. Benjamin, 12 Johns. 299: Stafford v. Williams, 4 Den. 182; Bellows v. Sackett, 15 Barb. 96; Rue v. Perry, 63 id. 40; Osincup r. Nichols, 49 id 145; Wells v. Cone, 55 id. 585; Onderdonk. Emmons, 2 Hilt. 504; Tryon . Jennings, 12 Abb. 33; 22 How. 421; Teaz v. Christie, 2 Abb. 2591 Drucker v. Patterson, 2 Hilt. 135: Fields v. Moul, 15 Abb. 6; Kasson v. Mills, 8 How. 377; Brownell v. Winnie, 29 id. 193; 29 N. Y. 400; Shaw v. Davis, 55 Barb. 389; Van Slyck v. Snell, 6 Lans. 299. Proceedings on ap peal.-Angell v. Cook, 2 T. & C. 175; Ackley v. Tarbox, 31 N.Y. 564; Norris v. Bleakley, 3 Abb. 107; Glossner v. Wheaton, 2 E. D. Smith, 352; La Motte v. Archer, 4 id. 46; Weed & Lee, 50 Barb. 354; Fanning v. Dent,3 E. D. S. 206; Hardy v. Seelye, 3 Abb. 103; 1 Hilt. 90'; Edwards v. Drew, 2 E. D. Smith, 55; Staats v. Hudson R. R. R. Co., 39 Barb. 298; 23 How. 463; Decker v. Hassell, 26 id. 528; Brownell v. Winne, 22 N. Y. 400; Anonymous, 9 Wend. 503; Blin. Campbell, 14 Johns. 432; Onderdonk v. Ranlett, 3 Hill, 323; Eilert v. Kelly, 4 E. D. S 12; 10 How. 392. What questions may be reviewed on appeal.-Wood v. Randall, 5 Hill, 264; Stephens v. Baird, 9 Cow. 274; Desmond v. Rice, 1 Hilt. 530; Willard. Bridge, 4 Barb. 361; Austin v. Burns, 16 id. 643; Rue v. Berry, 41 How, 385; Avery v. Leach, 9 Hun, 106; Smith v. Hill, 22 Barb. 656; Fulton Heaton, 1 id. 552; Lee v. Schmidt, 1 Hilt. 537; 6 Abb. 183; Austin v. Burns, 16 Barb. 643; Andrews v. Harrington, 19 id. 343; Pruyn v. Tyler, 18 How. 331; Risedorph v. Ingalls, 6 Week. Dig. 340; Eldridge v. Mc Nulty, 45 How. 400; Neff v. Clute, 12 Barb. 446; Hall v. McKechnie, 22 id. 244; Mayor v. Green, 1 Abb. 344; Copely v. Rose, 2 N. Y. 115; Howe Sewing Machine Co. v. Haupt, 7 Daly, 108; Castree v. Gavelle, 4 E. D. S. 425; Neff v. Clute, 12 Barb. 466; Tifft v. Tifft, 4 Den. 175; Young Rummell, 5 Hill, 60; Mayor v. Green, 1 Hilt. 393; Bloodgood v. Overseers of Poor, 12 Johns. 285; Andrews v. Thorp, 1 E. D. S. 615: Miln v. Rus sell, 3 id. 303; Gosling v. Broach, Id. 49; Avogadro v. Bull, 4 id. 384: Andrews v. Harrington, 19 Barb. 343; Aldrich v. Ketcham, 3 E. D. S. 577; People ex rel. Powers, 19 Abb.99. Jurisdiction.-Castree v. Gavelle, 4 E. D. Smith, 425; Felch v. Devlin, 15 Barb. 47; Willins v. Wheeler, 28 id. 669; 17 How. 93; Desmond v. Rice, 1 Hilt. 530; Tiffany v. Gilbert, 4 Barb. 320; Pearson v. Fiske, 7 Abb. 419; Pollock v. Hoag, 4 E. D. S. 473; Seymour v. Bradfield, 35 Barb. 49; Luckey v. Frantzkee, 1 E. D. Smith, 47; Briggs v. Evans, id. 192; Doughty v. Crosier, 9 Abb. 411; Shaw v. Davis, 55 Barb. 389. Proof, etc.-Ranney v. Gwynne, 3 E. D. S. 59; Gehaar v. Ross, 1 Hilt. 117; Whitlock v. Bueno, 1 Hilt. 72; Austin v. Burns, 16 Barb. 643; Carter v. Dallimore, 2 Sandf. 