[Co. Proc., § 367, amended so as to conform substantially to the corresponding provision for courts of record, and so as to require the undertaking, and a certified copy of the judgment to be annexed to the roll.] ART. 2. ARTICLE SECOND. APPEAL WHERE A NEW TRIAL IS NOT HAD IN THE APPELLAte Court. SEC. 3062. Hearing of appeal; dismissal thereof. 3063. Judgment. 3064. When new trial in justice's court may be directed. 3065. Id.; proceedings before justice. 3066. Costs; when awarded. 3067. Amount of costs. of appeal: thereof. § 3062. If the case is one where the appellant is not entitled to, Hearing or has not demanded, a new trial in the appellate court, as prescribed dismissal in section 3068 of this act, the appeal may be brought to a hearing in the appellate court, at any term thereof, at which such an appeal can be heard, held after the return is filed, upon a notice by either party, of not less than eight days. It must be placed upon the calendar; and must continue thereupon, without further notice, until it is finally disposed of. If, after being regularly placed upon the calendar, neither party brings it to a hearing before the end of the second term thereafter, at which it might be noticed for hearing, and heard, the court must dismiss the appeal, unless it directs the same to be continued, for cause shown. If the appeal is to the superior court of Buffalo, it must be heard at a general term thereof. [Co. Proc., § 364, first half, amended by confining the expression, "general term ", to the Buffalo superior court.] § 3063. In a case specified in the last section, the appeal must be Judgment heard upon the original papers, or a certified copy thereof; and a copy or copies thereof need not be furnished for the use of the court. The appellate court must render judgment according to the justice of the case, without regard to technical errors or defects, which do not affect the merits. It may affirm or reverse the judg ment of the justice, in whole or in part, and as to any or all of the parties, and for errors of law or of fact. [Co. Proc., § 365, and the first two sentences of § 366.] TITLE 8. Setting off costs and be given; and if the application is granted before judgment, the proper direction may be included therein. [Co. Proc., § 369, amended by substituting the first two sentences, which conform substantially to the corresponding provision for courts of record, for "If the judgment below, or any part thereof, be paid or collected, and the judgment be afterwards reversed, the appellate court shall order the amount paid or collected to be restored, with interest from the time of such payment or collection." This provision is inapplicable to certain cases, as, for instance, where property has been replevied and delivered to the plaintiff.] § 3059. If, upon the appeal, a sum of money is awarded to one recovery party, and costs are awarded to the adverse party, the appellate court must set off the one against the other, and render judgment for the balance. Certain sums may be in disburse ments. [Co. Proc., § 370. The same provision was repeated in id., § 371.] § 3060. Where costs are awarded to the appellant, he may included in clude, in the disbursements upon the appeal, the costs and fee paid to the justice upon taking the appeal; and, where the judgment rendered by the justice was against the appellant, he may also include, in those disbursements, the costs of the action, before the justice, which he would have been entitled to recover, if the judg ment of the justice had been in his favor. Judgmentroll. [Co. Proc., part of § 371.] § 3061. The clerk, immediately after entering final judgment upon the determination of an appeal, must attach together and file such of the following papers, as were used upon the appeal, which constitute the judgment-roll: 1. The return of the justice, or a certified copy thereof; the notice of appeal; and the undertaking, if any has been given. 2. The verdict, report, or decision, and each offer, if any, made as prescribed in article third of this title. 3. A certified copy of the judgment, together with each notice of exceptions, or case, which is then on file. 4. Every other paper, then on file, and a certified copy of every order, which in any way involves the merits, or necessarily affects the judgment. [Co. Proc., § 367, amended so as to conform substantially to the corresponding provision for courts of record, and so as to require the undertaking, and a certified copy of the judgment to be annexed to the roll.] ART. 2. ARTICLE SECOND. APPEAL WHERE A NEW TRIAL IS NOT HAD IN THE APPELLATE COURT. SEC. 3062. Hearing of appeal; dismissal thereof. 3063. Judgment. 3064. When new trial in justice's court may be directed. 3065. Id.; proceedings before justice. 3066. Costs; when awarded. 