C. 185, executing the undertaking, amounting to a breach of the condition thereof, unless the escape was with the assent of the sheriff or other officer. § 169. [Am'd 1886.] In an action brought as provided in the three last sections, the defendant may make any defense which he might make if the action was brought by the sheriff. § 170. [Am'd 1886.] If the person so entitled to bring an 15 Abb. N. action on the undertaking for the jail liberties, in lieu of making such election brings an action against the sheriff for the escape, the court may, except where the escape was made with sheriff's assent, stay proceedings upon a judgment recovered against the sheriff, with such limitations and upon such terms as it deems just, until he has had a reasonable time to prosecute the undertaking and collect a judgment recovered thereon. 171. In an action against a sheriff or other officer, for the escape of a prisoner, it is a defence, that the escape was without the assent of the defendant, and that at the commencement of the action, he had the prisoner within the liberties, either by his voluntary return, or by recapture. § 172. In an action or special proceeding, to which the sheriff of a county is a party, a coroner of the same county has all the power, and is subject to all the duties of a sheriff, in a cause to which the sheriff is not a party; except as otherwise specially prescribed by law. 173. A mandate in a civil action or special proceeding which must or may be executed by the coroners, or by a cor. orer of a county, must be directed either to a particular cor. oner, or generally to the coroners of that county. Where such a mandate is directed generally to the coroners of a county, or requires them to do any act, it may be executed. and a return thereto may be made and signed, by one of them, but such an act or return does not affect the others. § 174. [Am'd 1886.] Where a mandate requiring the arrest of the sheriff of the county, is directed to a coroner, he must execute the same in the manner prescribed by law, with respect to the execution of a similar mandate by a sheriff. and he is authorized to take an undertaking on the arrest, or an undertaking for the jail liberties in a like case, and in like manner, and with like effect, as where such an undertaking may be taken by a sheriff. § 175. Where the actual confinement of a sheriff by a coroner, on a mandate, is required or authorized by law, he must be confined by the coroner, in a house situated within the lib trties of the jail of the county, other than the sheriff's house, or the jail, in the same manner as a sheriff is required by law to confine a prisoner in the jail. § 176. That house thereupon become the jail of the county, for the use of the coroner; and each provision of law relating to the jail or to an escape from the jail, applies thereto, while the sheriff is confined therein. § 177. [Am'd 1886.] A sheriff so arrested must be admitted to the liberties of the jail of the county, in a like case, and upon executing a like undertaking to the coroner, as prescribed by law for a prisoner in the sheriff's custody. For an escape of the sheriff from the liberties, the coroner is liable, in the same manner and to the same extent as a sheriff for a similar escape, and he may make the same defence as a sheriff. § 178. [Am'd 1886.] The coroner may prosecute an undertaking for the liberties taken by him, and is entitled to all the rights and subject to all the liabilities prescribed by law, with respect to a similar undertaking taken by a sheriff. The undertaking may be assigned by him to the party at whose instance the sheriff was arrested, and the same proceedings may be had thereupon as upon an undertaking taken and assigned by a sheriff in a similar case. 179. A person arrested by a coroner, in an action or special proceeding, in which the sheriff of the county is plaintiff, must be confined in the jail of the county, in a case where such a confinement is required or authorized by law; but the coroner is not liable for an escape of the prisoner from the jail, after he has been confined therein. A person so confined must be kept and treated, in all respects, like a prisoner confined by the sheriff. § 180. [Am'd 1886.] A person so arrested by a coroner is entitled to be discharged, or to the liberties of the jail, as the case requires, upon giving an undertaking to the coroner in the like manner, and in a like case, in which a person arrested by a sheriff would be entitled to be discharged, or to the liberties. The undertaking so given must be in all respects similar to that required to be given to a sheriff, and it has the like effect, and may be assigned and proceeded upon in like man ner. § 181. A coroner is answerable for an escape of a prisoner, admitted by him to the liberties of the jail, in the same manner and to the same extent, as a sheriff, and may interpose a like defence. TITLE IV. Powers, duties and liabilities of an incoming and outgo. ing sheriff, respectively, touching the matters included in this chapter.