222; Alburtis v. Mc Cready, 2 E. D. Smith, 39; Moore . Noble, 52 Barb. 425; Everett v. Parks, 62 id. 9; Mayor v. Hyatt, 3 E. D. S. 156; Main v. Eagle, I íd. 619; Bart v. Smith, 5 Barb. 283; Harper v. Leal, 10 How. 276; Buck v. Waterbury, 13 Barb. 116; Decker v. Myers, 31 How. 372; Belden v. Nicolay, E. D. S. 14; Harper v. Leal, 10 How. 276; Crane v. Hardman, 4 E. D. S. 448; Moore v. Somerindyke, 1 Hilt. 199; Wentworth v. Buhler, 3 E. D. Smith, 305; Rayınond v. Richardson, 4 id. 171; McAlister v. Sexton, id. 41; Heim v. Wolf, 1 id. 70 Searles v. Cronk, 38 How. 320; Baker v. Bonesteel, 2 Hilt. 397; Burnham v. Butler, 31 N. Y. 480; Alford v. Ste vens, 63 Barb. 29; Dempsey v. Paige, 4 E. D. S. 218; Pozzoni v. Hender. son, 2 id. 146; Kinney v. Pudney, 6 How, 258; Rogers v. Ackerman, 22 Barb. 134; McLaughlin v. Barnard, 2 E. D. S. 72: Morrill v. Whitehead, 4 id. 239; Parker v. Eaton, 25 Barb. 122; Tibbetts v. Percy, 24 id. 39; Tattersall v. Hoss, 1 Hilt. 56; Walsh v. Cornett, 17 Hun, 27; Doughty v. Crozier, 9 Abb. 411; Loyd v. Fox, 1 E. D. S. 101. Jury, etc.-Pettit v. Ide, 12 Abb. 44; Van Kirk v. Wilds, 11 Barb. 520, Carland . Day, 4 E. D. S. 251; Needles v. Howard, 1 id. 54; Mitchell v. Menkle, 1 Hilt. 142; Harpell v. Curtis, 1 E. D. S. 78; Weed v. Lee, 50 Barb. 354; Burgett v. Edwards, 4 Lans. 193; Althouse v. Rice, 4 E. D. S. 347; Cropsey v. Murphy, Hilt. 126: Cady v. Fairchild, 18 Johns. 129; Stephens v. Wider, 82 N. Y. 351; Barrick v. Austin, 21 Barb. 241; Lambert v. Seely, 17 How. 432; Allen v. Stone, 9 Barb. 60; Prentiss . Sprague, 1 Hilt. 428; Watsc v. Davis, 19 Wend. 371; Wiseman v. Panama R. R. Co., Hilt. 300. § 3064. When new trial in justice's court may be directed. If the appeal is taken by a defendant, whe failed to appear before the justice, either upon the return of the summons, or 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 appel late 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. Code of Proc., part of 366. Bunker v. Latson, 1 E. D. S. 410; Edwards . Drew, 2 id. 50; Hunt v. Westervelt, 4 id. 225; Jewel v. Heinzel, 6 Daly, 411; Armstrong v. Craig, 18 Barb. 387; Gardner v. Wright, 3 E.D. 8. 334; Camp v. Stewart, 2 id. 88; Forster v. Capewell, 1 Hilt. 47; Mayor v. Green, id. 393; Ball v. Mander, 19 How. 468; Seymour v. Elmer, 4 E. D. S. 199; Mulhern v. Hyde, 3 id. 177, Lent v. Jones, 4 id. 52; Beach v. McCann, 1 Hilt. 256; Fowler v. Colyer, 2 E. D. S. 125; Wavel v. Wiles, 24 N. Y. 635; Mitchell v. Menkle, 1 Hilt. 142; Gottsberger v. Harned, 2 E. D. S. 128; Travis v. Bassett, 3 id. 171; Haughey v. Wilson, 1 Hilt. 259; Waring v. McKinley, 62 Barb. 612; Fitch v. Devlin, 15 id. 47: Williams v. McCauley, 3 E. D. S. 120; Muber v. Held, 3 Abb. Pr. 110. § 3065. [Amended, 1893.] Id.; proceedings before justice.—Where a new trial is directed before a justice, as prescribed in the last two sections, 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. Laws 1893, ch. 380; took effect April 13, 1893. § 3066. Costs; when awarded. Upon an appeal provided for in this article, the award of costs is regu lated 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 appel late 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. Id., part of 368, 371. Jacks v. Darrin, 1 Abb. 232; Wood v. Brown, 6 Daly, 428; Snyder v. Goodrich, 2 E. D. S. 84; Chapin v. Churchill, 12 How. 367; Hahn v. Van Doren, í E. D. S. 411; ́ Main v. Eagle, 1 id. 619; Logue v. Gillick, i.. 398. § 3067. Amount of costs. Upon an appeal, provided for in this article, costs, when awarded, must be as follows, besides disbursements: To the appellant, upon reversal, thirty dollars. To the respondent, upon affirmance, twenty-five dol lars. Code of Proc., part of 71, amended. ARTICLE THIRD. APPEAL FOR A NEW TRIAL IN THE APPELLATE COURT. BEC. 3068. When appellant may demand new trial in appellate court. 