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of his absence. The appellate court may prescribe the mode of bringing in such a person, by publication, by personal service, or otherwise. But this section does not require a person interested, but not a party, to be brought in, if he was legally represented, or was duly cited in the court below.

New. Suffern v. Lawrence, 4 How. 129; Gardner v. Gardner, 5 Paige, 170; Brown v. Evans, 34 Barb. 594; Gilchrist v. Rea, 9 Paige, 66: Kellett v. Rathbun, 4 id. 102; Matter of Thompson, 11 id. 453; Jauncey v. Rutherford, 9 id. 273; Wilcox v. Smith, 26 Barb. 316; Gilman v. Gilman, 35 id. 591; 1 Redf. 354; Pruyn v. Brinkerhoff, 7 Abb. N. S. 400; Cox v. Schermerhorn, 5 Weekly Dig. 510; Kellinger v. Roe, 7 Paige, 362; Underhill v. Dennis, 9 id, 202.

$ 2574. Appeal; how taken.-An appeal must be taken by the service, within the State, upon each party to the special proceeding, other than the appellant, and upon the surrogate, or the clerk of the surrogate's court, of a written notice, referring to the decree or order appealed from, and stating that the appellant appeals from the same, or from a specified part thereof. Where a party to the special proceeding in the court below appeared in person, the notice of appeal must be personally served upon him; where he appeared by an attorney, it must be served personally, either upon him or upon his attorney. Where a party, who was duly cited, did not appear in the surrogate's court, notice of appeal must be served upon him personally, if he can, with due dili gence, be found within the county; otherwise it may be served by depositing it, indorsed with a direction to the party, with the surrogate or the clerk of the surrogate's court. Where a person to be served cannot, with due diligence, be found, to make personal service upon him, as prescribed in this section, the surrogate, or a justice of the supreme court, may, by order, prescribe such a mode of service as he thinks proper; and service in that mode has the same effect as personal service.

New. See 1300, ante.

2575. Certain provisions of chapter 12 made applicable. The provisions of the following sections of this act, to wit: sections 1295, 1297, 1298, 1299, 1303, and 1305 to 1309, both inclusive, apply to an appeal taken as prescribed in this article.

New.

§ 2576. Appeal may be on the law or the facts;

case to be made, etc.-The appeal may be taken upon questions of law, or upon the facts or upon both. If it is taken from a decree rendered upon the trial, by the surrogate, of an issue of fact, it must be heard upon a case, to be made and settled by the surrogate, as prescribed by law, for making and settling of a case upon an appeal in an action.

New. Smith. Velie, 60 N. Y. 106; Hannahs v. Hannahs, 3 Hun, 644; S. C., 68 N. Y. 610.

2577. Security to perfect appeal. To render a no. tice of appeal effectual for any purpose, except in a case specified in the next section, or where it is specially prescribed by law, that security is not necessary to perfect the appeal, the appellant must give a written undertaking, with at least two sureties, to the effect that the appellant will pay all costs and damages which may be awarded against him upon the appeal, not exceeding two hundred and fifty dollars.

2 R. S. 66, 356 (2 Edm. 67); 2 R. S. 610, 108 (2 Edm. 633). Marvin r. Marvin, 11 Abb. N. S. 97, ct. app.; Skidmore . Davies, 10 Paige, 316,

2578. Id.; where decree is for money or delivery of property, etc.-Notice of appeal by an executor, administrator, testamentary trustee, guardian, or other person appointed by the surrogate's court, from a de cree, directing him to pay or distribute money, or to deposit money in a bank or trust company, or to deliver property; or by an executor or administrator from an order, granting leave to issue an execution against him, as prescribed in section 1825 of this act; is not effectual, for any purpose, unless the appellant gives an undertaking, with at least two sureties, in a sum therein specified, to the effect that, if the decree or order, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay all costs and damages, which may be awarded against him upon the appeal, and will pay the sum so directed to be paid or collected, or as the case requires, will deposit or distribute the money, or deliver the property, so directed to be deposited, distributed, or delivered, or the part thereof as to which the decree or order is affirmed.

2R. S. 116, 21 (2 Edm. 121); L. 1870, ch. 339, 12, amended. Mount v. Mitchell, 31 N. Y. 356; s. c., 19 Abb. Pr. 1.

2579. Security to stay proceedings in case of commitment. An appeal from a decree or an order, di

recting the commitment of an executor, administrator, testamentary trustee, guardian, or other person ap. pointed by the surrogate's court, or an attorney or counsel employed therein for disobedience to a direction of the surrogate, or for neglect of duty; or directing the commitment of a person refusing to obey a subpoena, or to testify, when required according to law; does not stay the execution of the decree or order appealed from, unless the appellant gives an undertaking, with at least two sureties, in a sum therein specified, to the effect that, if the decree or order appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will, within twenty days after the affirmance or dismissal, surrender himself in obedience to the decree or order, to the custody of the sheriff of the county, wherein he was directed to be committed. If the undertaking is broken it may be prosecuted in the same manner, and with the same effect, as an administrator's official bond; and the proceeds of the action must be paid or distributed, as directed by the surrogate, to or among the persons aggrieved, to the extent of the pecuniary injuries sustained by them; and the balance, if any, must be paid into the county treasury.

