2 Civ. Pro. 142. 2 Civ. Pro. 420. 45 Hun, 319. 17 Misc, 365. tion issued thereupon is returned wholly or partly unsatisfied; the sureties will pay the amount of the judgment, or the portion thereof remaining unsatisfied, not exceeding a sum, specified in the undertaking, which must be at least one hundred dollars, and not less than twice the amount of the judgment; or, if the judgment in the justice's court is for the recovery of a chattel, that the sureties will pay the suin fixed by that judgment as the value of the chattel, together with the damages, if any, awarded for the taking, withholding, or detention thereof. A copy of the undertaking, with a notice of the delivery thereof, must be served with the notice of appeal, and in like manner. Section one thousand three hundred and thirty-five of this act applies to such an undertaking. 3051. The delivery of the undertaking to the justice or to his clerk appointed pursuant to law, and service of a copy thereof, and of notice of the delivery thereof, stay the issuing of an execution upon the judgment. If an execution has been issued, the service of a copy of the undertaking, certified by the justice or the clerk, or accompanied with an affidavit, showing that it is a copy, and that the original has been duly filed, upon the officer holding the execution, stays further proceedings thereunder. $3052. Where the justice is dead, or cannot, with due diligence, be found within the county, and he has no clerk, appointed pursuant to law, or the clerk cannot, with due diligence, be found within the county, the undertaking may be filed with the clerk of the appellate court. In that case, notice of the filing must be given to the respondent, as prescribed in section three thousand and forty-eight of this act, for service of a notice of appeal upon him. The filing of the undertaking has the same effect, as the delivery thereof to the justice; and a copy thereof, certified by the county clerk, served upon the officer holding an execution, has the same effect, as if it were certified, as prescribed in the last section. 3053. The justice must, after ten and within thirty days from the service of the notice of appeal, and the payment of the costs and fee, as prescribed in section thre thousand and forty-seven of this act, make a return to the a pellate court, annex thereto the notice of appeal and the undertaking, if any has been delivered to him or to his clerk, and file the same with the clerk of the appellate court. The return must contain all the proceedings, including the evidence and the judgment; unless the appellant has, in his notice of appeal, demanded a new trial, in a case where he is entitled thereto, as prescribed in article third of this title. In a latter case, the justice must return the summons, together with each warrant of attachment, order of arrest, or requisition to replevy, or execution granted by him in the action, with the proof of the service thereof; the pleadings or copies thereof; the proceedings upon the trial; and the judgment; with a brief statement of the amount and nature of the claims litigated by the parties. But he need not return the evidence, or any part thereof, unless he is required so to do by the special order of the appellate court. 3054. Where the justice has gone out of office, he must nevertheless, make a return in the same manner, and his return has the same effect, as if he remained in office. § 3055. If the return is defective, the appellate court may direct the justice to make a further or amended return, as often as is necessary. The appellate court may compel the justice, by attachment, to make and file a return, or a further or amended return. The court is always open for those purposes. Where the justice has removed to another county of the State, the appellate court may compel him to make the return, as if he was still within the county where the judgment was rendered. State R. p § 3056. If the justice dies, becomes a lunatic, absconds, 26 N. Y. removes from the State, or otherwise becomes unable to make the return, the appellate court may receive affidavits, or examine witnesses, as to the evidence and other proceedings taken, and the judgment rendered, before the justice; and may determine the appeal, as if a return had been duly made by the justice. 481 132 N. Y. 363 16 Mise 430 23 Id. 145. 3057. Where an appeal is founded upon an error in fact 49 Hun, 503 in the proceedings, not affecting the merits of the action, 10 Mise. 732. and not within the knowledge of the justice, the court may 23 Id. 700. determine the matter upon affidavits; or, in its discretion, upon the examination of witnesses; or in both methods. $3058. Where the judgment of the justice is reversed or modified, the appellate court may make or compel resti tution of property or of a right, lost by means of the erro neous judgment; but not so as to affect the title of a purchaser, in good faith and for value, of property sold by virtue of a warrant of attachment in the action, or an execution issued upon the judgment. In that case, the appellate court may compel the value, or the purchaseprice to be restored, or deposited to abide the event of the action, as justice requires. Six days' notice of an application for an order for restitution must be given; and if the application is granted before judgment, the proper direction may be included therein. § 3059. If, upon the appeal, a sum of money is awarded to one party, and costs are awarded to the adverse party, the appellate court must set off the one against the other, and render judgment for the balance. § 3060. Where costs are awarded to the appellant he may include, in the disbursements upon the appeal, the costs and fee paid to the justice upon taking the appeal; and, where the judgment rendered by the justice was against the appellant, he may also include, in those disbursements. the costs of the action, before the justice, which he would 34 How. Pr. 515. .8 N. Y. have been entitled to recover, if the judgment of the justice had been in his favor. 