3069. Undertaking to be given. 3070. Offer to compromise before return. § 3068. [Amended, 1893.] When appellant may demand new trial in appellate court.-Where an issue of fact or an issue of law was joined before the justice, and the sum, for which judgment was demanded by either party in his pleading, exceeds fifty dollars; or where, in an ac tion to recover a chattel, the value of the property, as fixed, together with the damages recovered, if any, exceeds fifty dol lars; the appellant may, in his notice of appeal, except when the appeal is to the county court of Kings county, demand a new trial in the appellate court; and thereupon is entitled thereto, whether the defendant was or was not present at the trial. An appeal from a judgment of a justice's court or by a justice of the peace in the city of Brooklyn, or any of the towns in the county of Kings must be taken and disposed of in the manner prescribed in articles first and second of this chapter and title, and not other. wise. Laws 1893, ch. 380; took effect April 13, 1893. §3069. Undertaking to be given.-To render such an appeal effectual, the appellant must at the time of the service of the notice of appeal upon the justice, give the undertaking required, by this title, to stay the execution of the judgment. Id., part of 355. Kuntz v. Litz, 8 Hun, 14; Lake v. Kels, 11 Abb. N. S. 37. § 3070. [Amended, 1895.] Offer to compromise before return.-Upon an appeal, provided for in this article, from a judgment for a sum of money only, either party may, within fifteen days after service of the notice of appeal, serve upon the adverse party, or upon his attorney, a written offer to allow judgment to be rendered in the appellate court, in favor of either party, for a specified sum. If the offer is not accepted, it cannot be proved upon the trial. If the party, within ten days after service of the offer upon him, serves upon the party making the same, or upon his attorney, written notice that he accepts the offer, he must file it, with an affidavit of service of the notice of acceptance, with the clerk of the appellate court, who thereupon must enter judgment accordingly. Where an offer is made as above provided, the party refusing to accept the same shall be liable for costs of the appeal, unless the recovery shall be more favorable to him than the sum offered. If neither party makes an offer, as provided herein, the party in whose favor the verdict, report or decision in the appellate court is given, shall be entitled to recover his costs upon the appeal. Costs when awarded according to the provisions of this section shall be in amounts provided in section three thousand and seventy-three of this article. In effect, as amended, Sept. 1, 1895; L. 1895, ch. 356. See Code of Proc., 8 371. Wallace v. Patterson, 29 How. Pr. 170; Fox v. Nellis, 25 id. 144; Loomis v. Higbie, 29 id. 232; Loveland v. Atwood, 81 id. 467; Hotchkiss v. Banks, 36 i. 61; Reed v. Moore, 31 id. 264, 369; Myers v. White, 37 id. 393; Forsyth