§ 1287. Notice of a motion to set aside a final judgment, for error in fact, not arising upon the trial, must be given to the adverse party, or, in case of his death, to each person who might have moved, as against the moving party, to set aside the judgment for the same cause, as prescribed in this title. Where the motion is made by the party against whom the judgment is rendered, or by his heir, devisee, executor, or administrator, service of the notice, upon the attorney of record for the party, in whose favor the judgment is rendered, has the like effect, as if it was served upon the party. § 1288. Where the judgment awards real property, or the possession thereof, or where the title to, or an estate or interest in, real property is determined or affected thereby, and the real property, or estate, or interest therein, has been conveyed, by the adverse party, more than eight days before the hearing of the motion, notice of the motion must also be given to each actual occupant of the property, claiming under the convey ance. § 1289. Notice must be given, in a case specified in this title, by personal service of a written notice, or of an order to show cause why the motion should not be granted; or, if a person entitled to notice cannot, with due diligence, be found within the State, in any manner which the court, or a judge thereof, directs in an order to show cause, or which the court directs in a subsequent order. § 1290. A motion to set aside a final judgment, for error in fact, not arising upon the trial, shall not be heard, except as specified in the next section, after the expiration of two years since the filing of the judgmentroll, unless notice thereof is given, for a day within the two years; and either the hearing is adjourned, by one or more orders, until after the expiration of the two years; or the term, for which it is thus noticed, is not held. In the latter event, the motion may be re-noticed for, and heard at, the next term at which it can be made, held not less than ten days after the day, when the first term was appointed to be held. § 1291. If the person against whom the judgment is rendered, is, at the time of filing the judgment-roll, either 1. Within the age of twenty-one years; or 2. Insane; or 3. Imprisoned on a criminal charge, or in execution, upon conviction of a criminal offence, for a term less than for life; The time of such a disability is not a part of the time, limited by the last section; except that the time within which the motion may be heard, caunot be extended more than five years by such a disability nor, in any case, more than one year after the disability ceases. § 1292. Where a judgment is set aside for any cause, upon motion, the court may direct and enforce restitution, in like manner, with like effect, and subject to the same conditions, as where a judgment is reversed upon appeal. TITLE CHAPTER XII. APPEALS. I. GENERAL PROVISIONS, RELATING TO THE APPEALS PROVIDED FOR IN THIS CHAPTER. TITLE II-APPEAL TO THE COURT OF APPEALS. TITLE III-APPEAL TO THE SUPREME COURT FROM AN INFERIOR COURT. TITLE IV.-APPEAL TO THE GENERAL TERM OF THE SUPREME COURT, OR OF A SUPERIOR CITY COURT. TITLE V.-APPEAL FROM A FINAL DETERMINATION IN A SPECIAL PROCEED ING. TITLE I. General provisions, relating to the appeals provided for in this chapter. 1293. Writs of error abolished. 1296. When a person entitled to be- 1298. Proceedings, when party dies 1299. Order of substitution. 1303. Defects in proceedings may be 1304. Order appealed from must be 1305 Security may be waived. not to be brought. § 1310. When appeal stays proceedings; 1311. Levy upon personal property. 1315. Papers to be transmitted to ap 1316. Interiocutory judgment, or in 1317. Judgment or order on appeal. 1320. Id.; as to order. ment. 1322. Id.; when reversal, etc., was by § 1293. The writ of error in a civil action or special proceeding has been abolished. 1294. A party aggrieved may appeal, in a case prescribed in this chapter, except where the judgment or order, of which he complains, was rendered or made upon his default. § 1295. The party or person appealing is designated as the appellant, and the adverse party as the respondent. After an appeal is taken to an other court, the name of the appellate court must be substituted, for that of the court below, in the title of the action or special proceeding, and in any case, the name of the county, if it is mentioned, may be omitted; otherwise the title shall not be changed, in consequence of the appeal. § 1296. A person aggrieved, who is not a party, but is entitled by law to be substituted, in place of a party; or who has acquired, since the mak ing of the order, or the rendering of the judgment appealed from, an interest, which would have entitled him to be so substituted, if it had been previously acquired, may also appeal, as prescribed in this chapter, for an appeal by a party. But the appeal cannot be heard until he has been substituted in place of the party; and if he unreasonably neglects to procure an order of substitution, the appeal may be dismissed, upon motion of the respondent. 