cept where it is otherwise specially prescribed by law the appeal must be heard upon them. § 1316. An appeal, taken from a final judgment, brings 7 Daly, 446. up for review, an interlocutory judgment, or an intermediate 9 Civ. Pro. order, which is specified in the notice of appeal, and neces- 351; 10 Id. sarily affects the final judgment; and which has not already 107. 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. 150 N. Y. 542; 155 N. Y. 177. 1817. [Am'd 1895, amendment to take effect January 1, 1896.] Upon an appeal from a judgment or an order, the appellate division of the supreme court or general term, to which the appeal is taken, may reverse or affirm, wholly or partly, or may modify, the judgment 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; and it may, if necessary or proper, grant a new trial or hearing. 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. 52 N. Y.Sup- 25 N. Y.State 126 Id. 423. 16 Huu, 104. 154. 126 Id. 423. 16 App. Div. 466. 154 N. Y. 715. 23 App. Div 157 N.Y. 449. 221. § 1818. Where a judgment, from which an appeal is 154 N. Y.715. 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 judgment of reversal must also be reviewed. § 1319. 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 therefrom had not been taken. § 1320. Where a final order, from which an appeal has been 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. § 1321. [Am'd 1877.] 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 only 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 after the entry of the judgment upon the appeal, in the clerk's office where the judgment appealed 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 judgment is docketed. A transcript of the docket, as thus corrected, must be furnished by him, and may be filed in any county clerk's office, where the original judg 98 N. Y. 480. 53 N.Y. Super. Ct. (J. & S.) 381. 100 N. Y. 616 29 Abb. N C. 359n 127. 15 Id. 290. 136: ment is docketed, as prescribed by law, 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. § 1322. 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 remittitur has been filed in the court below. § 1323. Restitution; when awarded. [Am'd 1877, 1880, 1899, amendment to take effect September 1, 1899.] When a final judgment or order is reversed or modified, upon appeal, the appellate court, or the general term of the same 27 N.Y.State court, as the case may be, may make or compel restitution Rep. 8 of property, or of a right, lost by means of the erroneous 192 N.Y. 363. judgment or order; but not so as to affect the title of a purchaser in good faith and for value. When property has 146 N.Y. 343. been sold, the court may compel the value, or the purchase 1 App. Div. price, to be restored, or deposited to abide the event of the action, as justice requires. When the appeal is from a judg151 N. Y. 552. ment in favor of the owner of real estate, in an action to set 155 N.Y. 102, 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 app. 1lant 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 and for a valuable consideration, after said judgment and before the filing of sich 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, in an action to compel the specific performance of a contract for the sale of real estate, also cancelling and discharging of record said contract, in case the same has been recorded. 1824. An appeal may be taken to the court of appeals, in a case where that court has jurisdiction, as prescribed in sections one hundred and ninety and one hundred and ninetyone of this act. § 1325. [Am'd 1877, 1895, amendment to take effect January 1, 1896.] An appeal to the court of appeals, from a final judgment, must be taken, within one year after final judgment is entered, upon the determination of the appellate division of the supreme court, and the judgment roll filed. An appeal to the court of appeals, from an order, must be taken within sixty days after service, upon the attorney for the appellant, of a copy of the order appealed from, and a written notice of the entry thereof. 273. 4 Dem. 84. 21 App. Div. 266 § 1326. To render a notice of appeal, to the court of ap- 67 How. Pr peals, effectual, for any purpose, except in a case where it is specially prescribed by law, that security is not necessary, to perfect the appeal, the appellant must give a written undertaking, to the effect, that he will pay all costs and damages, which may be awarded against him on the appeal, not exceeding five hundred dollars. The appeal is perfected, when such an undertaking is given and a copy thereof, with notice of the filing thereof, is served, as prescribed in this title. §1327. If the appeal is taken from a judgment for a suin of money, or from a judgment or order, directing the payment of a sum of money, it does not stay the execution of the judgment or order, until the appellant ives a written undertaking to the effect, that if the judgment or order appeale from, or any part thereof, is affirmed, or the appeal is dismisse 1, he will pay the sum, recovered or directed to be paii, by the judgment or order, or the part thereof, as to which it is affirmed. But where the judgment or order directs the payment of money in fixed installments, the undertaking must be to the effect, that the appellant will pay each installment. which becomes payable, pending the appeal, or the part thereof as to which the judgment order is affirmed, 22 Id. 131. 39 Hun, 435. not exceeding a sum specified in the undertaking, which must be fixed by a judge of the court below. The court below may, at any time afterwards, upon satisfactory proof by affidavit, that the sum so fixed is insufficient in amount, make an order requiring the appellant to give a further undertaking, to the same effect, in a sum and within a time, specified in the order. A failure to comply with such an order has the same effect, as if no undertaking had been given, as prescribed in this section. § 1328. 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 judg154 N.Y. 278. ment or order, until the thing directed to be assigned or de livered, 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. § 1329. If the appeal 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 tho 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. § 1330. If the appeal is taken from a judgment or order, directing the execution of a conveyance, or other instrument. 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. $ 1331. On judgment, etc., for the possession of real property. [Am'd 1879, 1897, amendment to take effect September 1, 187.] Id.-If the judgment or order directs the sale or the delivery of the possession of real property, or entitles the respondent to the immediate possession thereof, an ap, eal does not stay the execution of the judgment or order until the appellant gives a written underdtaking to the effect that he will not, while in possession of the prop. erty, commit, or suffer to be committed, any waste thereon; and if the property is in his possession or under his control, the undertaking must also provide that if the judgme t or order is affirmed or the appeal is dismissed, and there is a deficiency upon a sale, he will pay the value of the use and oc upation of such 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 a judge of the court below. If the judgment directs a sale of real property upon the foreclosure of a mortgage, and an appeal is taken by a party against whom payment of the deficiency is awarded by such judgment, the undertaking must also provide that if the judgment is affirmed or the appeal is dismissed, the appellant will pay any deficiency which may occur upon the sale, with interest and costs, and all expenses chargeable against the proceeds of the sale, not exceeding a sum fixed by a judge of the court below. 29 App. Div. 480; 31 Id. 312. C 481. § 1332. Where the judgment or order, from which an ap- 13 Abb. N. peal is taken to the court of appeals, affirms a judgment or order, to the effect specified in either of the last five sec ions, the undertaking must be the same, as if the judgment or order, from which the appeal is so taken, was to the same effect, as the judgment or order so affirmed. § 1333. 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. § 1834. [Am'd 1879.] When two or more undertakings 98 N. Y. 458are 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. |