3067. Amount of costs. of appeal: thereof. § 3062. If the case is one where the appellant is not entitled to, Hearing or has not demanded, a new trial in the appellate court, as prescribed dismissal in section 3068 of this act, the appeal may be brought to a hearing in the appellate court, at any term thereof, at which such an appeal can be heard, held after the return is filed, upon a notice by either party, of not less than eight days. It must be placed upon the calendar; and must continue thereupon, without further notice, until it is finally disposed of. If, after being regularly placed upon the calendar, neither party brings it to a hearing before the end of the second term thereafter, at which it might be noticed for hearing, and heard, the court must dismiss the appeal, unless it directs the same to be continued, for cause shown. If the appeal is to the superior court of Buffalo, it must be heard at a general term thereof. [Co. Proc., § 364, first half, amended by confining the expression, "general term ", to the Buffalo superior court.] § 3063. In a case specified in the last section, the appeal must be Judgment heard upon the original papers, or a certified copy thereof; and a copy or copies thereof need not be furnished for the use of the court. The appellate court must render judgment according to the justice of the case, without regard to technical errors or defects, which do not affect the merits. It may affirm or reverse the judg ment of the justice, in whole or in part, and as to any or all of the parties, and for errors of law or of fact. [Co. Proc., § 365, and the first two sentences of § 366.] § 3064. If the appeal is taken by a defendant, who failed to apjustice's pear before the justice, either upon the return of the summons, or TITLE 8. When new trial in court may be di rected. Id.: proceedings before justice. Costs: when at the time to which the trial of the action was adjourned; and he shows, by affidavit or otherwise, that manifest injustice has been done, and renders a satisfactory excuse for his default; the appellate court may, in its discretion, set aside the judgment appealed from, or stay proceedings thereunder, and by order direct a new trial, before the same justice, or before another justice of the same county, designated in the order, at such a time and place, specified in the order, and upon such terms, as it deems proper. [Co. Proc., § 366, fourth sentence, amended by inserting the clause, "either upon the return of the summons, or at the time to which the trial of the action was adjourned," in order to settle the conflict between Williams v. McCauley, 3 E. D. Smith, 120; Bunker v. Latson, 1 id., 410; Rawson v. Grow, 4 id., 18; Edwards v. Drew, 2 id., 55; Hunt v. Westervelt, 4 id., 225; Muber v. Ield, 3 Abb. Pr., 110, on the one hand; and Armstrong v. Craig, 18 Barb., 389, on the other; in accordance with the ruling in the last case, which appeared to us to be the more correct; and by substituting "or stay proceedings thereunder," for "suspend judgment," as expressing more clearly the intention of the legislature.] § 3065. Where a new trial is directed before a justice, as prescribed in the last section, the parties must appear before him, at the time and place specified in the order of the appellate court, without service of any notice, or of a copy of the order. Thereupon the like proceedings must be had in the action, as upon the return of a summons personally served. [Co. Proc., § 366, fifth sentence, amended by inserting the words, "without service of any notice, or of a copy of the order."] § 3066. Upon an appeal provided for in this article, the award awarded. of costs is regulated as follows: 1. If the appeal is dismissed, because neither party brings it to a hearing, as prescribed in this article, costs shall not be awarded to either party. 2. If the judgment is reversed for an error in fact, not affecting the merits; or if a new trial is directed, before the same or another justice, as prescribed in this article; the costs of the appeal are in the discretion of the appellate court. 3. If the judgment is affirmed, costs must be awarded to the respondent. 4. If the judgment is reversed, costs must be awarded to the appellant. 5. If the judgment is affirmed only in part, the costs, or such a part thereof, as to the appellate court seems just, not exceeding ten dollars, besides disbursements, may be awarded to either party. [Co. Proc., § 368, and part of § 371, amended by inserting in subd. 2, the second clause, and in subd. 5, the words, "besides disbursements." As to the effect of a reversal "without costs," see Chase v. Miser, 67 Barb., 441.] § 3067. Upon an appeal, provided for in this article, costs, awarded, must be as follows, besides disbursements: To the appellant, upon reversal, thirty dollars. To the respondent, upon affirmance, twenty-five dollars. when [Co. Proc., part of § 371, amended by substituting "thirty" for "fifteen" and "twenty-five" for "twelve." Until the enactment of this section, the costs had remained unaltered, since the enactment of the Code of Procedure in 1848; while the amount of costs in all other cases had been more than doubled. The effect of so low a scale of costs, especially on affirmance, was to encourage litigation, chiefly at the expense of the party who was in the right.] ARTICLE THIRD. APPEAL FOR A NEW TRIAL IN THE APPELLATE COURT. SEC. 3068. When appellant may demand new trial in appellate court. 3069. Undertaking to be given. 3070. Offer to compromise before return. 3071. Proceedings in appellate court. 3072. Offer to compromise after return. 3073. Amount of costs. ART. 3. Amount of costs. appellant may dean appellate mand new trial in court. § 3068. Where an issue of fact or an issue of law was joined be- when fore the justice, and the sum, for which judgment was demanded by either party in his pleading, exceeds fifty dollars; or where, in action to recover a chattel, the value of the property, as fixed, together with the damages recovered, if any, exceeds fifty dollars; the appellant may, in his notice of appeal, demand a new trial in the appellate court; and thereupon he is entitled thereto, whether the defendant was or was not present at the trial. |