1297. Where the adverse party has died, since the making of the order, or the rendering of the judgment appealed from, or where the judg ment appealed from was rendered, after his death, in a case prescribed by law, an appeal may be taken, as if he was living; but it cannot be heard, until the heir, devisee, executor, or administrator, as the case requires, has been substituted as the respondent. In such a case, an undertaking required to perfect the appeal, or to stay the execution of the judgment or order appealed from, must recite the fact of the adverse party's death; and the undertaking enures, after substitution, to the benefit of the person substituted. § 1298. [am'd 1877.] Where either party to an appeal dies, before the appeal is heard, or has heretofore died, and the appeal has not been heard, if an order, substituting another person in his place, is not made, within three months after his death, or, where he has heretofore died, within three months after this section takes effect, the court, in which the appeal is pending, may, in its discretion, make an order, requiring all persons interested in the decedent's estate, to show cause before it, why the judgment or order appealed from should not be reversed or affirmed, or the appeal dismissed, as the case requires. The order must specify a day, when cause is to be shown, which must be not less than six months after making the order; and it must designate the mode of giving notice to the persons interested. Upon the return day of the order, or at a subsequent day, appointed by the court, if the proper person has not been substituted, the court, upon proof, by affidavit, that notice has been given, as required by the order, may reverse or affirm the judgment or order appealed from or dismiss the appeal, or make such further order in the premises, as justice requires. § 1299. Where the appeal is from one court to another, an application for au order of substitution, as prescribed by the last three sections, must be made to the appellate court. Where personal service of notice of application for an order has been made, within the State, upon the proper representatives of the decedent, an order of substitution may be made, upon the application of the surviving party. §1300. An appeal must be taken, by serving, upon the attorney for the adverse party, as prescribed in article third of title sixth of chapter eighth of this act, and upon the clerk, with whom the judgment or order appealed from is entered, by filing it in his office, a written notice, to the effect, that the appellant appeals from the judgment or order, or from a specified part thereof. $1301. Where the appeal is from a final judgment or from a final order in a special proceeding, and the appellant intends to bring up, for review thereupon, an interlocutory judgment, or an intermediate order, he must, in the notice of appeal, distinctly specify the interlocutory judgment, or intermediate order, to be reviewed. § 1302. If the attorney for the adverse party is dead; or if he has been removed, and notice of the removal has been served upon the appellant's attorney, and another attorney has not been substituted in his place; or if, for any reason, service of a notice of appeal, upon the proper attorney for the adverse party, cannot, with due diligence, be made within the State, the notice of appeal may be served upon the respondent, in the manner prescribed by law for serving it upon an attorney. If personal service upon the respondent cannot, with due diligence, be so made within the State, the notice of appeal may be served upon him, and notice of the subsequent proceedings may be given to him, as directed by a judge of the court, in or to which the appeal is taken. 1303. Where the appellant, seasonably and in good faith, serves the notice of appeal, either upon the clerk or upon the adverse party, or his attorney, but omits, through mistake, inadvertance, or excusable neglect, to serve it upon the other, or to do any other act, necessary to perfect the appeal, or to stay the execution of the judgment or order appealed from; the court, in or to which the appeal is taken, upon proof, by affi davit, of the facts, may, in its discretion, permit the omission to be sup plied, or an amendment to be made, upon such terms as justice requires. § 1304. An appeal cannot be taken from an order made by a judge out of court, until it is entered in the office of the proper clerk. Where such an order has not been so entered, or the papers, upon which it was founded, have not been filed in the same clerk's office, the judge who made it, or, if he is absent, or unable or disqualified to act, a judge of the court, in or to which an appeal there from may be taken, must, upon the application of a party or other persons, entitled to take such an appeal, make an order, requiring the omission to be supplied, within a specified time after service of a copy of the order made by him. Upon proof, by affidavit, that a copy of the latter order has been served, and that the omission has not been sup plied, the same judge may make, upon notice, an order revoking and annulling the original order. The provisions of the last section but one apply to the service of