special term, denying a motion to set aside a judicial sale made under a judgment. Such an order is final. It affects a substantial right, and it is an order made upon a summary application in an action after judgment. King v. Platt, 2 Abb. Ct. App. 527; S. C., 34 How. 26; 3 Abb. N. S. 174. But an appeal does not lie to the court of appeals, from an order granting an injunction or appointing a receiver, except in cases where the court below has no power to make such order. Fellows v. Heermans, 13 Abb. N. S. 1. tions and § 191. [Amended, 1877.] But the jurisdiction, conferred by the Exceplast section, is subject to the following limitations, exceptions, and qualificaconditions: 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 a court of a justice of the peace, or in the marine court of the city of NewYork, or in a district court of that city, or in the city court of Yonkers, or in a justices' 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 afterwards 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 an order granting or refusing a new trial, except in an action or special proceeding affecting the title to real property, or an interest therein, if the matter in controversy, excluding costs, is less than five hundred dollars; unless the court below, by an order made at the general term which rendered the determination, or at the next general term after judgment is entered thereupon, allows the appeal, on the ground that a question of law is involved, which ought to be reviewed by the court of appeals. If an appeal is taken, by the plaintiff, from a judgment rendered in an action not founded upon a contract, the sum for which the complaint demands judgment, or, if the action is to recover one or more chattels, the value of the chattels, as stated in the complaint, is deemed to be the amount of the matter in controversy, within the last subdivision, unless the defendant has interposed a counterclaim; in which case the counterclaim must be included, in determining the amount in controversy. tions. Appeals from certain orders, how heard. Court may make rules. Remittitur; when judgment to be and pro Subd. 1 and 2 contain the limitations, etc., of Code Pro., § 11, amended. Subd. 3 is a substitute for Laws of 1871, ch. 282, § 8, and Laws of 1874, ch. 322; 9 Edm. St. 895. The last mentioned act is held to be constitutional, and to embrace within its provisions a judgment of affirmance. Butterfield v. Rudde, 58 N. Y. (13 Sick.) 489. Under it, the amount of a judgment, without reference to the interest after recovery, is made the test of its appealability. Ryan v. Waule, 63 N. Y. (18 Sick.) 57. Where a respondent seeks to restrict the general right to appeal by applying the limitation prescribed in the act, it is for him to show that the subjectmatter of the controversy does not exceed $500. People v. Horton, 64 N. Y. (19 Sick.) 58. And see, as further construing the act of 1874, King v. Galvin, 62 N. Y. (17 Sick.) 238; Sprague v. Western Union Telegraph Co., 64 N. Y. (19 Sick.) 658. § 192. An appeal from an order, under subdivision second of the last section but one, except an order which in effect determines the action and prevents a final judgment, or discontinues the action, or grants or refuses a new trial upon a case or exceptions, may be noticed for hearing on a motion day, and heard as a motion. This section regulates the hearing of appeals from orders enumerated in clauses 4, 5, and 6, ante, § 190, subd. 2. § 193. The court may from time to time make, alter, and amend rules, not inconsistent with the constitution or statutes of the State, regulating the practice and proceedings in the court, and the admission of attorneys and counsellors at law, to practice in all the courts of record of the State. Adopted from Laws of 1870, ch. 203, § 2; 7 Edm. St. 671; Laws of 1871, ch. 486, § 1; 9 Edm. St. 95. § 194. The judgment or order of the court of appeals must be remitted to the court below, to be enforced according to law. Upon absolute an appeal from an order granting a new trial, on a case or exceprendered, tions, if the court of appeals determines that no error was commitceedings ted in granting the new trial, it must render judgment absolute upon the right of the appellant; and after its judgment has been remitted to the court below, an assessment of damages, or any other proceeding, requisite to render the judgment effectual, may be had in the latter court. there upon. Second and subsequent appeals. Parts of §§ 11 and 12, Code Pro. See 1 Wait's Pr. 288-290; Wait's Code, 27, 35; Hubbell v. Meigs, 50 N. Y. (5 Sick.) 480; Johnson v. Albany, etc., R. R. Co., 54 N. Y. (9 Sick.) 416. No appeal lies from a judgment entered in the court below upon a remittitur from the court of appeals. The remittitur controls the court below, and a judgment in pursuance of it cannot be said to be an actual determination. Wilkins v. Earle, 46 N. Y. (1 Sick.) 358; S. C., 42 How. 255. § 195. Upon a second and each subsequent appeal, including a case where a former appeal has been dismissed for a defect or irreg ularity, the time of filing the return, upon the first appeal, determines the place of the cause upon the calendar. Part of § 13, Code Pro. See Wait's Code, 35, 36. and places § 196. The terms of the court of appeals must be appointed to Times be held, at such times and places as the court thinks proper, and con- of holding tinued as long as the public interest requires. Laws of 1870, ch. 203, part of § 1; 7 Edm. St. 670; Laws of 1849, ch. 333, part of § 1; 4 Edm. St. 537, consoli- terms. may be any § 197. A term of the court may be appointed to be held in a Court building, other than that designated by law for holding courts. A held in term may be adjourned from the place where it is appointed to be building; held, to another place in the same city. One or more of the judges ments. may adjourn a term, without day, or to a day certain. Adopted from 16, Code Pro., su- 2 and 3; 4 Edm. St. 537. See Wait's perseding Laws of 1849, ch. 333, §§ Code, 37. adjourn to be ap § 198. The court may, from time to time, by an order entered in officers its minutes, appoint and remove its clerk, its reporter, and such pointed attendants as it deems necessary. Const., art. 6, part of § 2, superseding Laws of 1864, ch. 95, § 1; 6 Edm. St. 237. ARTICLE SECOND. THE CLERK OF THE COURT. SEC. 199. Clerk of the court of appeals to give bond; rooms for his office. 