3061. The clerk, immediately after entering final judgment upon the determination of an appeal, must attach together and file such of the following papers, as were used upon the appeal; which constitute the judgment-roll: 1. The return of the justice, or a certified copy thereof; the notice of appeal; and the undertaking, if any has been given. 2. The verdict, report, or decision, and each offer, if any, made as prescribed in article third of this title. 3. A certified copy of the judgment, together with each notice of exceptions, or case, which is then on file. 4. Every other paper, then on file, and a certified copy of every order, which in any way involves the merits, or necessarily affects the judgment. ARTICLE SECOND. APPEAL WHERE A NEW TRIAL IS NOT HAD IN THE 3062. Hearing of appeal; dis- § 3065. Id.; proceedings before 3063. Judgment. 3064. When new trial in justice's court may be directed. justice. 3066. Costs; when awarded 3067. Amount of costs. § 3062. [Am'd 1883, 1895, amendment to take effect Janu ary 1, 1896.] If the case is one where the appellant is not entitled to, or has not demanded, a new trial in the appellate court, as prescribed in section thirty hundred and sixty-eight of this act, the respondent may, within twenty days of the service on him of the notice of appeal serve upon the appellant or his attorney a written stipulation that the judgment appealed from may be reversed with five dollars costs and disbursements of the appeal, and thereafter no further steps shall be taken in such appeal, except to enter judgment in pursuance of such stipulation for the enforcement thereof; in case such stipulation shall not be so served, the appeal may be brought to a hearing in the appellate court, at any term thereof, at which such an appeal can be heard, held after the return is filed, upon a notice by either party, of not less than eight days. It must be placed upon the calendar; and must continue thereupon without further notice until it is finally disposed of. If after being regularly placed upon the calendar, neither party brings it to a hearing before the end of the second term thereafter, at which it might be noticed for hearing, and heard the court must dismiss the appeal, unless it directs the same to be continued, for cause shown. § 3063. [Am'd 1893.] In a case specified in the last State Rep. section the appeal must be heard upon the original papers. 665. or a certified copy thereof and a copy or copies thereof need 83 Hun, 283. not be furnished for the use of the court. The appellate 5 App Div. count must render judgment a cor ling to the justice of the 613. case, without regard to technical errors or defects, which do not affect the merits. It may affirm or reverse the judgment of the justice, in whole or in part, and as to any or all of the parties, and for errors of law or of fact. When the appeal is to the county court of Kings county, said court may, up. on its reversal of a judgment, order a new trial before the same justice or before another justice of the same county to be designated in the order, and at a time and place to be specified in the order, and in such a case the costs of the appeal shall be in the discretion of the appellate court. 3064. If the appeal is taken by a defendant, who 8 Civ. Pia failed to appear before the justice, either upon the return 180. of the summons, or at the time to which the trial of the 5 N. Y. action was adjourned; and he shows, by affidavit or other 52 Ilun, 318 Supp. 675. wise, that manifest injustice has been done, and renders a 88 Hun, 186 satisfactory excuse for his default; the appellate court may, 5 App. Div in its discretion, set aside the judgment appealed from, or 17 Misc. 661. stay proceedings thereunder, and by order direct a new 25 App. Div. trial, before the same justice, or before another justice of 292. 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. § 3065. [Am'd 1893.] 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. § 3066. Upon an appeal provided for in this article, the award of costs is regulated 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. 515. 196. 2. If the judgment is reversed for an error in fact, not 25 App. Div. 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 appellate 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. 3067. Upon an appeal, provided for in this article, 9 Misc. 456 costs, when awarded, must be as follows, besides disburse ments: To the appellant, upon reversal, thirty dollars. To the respondent, upon affirmance, twenty-five dollars, 61 How. Pr. 515. 35 Id. 278. 92 Hun, 1. ARTICLE THIRD, APPEAL FOR A NEW TRIAL IN THE APPELLATE Court, $3068. [Am'd 1893.1 Where an issue of fact or an issue of law was joined before the justice and the sum for which 34 Hun, 55. judgment was demanded by either party in his pleadings excee is fifty dollars. or, where in an action to recover a chattel, the value of the property as fixed, together with the damages recovered, if any, exceeds fifty dollars, 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 he 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 ten and disposed of in the manner prescribed in articles first and secon 1 of this chapter and title, and not otherwise. 5 Civ. Pro. 81. 15 Week. 29 Hun, 546. 52 Id. 198. 3069. To render such an appeal effectual, the appel. lant 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. § 3070. [Am'd 1885, 1895, amendment to take effect September 1, 1895.] 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 State Rep. favor of either party, for a specified sum. If the offer is not 901. accepted, it can not be proved upon the trial. If the party, 799 N.Y.555. within ten days after service of the offer upon him, serves & Misc. 204. upon the party making the same or upon his attorney, writ73 Hun, 595. ten notice that he accepts the offer, he must file it, with an 88 Hun, 219. 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 18 N.Y. 289. party refusing to accept the same shall be liable for costs of 6 App. Div 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 80 Hun, 207. 221. 83 Hun, 219 three of this article. § 3071. Upon an appeal, provided for in this article, 6 Misc. 204. 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 appellat 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. |