cause those papers to be so transmitted; and he is en titled to tax the expense thereof, as a disbursement, where he recovers costs. The clerk of the appellate court must file the papers so transmitted; and, except where it is otherwise specially prescribed by law, the appeal must be heard upon them.

Co. Proc.,328, am'd. (1)Lansing v. Russell, 4 How. 213; Matter of Southworth, 5 Hun, 55.

§ 1316. Interlocutory judgment, or intermediate order, may be reviewed.An appeal, taken from a final judgment, brings up for review, an interlocutory judgment, or an intermediate order, which is specified in the notice of appeal, and necessarily affects the final judgment; and which has not already been reviewed, upon a separate appeal therefrom, by the court or the term of the court, to which the appeal from the final judgment is taken. The right to review an interlocutory judgment, or an intermediate order, as prescribed in this section, is not affected by the expiration of the time, within which a separate appeal therefrom might have been taken.

Predicated on Co. Proc., 329.

§ 1317. Judgment or order on appeal.- Upon an appeal from a judgment or an order, the court, or the general term, to which the appeal is taken, may reverse or affirm, wholly or partly, or may modify,(1) the judg ment or order appealed from, and each interlocutory judgment or intermediate order, which it is authorized to review, as specified in the notice of appeal, and as to any or all of the parties,(2) and it may, if necessary or proper, grant a new trial or hearing. (3) A judgment, affirming wholly or partly a judgment, from which an appeal has been taken, shall not, expressly and in terms, award to the respondent, a sum of money, or other relief, which was awarded to him by the judgment so affirmed.(4)

See Co. Proc., 330. (1) Zung v. Howland, 5 Daly, 136; Hayden v. Florence S. M. Co., 54 N. Y. 221; Cuff v. Dorland, 57 id. 560; Wolstenholme v. W. F. M. Co., 64 id. 272: Murphy v. Spaulding, 46 1d. 556; and see Whitehead v. Kennedy, 15 Alb. L. J. 470; Bennett v. Lake, 47 N. Y. 93. (2) Hubbell v. Meigs, 50 N.Y. 480; Van Slyck v. Snell, 6 Lans. 299; Hubbell v. Alden, 4 id. 214; Kelsey v. Western, 2 N. Y. 500; Dutch Ber'd Ch. of Canajoharie v. Wood, 8 Barb. 421; Bedell v. Com. Mutual Ins. Co., 3 Bosw. 148: Chouteau v. Suydam, 21 N. Y. 185; Boyd v. Foot, 5 Bosw. 11; Griffin v. Marquardt, 17 N. Y. 28; Edmonston v. McLoud 16 1d. 543; Girard v. Beach, 4 E. D. Smith, 27; 10 How. 369. (3) Halsey

. Flint, 15 Abb, 368. (4) Eno v. Crooke, 6 How. 460; DeAgreca v. Mantel, 1 Abb. 130; Halsey v. Flint, 15 id. 368; Beers. Hendrickson, Ó Rob. 53; s. c., 45 N. Y. 665; Beardsley Scythe Co. v. Foster, 36 id. 561,

$1318. When no appeal lies from judgment of reversal. Where a judgment, from which an appeal is taken, is reversed upon the appeal, and a new trial is granted, an appeal cannot be taken from the judgment of reversal; but upon an appeal from the order granting a new trial, taken, as prescribed by law, the judg ment of reversal must also be reviewed.

New. See Caughey v. Smith, 47 N. Y. 244; Mehl v. Vonderwalbeke, 46 id. 539.

§1319. Mode of enforcing affirmed or modified judgment. Where a judgment, from which an appeal has been taken, from one court to another, is wholly or partly affirmed, or is modified, upon the appeal, it must be enforced, by the court in which it was rendered, to the extent permitted by the determination of the appellate court, as if the appeal there from had not been taken.