2 R. S. 610, 611, 111-115 (2 Edm. 633, 634), amended.

2580. Amount of undertaking; how fixed. The sum specified in an undertaking, executed as prescribed in either of the last two sections, must, where the appeal is taken from a decree directing the payment, depositing, or distribution of money, be not less than twice the sum directed to be paid, deposited, or distributed. Where the appeal is taken from an order granting leave to issue an execution, it must be not less than twice the sum, to collect which the execution may issue. In every other case, it must be fixed by the surrogate, or by a judge of the appellate court, who may require proof, by affidavit, of the value of any property, or of such other facts as he deems proper. The respondent may apply to the appellate court, upon notice, for an order requiring the appellant to increase the sum so fixed. If such an order is granted, and the appellant makes default in giving the new undertaking, the appeal may be dismissed or the stay dissolved, as the case requires. New. See 2 R. S. 610, 112 (2 Edm. 634).

§ 2581. Requisites of undertaking.—An undertaking, given as prescribed in the last four sections, must be to the people of the State; must contain the name and residence of each of the sureties thereto; must be approved by the surrogate or a judge of the appellate court; and must be filed in the surrogate's office. Except as other. wise specially prescribed, the filing of a proper undertaking, and service of the notice of appeal, perfect the appeal. The surrogate may, at any time, in his discretion, make an order, authorizing any person aggrieved to bring an action upon the undertaking, in his own name, or in the name of the people. Where it is brought in the name of the people, the damages collected must be paid over to the surrogate, and distrib. uted by him, as justice requires.

New in form. See id., 117, 1334, ante.

§ 2582. Decree for probate, etc.; how far suspended by appeal. An appeal from a decree of a surrogate, admitting a will to probate, or granting letters testamentary, or letters of administration, does not stay the issuing of letters, where, in the opinion of the surrogate, manifested by an order, the preservation of the estate requires that the letters should issue. Letters so issued confer upon the person named therein all the powers and authority, and subject him to all the duties and liabilities of an executor or administrator in an ordinary case, except that they do not confer power to sell real property by virtue of a provision in the will, or to pay or satisfy a legacy, or to distribute the unbequeathed property of the decedent, until after the final determination of the appeal.

L. 1871, ch. 603, 1 (9 Edm. 104). Thompson v. Tracy, 60 N. Y. 174.

2583. Decree revoking probate, etc.; not stayed. An appeal from a decree revoking the probate of a will, or revoking letters testamentary, letters of administration, or letters of guardianship; or from a decree or an order, suspending an executor, administrator, or guardian, or removing or suspending a testamentary trustee, or a freeholder, appointed to execute a decree, as prescribed in title fifth of this chapter, or appointing a temporary administrator, or an appraiser of personal

property, does not stay the execution of the decree or order appealed from.

2 R. S. 611, 116, and part of ? 110 (2 Edm. 633, 634).`

cases.

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2584. Perfected appeal stays proceedings in other Except as otherwise expressly prescribed in this article, a perfected appeal has the effect, as a stay of the proceedings to enforce the decree or order appealed from, prescribed in section 1810 of this act with respect to a perfected appeal from a judgment.

New. See 1310; 2 R. S. 66, 55 (2 Edm. 66); 2 R. S. 610, 109 (2 Edm. 633).

§ 2585. Appeal, where heard; proceedings thereupon. - In the supreme court, an appeal from a decree or an order of a surrogate's court must be heard, the judgment, or an order made thereupon, must be entered, and the papers must be filed, in the same manner, and the effect of the judgment, with respect to the proceedings in the surrogate's court, is the same, as where an appeal is taken to the supreme court, from a final judg ment or an order of an inferior court, as prescribed in title third of chapter twelfth of this act.

New. See 1340-1345.

2586. Power of appellate court; further testimony. Where an appeal is taken upon the facts, the appellate court has the same power to decide the questions of fact, which the surrogate had; and it may, in its discretion, receive further testimony or documentary evidence, and appoint a referee.

New. See Godfrey v. Moser, 66 N. Y. 250; Matter of Wright, 16 Abb. N. S. 429; Rolwagen v. Rolwagen, 3 Hun, 121; 5 T. & C. 402; 63 N. Y. 504; Gilman r. Gilman, 3 Hun, 22; Devin . Patchin, 26 N. Y. 441; 25 How. 5; Abby . Christy, 49 Barb. 276; White v. Story, 2 Hill, 543; Rowland v. Taylor. 53 N. Y. 627; Caujolle's Case, 9 Abb. 393; Robinson v. Raynor, 28 N. Y. 494; Scribner v. Williams, 1 Paige, 550; Case of Towle, 8 id. 479; Williamson v. Williamson, 6 id. 298.

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2587. Judgment or order upon appeal. -The appellate court may reverse, affirm, or modify the decree or order appealed from, and each intermediate order, specified in the notice of appeal, which it is authorized. by law to review, and as to any or all of the parties; and it may, if necessary or proper, grant a new trial or hearing. The decree or order appealed from may be enforced, or restitution may be awarded, as the case re

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