* *For the law regulating sheriffs in the county of New York, see L. 1890 c 523. 9 How. Pr. N. 8. 236. 188. Delivery of prisoners, pro cess, etc., how enforced. 189. Under-sheriff, etc., when to comply with the foregoing provisions. §182. Where a new sheriff has been elected or appointed, and has qualified and given the security required by law, 2N.Y.Supp. the clerk of the county must furnish to the new sheriff a certificate, under his hand and official seal, stating that the person so appointed or elected, has so qualified and given security. 501. 84 N. Y. 222. 83 N. Y. 174. 88 N. Y. 403. 84 N. Y. 222. $183. Upon the commencement of the new sheriff's term of office, and the service of the certificate on the former sheriff, the latter's powers as sheriff cease, except as otherwise expressly prescribed by law. § 184. Within ten days after the service of the certificate, upon the former sheriff, he must deliver to his successor : 1. The jail, or if there are two or more, the jails of the county, with all their appurtenances, and the property of the county therein. 2. All the prisoners then confined in the jail or jails. 3. All process, orders, commitments, and all other papers and documents, authorizing, or relating to the confinement or custody of a prisoner, or, if such a process, order, or commitment has been returned, a statement in writing of the contents thereof, and when and where it was returned. 4. All mandates, then in his hands, except such as he has fully executed, or has begun to execute, by the collection of money thereon, or by a seizure of or levy on money or other property, in pursuance thereof. § 185. At the time of the delivery, the former sheriff must execute an instrument, reciting the property, documents. and prisoners delivered, specifying particularly the process or other authority, by which each prisoner was committed and is detained, and whether the same has been returned or is de livered to the new sheriff. The instrument must be delivered to the new sheriff, who must acknowledge, in writing, upon a duplicate thereof, the receipt of the property, documents and prisoners, therein specified; and deliver such duplicate and acknowledgment to the former sheriff.* § 186. Notwithstanding the election or appointment of a new sheriff, the former sheriff must return, in his own name, each mandate which he has fully executed; and must proceed with and complete the execution of each mandate which he has begun to execute, in the manner specified in subdivision fourth of the last section but one. § 187. Where a person, arrested by virtue of an order of arrest, is confined, either in jail, or to the liberties thereof, at the time of assigning and delivering the jail to the new sheriff, the order, if it is not then returnable, must be delivered to the new sheriff, and be returned by him at the return day thereof, with the proceedings of the former sheriff and of the new sheriff thereon. § 188. If the former sheriff neglects or refuses to deliver to his successor, the jail, or any of the property, documents of prisoners in his charge, as prescribed in this title, his succes sor must, notwithstanding, take possession of the jail, and of the property of the county therein, and the custody of the *For law regulating sheriff's office in New York county, see L 1890 e 523 16. prisoners therein confined, and proceed to compel the delivery of the documents withheld, as prescribed by law. § 189. If, at the time when a new sheriff qualifies, and gives the security required by law, the office of the former sheriff is executed by his under-sheriff, or by a coroner of the county, or a person specially authorized for that purpose, he must comply with the provisions of this title, and perform the duties thereby required of the former sheriff. CHAPTER III. CIVIL JURISDICTION OF THE PRINCIPAL COURTS TITLE I. THE COURT OF APPEALS. TITLE II.-THE SUPREME COURT, INCLUDING THE CIRCUIT TITLE III.-THE SUPERIOR CITY COURTS. TITLE IV.-THE MARINE COURT OF THE CITY OF NEW YORK. TITLE I. The court of appeals. ARTICLE 1. Jurisdiction, and mode of exercising the same; general powers; terms and sittings. 2. The clerk of the court. 