§ 1320. Id.; as to order.- Where a final order, from which an appeal has been tak taken, from one court to another, as prescribed in title fifth of this chapter, is wholly or partly affirmed, or is modified, upon the appeal, the appellate court may enforce its order, or may direct the proceedings to be remitted, for that purpose, to the court below, or to the judge who made the order appealed from.14 to soiton and (S),es

Now. See the note to 1322, post. Lab

$1321. Mode of cancelling docket of reversed or modified judgment. Where a final judgment for a sum of money, or directing the payment of a sum of money, has been reversed, or has been affirmed as to part ouly of the sum, upon an appeal, taken as prescribed in title third or fourth of this chapter; and an appeal to the court of appeals is not taken and perfected, and the security required to stay execution is not given, within ten days entry of the judgment

upon the appeal, in the clerk's office where the judgment ap pealed from is entered, the clerk must make a minute of the reversal of the judgment, or of the amount to which it has been reduced, upon his docket-book, in each place, where the judg nt is docketed. A transcript of the docket, as thus corrected, st be furnished by him, and may be filed in any county clerk's ze, where the original judgment is docketed, as prescribed by with respect to the original docket; and thereupon the

county clerk must correct his docket accordingly. The lien of a judgment, the docket of which is not corrected, as prescribed in this section, remains unaffected by the reversal or modification thereof, until the decision of the court of appeals, upon an appeal from the judgment reversing or modifying the same, or the expiration of the time to take such an appeal. New. See the note to the next section.

§ 1322. Id.; when reversal, etc., was by court of appeals.-Where a final judgment for a sum of money, or directing the payment of a sum of money, has been reversed, or affirmed as to part only of the sum, upon an appeal to the court of appeals, the docket may be corrected, as prescribed in the last section, at any time after the remittiture has been filed in the court below.

New.

§ 1323. [Amended, 1877, 1880.] Restitution; when awarded.--Where 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 com pel 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. Where prop erty has been sold, the 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. (1) When the appeal is from a judgment in favor of the owner of real estate, 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 ap pellant shall file with the clerk of the court a written undertak ing 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 estate or contract to sell the same in good faith and 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 undertaking 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 also cancelling and dis charging of record said contract, in case the same has been recorded.

Substitute for Co. Proc., part of 330. Marvin v. Brewster Iron Co., 56 N. Y. 671; Coster v. Peters, 7 Rob. 386; Estus v. Baldwin, 9 How. 80% Sheridan v. Mann, 5 id. 201: Britton v. Phillips, 24 id. 111; Whitbeck . Patterson, 22 Barb. 83; Safford v. Stevens, 2 Wend. 164; Young v. Brush 18 Abb. 171, (1) Marvin v. Brewster Iron Mining Co., 56 N. Y. 671; O'Gara v. Kearney, 77 N. Y. 423.

Abb. 66, Tiers . Carnahan, 2 d. 69; McMahon . Allen, 22 How. 193; Valton v. Nat, Loan Fund, 19 1d. 515. Ilorner v. Lyman, 4 Keyes, 237; Shankland v. Hamilton, IN. Y Sup. Ct. (T. & C.) 239.

1328. Id.; on judgment, etc., for delivery of property. If the appeal is taken from a judgment or order, directing the assignment or delivery of a document, or of personal property, it does not stay the execution of the judgment or order, until the thing directed to be assigned or delivered, is brought into the court below, or placed in the custody of an officer or receiver, designated by that court; or the appellant gives a written undertaking as prescribed in the next section.

Co. Proc., part of 336, am'd. Elliott v. Buckland, 37 How. 71.

$1329. Id.; on judgment for a chattel. - If the ap peal is taken from a judgment for the recovery of a chattel, it does not stay the execution of the judgment, until the appellant gives a written undertaking, in & sum fixed by the court below, or a judge thereof, to the effect, that the appellant will obey the direction of the appellate court, upon the appeal.

Id.

§ 1330. Id.; on judgment, etc., directing convey. ance. If the appeal is taken from a judgment or order, directing the execution of a conveyance, or other instru ment, it does not stay the execution of the judgment or order, until the instrument is executed, and deposited with the clerk, with whom the judgment or order is entered, to abide the direction of the appellate court.

Id., 337, extended to an appeal from an order. Waring v. Ayres, 12 Abb. 112; Worrall v. Munn, 17 N. Y. 475

§ 1331. [Amended, 1879.] Security to stay execu tion on judgments for possession of real property.. If the appeal is taken from a judgment, which entitles the respondent to the immediate possession of real property, or from a judgment or order, directing the sale or the delivery of possession of real property, it does not stay the execution of the judgment or order. until the appellant gives a written undertaking, to the effect that he will not, while in possession of the property, commit, or suffer to be committed, any waste thereon; and that, if the judgment or order is affirmed, or the appeal is dismissed, he will pay the value of the use and occu pation of the property, or the part thereof, as to which the judgment or order is affirmed, from the time of taking the appeal, until the delivery of the possession thereof, pursuant to the judgment or order, not exceeding a specified sum, fixed by