200. To appoint a deputy. Powers of deputy. 201. May employ assistants in his office. Special deputy. 202. Is successor of former clerk of court of appeals. 203. Money in custody of clerk to be deposited in bank. 204. Clerk to report to court of appeals, concerning money. 205. Amount deposited to be certified by cashier. 206. Court may order money to be invested; restriction as to drawing money from bank. 207. Court may appoint person to examine accounts. 208. Court may make rules concerning money. by court. the court to give rooms for § 199. The clerk of the court of appeals, before entering upon Clerk of the duties of his office, must subscribe, and file the constitutional of appeals oath of office, and must execute, and file in the comptroller's office, bond; a bond to the people of the State, in the penalty of twenty-five his office. thousand dollars, with two sufficient sureties, approved by the comptroller, and conditioned for the faithful performance of the duties of his office. If the bond is forfeited by a breach of its condition, the court of appeals must, by order, direct an action to be brought thereon. The money recovered must be applied, under the direction To appoint a deputy. Powers of deputy. May employ in his office. Special deputy. of the court of appeals, to indemnify the persons aggrieved by the breach, in proportion to their respective losses, and to make good any other loss, occasioned by the breach. The clerk must keep his office at the city of Albany, and the trustees of the State-hall must assign him suitable rooms therein, for that purpose. Const., art. 6, part of § 20; Laws of 1847, ch. 277, § 14; 4 Edm. St. 556; Laws of 1847, ch. 276, § 15; 3 Edm. St. 48, consolidated and amended. § 200. The clerk, by a writing, under his hand and the seal of the court, filed in his office, from time to time must appoint, and may at pleasure remove, a deputy-clerk, who is entitled to a salary, fixed and to be paid as prescribed by law. Before entering upon his duties, the deputy-clerk must subscribe, and file in the clerk's office, the constitutional oath of office. While the clerk is absent from his office, or from the sitting of the court, or the office of clerk is vacant, the deputy-clerk has all the powers, and is subject to all the duties. of the clerk. Laws of 1847, ch. 277, § 12; 4 Edm. St. 555, as modified by Laws of 1871, ch. 718; 9 Edm. St. 173. § 201. [Amended, 1877.] The clerk may, with the approbation in assistants writing, of the judges of the court, or a majority of them, employ as many assistants in his office, as are necessary. He may from time to time appoint, and at pleasure remove, his assistants. Each assistant is entitled to a compensation, fixed and to be paid as pre scribed by law. The clerk may appoint one of his assistants as special deputy-clerk: who possesses, in the absence of the clerk and the deputy-clerk, the same power and authority as the clerk, at any sitting of the court which he attends, with respect to the business transacted thereat. Is successor of former clerk of court of appeals. Money in custody of clerk Laws of 1847, ch. 277, § 13, as modified 556, amended by the addition of the by Laws of 1871, ch. 718; 4 Edm. St. last sentence. § 202. All money, stocks, securities, bonds, mortgages, and other things in action, and other property, which were possessed by the last clerk of the court of appeals, elected by the people, by virtue of his office, have been transferred to, and have become possessed by and vested in, the clerk appointed by the court, as the successor in office of the last elected clerk, notwithstanding the change in the mode of appointment to the office, and in the tenure thereof. New provision. See Laws of 1870, ch. 203, § 9; 7 Edm. St. 672. § 203. All money, now in the custody or under the control of the clerk, and all other money which may hereafter be paid to or received deposited by him, on account of a fund, or in a cause, must be deposited, until to he invested as prescribed in this article, in such bank or banks as the in bank. court of appeals directs. Accounts thereof must be kept with the banks, in manner and form as the court directs. Laws of 1863, ch. 200, § 1; 6 Edm. and in Laws of 1871, ch. 718; 9 Edm. St. 88, amended by including the fund St. 173. mentioned in Laws of 1849, ch. 300, report to § 204. On the first Tuesday of January, and on the first Tues- Clerk to day of July, in each year, the clerk must transmit to the chief-judge, court of a statement, verified by his affidavit, of all money, then remaining conin court or in his hands, which must specify: 1. The fund, or the title of the cause, in or on account of which each sum of money was paid. 2. The party by whom it was paid, and generally for what purpose. 3. The time of payment, and the amount paid. 4. The bank in which it is deposited. Laws of 1863, ch. 200, § 2, amended, as in preceding section. appeals, cerning money. tifled by $ 205. The statement must be accompanied with a certificate of Amount deposited the cashier of each bank, in which a deposit is stated to have been to be cermade, to the effect, that the total amount stated to be deposited is cashier. actually in the bank, placed to the credit of the clerk, as clerk of the court of appeals, and not mingled with any other account. Laws of 1863, ch. 200, § 3; 6 Edm. St. 88. may money vested; tions as to § 206. The court may, by order, direct any portion of the money Court to be invested in the public debt of the State, or of the United order States, or in approved interest-bearing mortgages upon real property. to be inIt may in like manner direct any sum of money, or any security, to restric be transferred or disposed of, as the court thinks proper. The clerk drawing shall not invest any money, except pursuant to such a direction. from Money deposited shall not be drawn from the bank, except on a check, signed by the clerk, and countersigned by the chief-judge, or, in his absence, by an associate judge of the court. Laws of 1863, ch. 200, § 4, amended. money bank. may person to § 207. The court may also, from time to time, appoint a suitable Court person to examine the accounts kept by, and the securities in the appoint custody of the clerk, who shall be paid by the comptroller, for that examine service, a reasonable sum, certified by the chief-judge. Laws of 1863, ch. 200, § 5. accounts. |