an order, or a notice, as prescribed in this section. § 1305. An undertaking, which the appellant is required, by this chapter, to give, or any other act which he is so required to do, for the security of the respondent, may be waived by the written consent of the respondent. § 1306. Where the appellant is required, by this chapter, to give an undertaking, he may, in lieu thereof, deposit with the clerk, with whom the judgment or order appealed from is entered, a sum of money, equal to the amount, for which the undertaking is required to be given. The deposit has the same effect, as filing the undertaking; and notice that it has been made, has the same effect, as notice of the filing and service of a copy of the undertaking. The court, wherein the appeal is pending, may direct the mode, in which the money shall be kept and disposed of, during the pendency, or after the extermination of the appeal. § 1307. An undertaking, given as prescribed in this chapter, must be filed with the clerk, with whom the judgment or order appealed from is entered. § 1308. The court, in which the appeal is pending, upon satisfactory proof, by affidavit, that since the execution of an undertaking, given as prescribed in this chapter, one or more of the sureties therein have become insolvent; or that his or their circumstances have become so precarious, the [that] there is reason to apprehend, that the undertaking is not sufficient for the security of the respondent; may make an order, requiring the appel lant to file a new undertaking, and to serve a copy thereof, as required with respect to the original undertaking. If the appellant fails so to do, within twenty days after the service of a copy of the order, or such further time as the court allows, the appeal must be dismissed, or the order or judgment, from which the appeal is taken, must be executed, as if the original undertaking had not been given. § 1309. An action shall not be maintained, upon an undertaking, given upon an appeal, taken as prescribed in title third, fourth or fifth of this chapter, until ten days have expired, since the service, upon the attorney for the appellant, of a written notice of the entry of judgment or order, affirming the judgment or order appealed from, or dismissing the appeal. Where an appeal to the court of appeals, from that judgment or order, is perfected, and security is given thereupon, to stay the execution of the judgment or order appealed from, an action shall not be maintained upon the undertaking, giving upon the preceding appeal, until after the final determination of the appeal to the court of appeals. §1310. Where an appeal has been perfected, as prescribed in this chapter, and the other acts, if any, required to be done, to stay the execu tion of the judgment or order appealed from, have been done, the appeal stays all proceedings to enforce the judgment or order appealed from; except that the court or judge, from whose determination the appeal is taken, may proceed in any matter, included in the action or special proceeding, and not affected by the judgment or order appealed from, or not embraced within the appeal; or may cause perishable property to be sold, pursuant to the judgment or order appealed from. The proceeds of such a sale must be paid, to abide the result of the appeal, into the court, from or in which the appeal is taken; or, if it was taken as prescribed in title fifth of this chapter, into the supreme court. $1311. Vhere an appeal, taken, from a final judgment, to the court of appeals, has been perfected, and the security, required to stay the execution of the judgment, has been given; or where the security, given upon an appeal, taken from a final judgment of the supreme court, a superior city court, a county court, or the marine court of the city of New York, is equal to that required to perfect an appeal to the court of appeals, and to stay the execution of the judgment; the court, in which the judgment appealed from was rendered, may, in its discretion, and upon such terms as justice requires, mate an order, upon notice to the respondent, and the sureties in the undertaling, discharging a levy upon personal property, made by virtue of an execa ion, issued upon the judgment appealed from. But this section does not a horize the discharge of a levy, made by virtue of a warrant of Attachment 1312 Where an appeal is taken, as prescribed in title second or fourth of this cly pter, the court, in or from which the appeal is taken; or, where appeal is taken as prescribed in title third or fifth of this chapter, the etur, to which the appeal is taken; may, in its discretion, make an order, on notice to the respondent, dispensing with or limiting the security, required to stay the execution of the judgment or order appealed from, as follows: 1. Where the appellant is an executor, administrator, trustee, or other person acting in another's right, the security may be dispensed with or limited in the discretion of the court. 2. The aggregate sum, in which one or more undertakings are required to be given, may be limited to not less than fifty thousand dollars, where it would otherwise exceed that sum. |