90 N. Y. 476. 5 Civ 81. Pro. § 1835. [Am'd 1882, 1891] It is not necessary that the undertaking should be approved; but attorney for the re spondent may, within ten days after the service of a copy of 98 N. Y. 458. 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. Within ten days thereafter, the sureties, or other sureties in a new undertaking to the same effect, must justify before the court i elow, or ajudge thereof, or a referee appointed by the same, or a county judge. At least five days' notice of the justification must be given. A referee may be appointed upon the motion of either party, or upon the court's own motion to take the justification of such sureties and to report the evidence upon the same to the court or judge with his opinion. The court may further direct that either party shall pay the expenses of such reference. If the court or judge finds the sureties sufficient he must endorse 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 procure an allowance, is the same as if the undertaking had not been given. The court shall also have power, in case it shall be made to appear to its satisfaction, upon motion, that the exception was taken unnecessarily or for purposes of vexation or delay, to set the same aside and approve the undertaking. 17 Civ. Pro. 43. 73 N. Y. 187. Id. 156. § 1336. [Am'd 1895, amendment to take effect January 1, 1896.] Where a final judgment is rendered in the court below, after the affirmance, upon an appeal to the appellate division of the supreme court, of an interlocutory judgment; or after the refusal, by the appellate division of a new trial, either upon an application made in the first instance, at a term there of, 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 appellate division of the supreme court, affirming the interlocutory judgment, or refusing the new trial. § 1337. [Am'd 1894, 1835, amendment to take effect January 1,896.] An appeal to the court of appeals from a final judgment, or from an order, granting or refusing a new trial in an action, where the appellant stipulates that upon affirmance judgment absolute shall be rendered against him, brings up for review in that court only questions of law; but where the justices of the appellate division from which an appeal is 150 Id. 219. taken are divided upon the question as to whether there is 131 N. Y. 37. 133 Id. 170. 135 Id. 248. evidence supporting, or tending to support, a finding o verdict not directed by the court, a question for review is presented. In any action on an appeal to the court of appeals, the court may either modify or affirm the judgment or order appealed from, award a new trial, or grant to either party such judgment as such party may be entitled to 79 N. Y. 409; 87 Id. 620. 127 Id. 639. 30 Abb. N.C 214. 135 N.Y. 60: 136 Id. § 1338. [Am'd 1895, amendment to take effect January 1, 1896. Upoù an appeal to the court of appeals from a judgment, reversing a judgment entered upon the report of a referee or a determination in the trial court; or from an order granting a new trial, upon such a reversal; it must be 61; 138 Id. presumed that the judgment was no: reversed, or the new trial granted, upon a question of fact, unless the contrary clearly appears in the record body of the judgment or or ser appealed from. 1339 [Am'd 1895, amendment to take effect January 1, 1896.] Where an appeal to the court of appeals, from a judg. ment, rendered by the appellate division of the supreme court, upon a verdict, subject to the opinion of the court, has been perfected, a case, containing a concise statement of the facts, of the questions of law arising thereupon and of the determination of those que tions by the appellate division, must be prepared and settl d, by or under the direction of the court below, and annexed to the judgment-roll. 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. 376; 147 Id. 692; 14 Id. 18 NY. 231. TITLE III. Appeal to the supreme court from an inferior court. 1340. Appeal from judgment.] stay of proceedings. heard. 1341. Limitation of time; 8e- § 1344. Appeal, where and how 1345. Judgment, or order, where § 1340. [Am'd 1838, 1895, amendment to take effect January 1, 1896.] Except appeals from inferior and local courts heretofore heard in the court of common pleas for the city and county of New York, and the superior court of Buffalo, an appeal may be taken to the appellate division of 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, and apon such appeal, an order granting or refusing a new trial for any of the cinses mentioned in section nine hundred and ninety-nine of this act, made by any of said courts, and questions of facts, may be reviewed in the same manner and the same extent as questions of fact may be reviewed, 19 Hun, 74. 13 Week. 479. 1 Hun, 74; 25 Id. 237; Id. 303. upon appeal to the appellate division of the supreme court from a final judgment and order, granting or refusing a new trial, rendered by the same court. Appeals from inferior and local courts heretofore heard in the court of common pleas for the city and county of New York and the superior court of Buffalo, may be taken to the supreme court. § 1341. [Am'd 1877, 1890.] An appeal authorized by the last section must be taken within thirty days after service upon the attorney for the appellant, of the copy of the judgment, and written notice of the entry thereof; security is not required to perfect the appeal, but to stay the execution of the judgment security must be given, 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. § 1342. [Am'd 1881, 1895, amendment to take effect January 1, 1896.] An appeal may also be taken as provided by section thirteen hundred and forty, from an order affecting & substantial right, made by the court or a judge, in an action 102 N.Y. 383. brought in, or taken by appeal to, a court specified in the last section. 