3. The state reporter; publication and distribution of the ARTICLE FIRST. JURISDICTION, AND MODE OF EXERCISING THE SAME; GENERAL 2190. Cases in which court of appeals has jurisdiction. 191. Exceptions and qualifications. 192. Appeals from certain orders, how heard. 193. Court may make rules. 194. Remittitur; when judg thereupon. 8 195. Second and subsequent 196. Times and places of hold- 197. Court may be held in any ment absolute to be rendered, and proceedings § 190. [Am'd 1882.] The court of appeals has exclusive jurisdiction to review, upon appeal, every actual determination, made at a general term, by the supreme court, or by either of the superior city courts, in either of the following cases, and no others: 1. Where a final judgment as been rendered, in an action commenced in either of those courts, or brought there from another court; and upon such an appeal, to review an interlocutory judgment or intermediate order, involving the merits, and necessarily affecting e final judgment. 13 Week. Dig. 29, 86. 82 N. Y. 506; 86 Id. 162; 2. Where an order has been made in such an action, affecting a substantial right, and not resting in discretion, which either (first) in effect determines the action, and prevents a final judgment, or (second) discontinues the action, or (third) 121 Id. 57. grants or refuses a new trial, or (fourth) strikes out a pleading or part of a pleading, or (fifth) decides an interlocutory application, or a question of practice, or (sixth) determines a statutory provision of the State to be unconstitutional, and the determination appears from the reasons given for the decision, or is necessarily implied in the decision. 3. Where a final order, affecting a substantial right, has been made in a special proceeding, or upon a summary application in an action, after judgment; and, upon such an appeal, to review any intermediate order, involving the merits, and necessarily affecting the order appealed from. 4. When an interlocutory judgment has been entered on the decision of a demurrer, provided that the appeal shall be taken within sixty days after the service on the attorney for the appellant of a copy of the judgment and notice of the entry thereof, and provided also that, excepting in the case of appeals now pending, the general term shall certify that in its opinion the question arising therein is of sufficient importance to render a decision by the court of appeals desirable before proceeding farther. So much of the provisions of the subdivision hereby added to said section one hundred and ninety as precedes the second proviso thereof, shall apply to appeals already pending in the court of appeals, as well as to those that may hereafter be brought, excepting that so much of said subdivision as limits the time for the taking of said appeals shall not be applicable to appeals already pending. § 191. [Am'd 1877, 1887, 1888.1 But the jurisdiction, conferred by the last section, is subject to the following limita tions, exceptions, and conditions: 101 Id. 17; 107 Id. 645; 108 Id. 518; 117 Id. 75. 1. An appeal cannot be taken, from an order granting a new trial, on a case or exceptions, unless the notice of appeal contains an assent, on the part of the appellant, that if the order is affirmed, judgment absolute shall be rendered against the appellant. 2. An appeal cannot be taken in an action commenced in å court of a justice of the peace or in the city court of New York, or in a district court of that city, or in the city court of Yonkers, or in a justice's court of a city, unless the court below allows the appeal by an order made at the general term which rendered the determination, or at the next general term after judgment is entered thereupon. An action discontinued because the answer set forth matter showing that the title to real property came in question, and afterward prosecuted in another court, is not deemed to have been commenced in the court wherein the answer was interposed, within the meaning of this subdivision. 3. An appeal cannot be taken from a judgment, or from ar order granting or refusing a new trial, except in an action o special proceeding affecting the title to real property, or a interest therein, if the matter in controversy, excluding costs is less than five hundred dollars; unless the court below, br an order made at the general term which rendered the deter mination, or at the next general term after judgment is entered thereupon, allows the appeal, on the ground that a ques tion of law is involved, which ought to be reviewed by th court of appeals. If an appeal is taken, by the plaintiff, from a judgme rendered in an action not founded upon a contract, the sum fot which the complaint demands judgment, or, if the action is t |