e. Ferguson, 27 id. 67; Barnard v. Pearce, 28 id. 232; Gray v. Hannah, 30 id. 155; Putnam v. Heath, 41 id. 262; Bancroft v. Shannon, 42 id. 1: Moran v. McClearns, 43 id. 77; Wyn koop v. Halbert, 43 Barb. 266; Fults v. Wynn, 2 Lans. 153; Jones v. Cook 11 Hun, 230; Doran e. McLaughlin, 14 1d. 623; Vedder v. Van Buren, id. 280; Amsdell v. McCaffrey, 16 id. 255; Ponto v. Phelps, 36 How. Pr. 19: Baldwin v. Brown, 37 id. 385; Pike v.Johnson, 47 N. Y. 1: Smith v. Hinds 30 How. 187: Purvis v. Gray, 39 id. 1; Finney v. Veeder, 45 Barb. 388; Chapin v. Skeels, 20 Hun, 448; Smith v.May, 2 Abb. N. S. 227; Humeston 9. Ballard, 39 How.93; Pearce v Northern Central R. R. Co., 5 Week, Dige 566; Church v. Miller, 46 How. 525, 3071. Proceedings in appellate court. Upon an a peal, provided for in this article, after the expiration of ten days from the time of filing the justice's return, the action is deemed an action at issue in the appellate (court; and all the proceedings therein, including the entry, enforcement, and review of the judgment, are the same, as if the action had been commenced in the appellate court, except as otherwise specially prescribed in this chapter. See Code of Proc., 22 364 and 366. McCann v.Sheike, 5 Week. Dig. 420; Stevens v. Benton, 2 Lans. 156; 39 How. 13; Burton v. Wheeler & Wilson Mfg Co., 5 Week. Dig. 384; Crannell v. Comstock, 12 Hun, 293; Thompson v. Pine, 5 id. 647; Reno v. Millspaugh, 14 id. 229; Shuler v. Myers, 5 Lans 170; Coulter v. Amer. Mer. Un. Ex. Co., id. 67; Savage v. Cock, 17 Abb. 403; Lapham v. Rice, 63 Barb. 485; reversed on other grounds, 55 N. Y. 472; Cook v. Swift, 10 Abb. 212; Maxon v. Reed, 8 Hun, 618; Wavel v. Wiles. 24 N. Y. 635; Merrill v. Pattison, 44 id. 289; Beach v. Skillman, 12 Hun. 297; Hall v. Andrews, 65 N. Y. 572; Calkins v. Power, 8 Week. Dig. 474; Fowler v. Westervelt, 40 Barb. 374; 17 Abb. 59. 3072. Offer to compromise after return.— Either party may, at any time after the action is deemed at issue in the appellate court, and before the trial, serve upon the adverse party, a written offer to allow judg ment to be taken against him, for a sum, or property, or to the effect, therein specified, with or without costs. If there are two or more defendants, and the action can be severed, a like offer may be made by one or more defendants, against whom a separate judgment may be taken; and, if it is accepted, the action becomes se vered, and may proceed against the other defendants, as if it had been originally commenced against them only. If the party receiving the offer, within ten days thereafter, serves upon the adverse party, notice that he accepts it, he may file it, with proof of acceptance; and thereupon the clerk must enter judgment accordingly. If the offer is not thus accepted, it cannot be proved upon the trial; and if the party, to whom it is made, fails to obtain a more favorable judgment, he cannot recover costs from the time of the offer, but must pay costs from that time. Bee Code of Proc., 366. $3073. Amount of costs. Upon an appeal, pro vided for in this article, costs, when awarded, must be as follows, besides disbursements: For all proceedings before notice of trial, fifteen dollars. |