18 Week. Dig. 510. 16 Misc. 362. § 1343. [Am'd 1877.] 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. 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. § 1344. [Am'd 1895, amendment to take effect January 1, 1896.] An appeal, taken as prescribed in this title, must be heard by the appellate division of the supreme court except that appeals from the judgment of any district court or of the city court in the city of New York, may be heard by the appellate division of the supreme court, or by such justice or justices of the supreme court as may be designated for that purpose by the justices of the appellate division sitting in the first judicial department. In case an appeal is heard by a justice or justices of the supreme court as hereinbefore provided, the justice or justices by whom such appeal was determined, may allow an appeal to be taken to such appellate division from such determination; and appeals from inferior courts heretofore heard by the superior court of Buffalo shall be heard by the appellate division of the supreme court in the fourth judicial department, or by such justice or justices of the supreme court as may be designated for that purpose by the justices of the appellate division of the fourth judicial department. 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, 1315-1346 APPEAL TO SUPREME COURT. 271 $ 1345. [Am'd 1895, amendment to take effect January 1, 29 Abb. N.O 1896.) A judgment or order of the appellate division ren- 479. dered upon an appeal authorized by this title must be entered in the office of the clerk of the appellate division in the department in which the court below is located. A certified copy thereof annexed to the papers transmitted from the court below must be transmitted by the clerk, upon payment of his fees, to the clerk of the county where the court from which the appeal was taken is situated, and shall constitute the judgment roll and remain in his office. The filing of the judgment-roll or the entry of the order as prescribed in this section is a sufficient authority for any proceeding in the court below or before the judge or justice who made the order appealed from which the judgment or order of the appellate court directs or permits. But where the execution of the judgment or order of the appellate court is stayed by an appeal to the court of appeals, the proceedings in the court below or before the judge or justice, who made the order are stayed in like manner. A judgment or order of the supreme court, rendered upon an appeal from a judgment of any district court or of the city court of New York, or an appeal heretofore heard by the superior court of Buffalo, must be entered in the office of the clerk of the county wherein the court below is located, and, with the papers transmitted from the court below, forms the judgment roll which must be filed in the same office. Where the appeal is from the city court of New York, the judgment or order of the supreme court must be entered in the office of the clerk of the said court. TITLE IV. Appeal to the appellate division of the supreme court. ? 1346. [Am'd 1895, amendment to take effect January 1, 19 Hun, 7, 9. 1896.] An appeal may be taken to the appellate division of the supreme court from a final judgment rendered in the supreme court or in any superior city court prior to the first day of January, one thousand eight hundred and ninety-six, 41 Hun, 152. and from a final judgment rendered in the supreme court after said day as follows: 1. Where the judgment was rendered upon a trial by a referee, or by the court without a jury, the appeal may be taken upon questions of law, or upon the facts, or upon both. 2. Where the judgment was rendered upon the verdict of a jury, the appeal may be taken upon questions of law. 123 N.Y.120. § 1347. [Am'd 1895, amendment to take effect January 1, 88 Hun, 325. 1896.] An appeal may be taken to the appellate division of 16 Misc. 150. the supreme court, from an order made prior to the first day of January, one thousand eight hundred and ninety-six, in an action upon notice, at a special term or a trial term of a superior city court, or of the supreme court, or at a term of the circuit court, and from an order made et a special term or trial term of the supreme court, after said day, in either of the following cases: 35 Hun, 434. 1. Where the order grants, refuses, continues, or modifies a provisional remedy; or settles or grants or refuses an application to resettle a case on appeal or a bill of exceptions. 2. Where it grants, or refuses a new trial; except that where specific questions of fact, arising upon the issues, in an action triable by the court, have been tried by a jury, pursuant to an order for that purpose, as prescribed in section nine hundred and seventy-one of this act, an appeal can not be taken from an order, granting or refusing a new trial upon the merits. 3. Where it involves some part of the merits. 4. Where it affects a substantial right. 5 Where, in effect, it determines the action, and prevents a judgment, from which an appeal might be taken. 6. Where it determines a statutory provision of the State to be unconstitutional; and the determination appears from the reasons given for the decision thereupon, or is necessarily implied in the decision. An order, made upon a summary application, after judgment, is deemed to have been made, in the action, within the meaning of this section. 87 N. Y. 409. § 1348. [Am'd 1895, amendment to take effect January 1, 1896.] An appeal may also be taken to the appellate division of the supreme court, from an order, made in an action, upon notice, by a judge or justice, out of court, in a case |