Quinn e. Weed, 5 d. 330; Osborn v. Nelson, 59 Barb. 375; Ross v. Colby, 3 Hun, 546; Thurber . Townsend, 22 N. Y. 517; Lynch . McBeth, 7 How. 113: Dorr e. Birge, 5 id. 323; 8 Barb. 351; Moore r. Wood, 19 How. 405: Suydam v. Grand Street R. R. Co., 17 Abb. 304; Von Latham e. Rowan, Id. 238; Carter v. Werner, 27 How. 385; Monroe v. Monroe, id. 208; Whitney v. Wells, 23 id. 150; Simmons e. Sherman, 30 id, 4; Hammond r. Carpenter, 29 id. 43; Boughton r. Mitchell, id. 68; 19 Abb. 163; Dixon v. Buck, 42 Barb. 70; Taylor v. Scoville, 54 id. 34; Crounse v. Whipple, 34 How. 333.

$1341. [Amended, 1877.] Limitation of time; security. An appeal, authorized by the last section, must be taken within sixty days after service, upon the attorney for the appellant, of a copy of the judgment, and notice of the entry thereof. Upon such an appeal, security must be given, to perfect the appeal, or to stay the execution of the judgment, and the sureties may be excepted to, and must justify, as upon an appeal to the

court of appeals, from a judgment of the same amount, or to the same effect.

Co. Proc., 345, and part of 331, as am'd by L. 1876, ch. 431, 13. See Jones v. Decker, 14 Abb. 391.

-

1342. Appeal from order. - An appeal may also be taken, to the supreme court, from an order, affecting a substantial right, made by the court or a judge, in an action brought in a court, specified in the last section

but one.

v.

Id., part of 344, am'd. Hammond v. Carpenter, 29 How. 43: Moore Wood, 19 id. 405; Suydam v. Grand Street R. R. Co., 17 Abb. 304; Von Latham v. Rowan, id. 238; Crounser. Whipple, 34 How. 233; Taylor v. Scoville, 54 Barb. 34; Carpenter v. Green, 4 Hun, 416.

1343. [Amended, 1877.] Limitation of time and stay of proceedings. An appeal, authorized by the last section, must be taken, within sixty days after service upon the attorney for the appellant, of a copy of the order, and written notice of the entry thereof.(1) Security is not required to perfect it; but it does not stay the execution of the order from which it is taken. The appellate court, or a judge thereof, may direct such a stay, upon such terms, as to security or otherwise, as justice requires.(2)

(1) Id., § 331, as am'd 1876, ch. 431. 13. (2) Id., 350.

1344. Appeal, where and how heard. - An appeal, taken as prescribed in this title, must be heard at the general term.(1) 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.

Id., 346, remodelled. See L. 1870, ch. 408, 5, 6 and 10. (1) Watts . Aikin, 4 How. 439.

$1345. Judgment or order, where entered. — A judgment of the supreme court, rendered upon an appeal authorized by this title, must be entered in the judgment-book, kept in the office of the clerk of the County, wherein the court below is located. The judg ment-roll must be filed in the same office; and must consist of a certified copy of the judgment, annexed to the papers transmitted from the court below. An order of the supreme court, made upon such an appeal, must be entered, and the papers, upon which the appeal was heard, must be filed, in the office of the same clerk. The