Sidebilder
PDF
ePub

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.

2 R. S. 371, § 2, amended by restricting the provision to final judgment, by making the period of limitation commence at the time the judgment-roll was filled, and by extending

the time for hearing beyond the year,
in cases where it is seasonably noticed,
but by some casualty is not heard; 3
Wait's Pr. 732.

set aside

for error

§ 1283. A motion to set aside a final judgment, rendered in a Motion to court of record, for error in fact, not arising upon the trial, may be judgment made by the party against whom it is rendered; or, if an execution in fact; has not been issued thereon, and the judgment has not been wholly may be or partly satisfied or enforced, by the party in whose favor it is ren- party. dered.

2 R. S. 613, parts of §§ 2 and 3, consolidated and amended by substituting the introductory words for

"writs of error must be brought by
the party," etc.; 3 Wait's Pr. 733.

when it

made by

a party's

§ 1284. A like motion may be made, after the death of a party Id.; after entitled to make it, as prescribed in the last section, by the follow- death. ing persons:

1. Where the judgment awards a sum of money, or a chattel, or an interest in real property, which is declared by law to be assets, the motion may be made by his executor or administrator.

2. 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, the motion may be made by the heir of the decedent, to whom the real property descended, or might have descended, or by the person to whom he devised it.

3. Where the judgment is rendered against or in favor of two or more persons, the motion may be made, jointly, by the survivor, and the person who would have been entitled to make it, if the judgment had been rendered in favor of or against the decedent only.

2 R. S. § 2, subds. 2 and 3, and § 6, consolidated and amended; 3 Wait's Pr. 733, 734.

person not

§ 1285. A motion may be made, either before or after the death Id.; by a of the defendant, by a person, who is not a party, to set aside, for a party. error in fact, not arising upon the trial, a judgment, rendered in an action against a tenant for life, or for years, awarding real property, or the possession of real property, in which the person making the motion has an estate, or interest, in reversion or remainder.

2 R. S. & 2, subd. 4, remodelled; 3 Wait's Pr. 733, 734.

Id.; when several parties

are entitled

to move.

To whom

notice of the motion must be

given.

Id.; when real prop

erty recov

ered by judg

ment has

been conveyed.

How notice given

§ 1286. Where two or more persons are entitled to move to set aside a judgment, as prescribed in the last three sections, one or more of them may move separately; but, in that case, notice of the motion must be given to those who do not join therein, in like manner as it they were adverse parties.

Substituted for 2 R. S. §§ 7-17; 1 Wait's Pr. 262, 321, 418 and 431; 4 Wait's Pr. 211.

§ 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.

The first sentence is the substance of 2 R. S. 616, § 19, except the last

clause of subd. 3 thereof. The second sentence is new.

§ 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 conveyance.

2 R. S. 616, last clause of subd. 3 of § 19, amended to adapt it to motions and to other provisions of this act.

§ 1289. Notice must be given, in a case specified in this title, by Kider this personal service of a written notice, or of an order to show cause

title.

Within
what

time mo-
tion to
be made.

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.

New; but including the provisions of 2 R. S. 615, § 11.

§ 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 judgment-roll, 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.

New; but the time is that of 2 R. S. 616, § 21.

§ 1291. If the person, against whom the judgment is rendered, Excepis, 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, cannot be extended more than five years by such a disability, nor, in any case, more than one year after the disability

ceases.

Taken from 2 R. S. 617, §§ 22 and 24.

tions in cases of disability.

tion; when

§ 1292. Where a judgment is set aside for any cause, upon Restitumotion, the court may direct and enforce restitution, in like man- directed. ner, with like effect, and subject to the same conditions, as where a judgment is reversed upon appeal.

New in form.

CHAPTER XII.

APPEALS.

TITLE I. GENERAL PROVISIONS, RELATING TO THE APPEALS PRO

VIDED 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 DETERMINATION IN A SPECIAL PRO

CEEDING.

TITLE I.

General provisions, relating to the appeals provided for in this chapter.

SEC. 1293. Writs of error abolished.

1294. When party may appeal.

1295. Parties to appeal; how designated. Title of cause.

1296. When a person entitled to become a party may appeal.

1297. Appeal when adverse party has died.

1298. Proceedings, when party dies pending appeal.

1299. Order of substitution.

1300. Appeal, how taken.

1301. When notice of appeal to specify interlocutory judgment, etc.

1302. Proceedings, if attorney or party not found.

1303. Defects in proceedings may be supplied.

1304. Order appealed from must be entered. Proceedings to compel entry. 1305. Security may be waived.

1306. Deposit, in lieu of undertaking.

1307. Undertaking must be filed.

1308. New undertaking to be given, when sureties are insolvent, etc.

1309. Action upon undertaking, when not to be brought.

1310. When appeal stays proceedings; effect thereof.

1311. Levy upon personal property, when superseded by appeal.

1312. Court may limit amount of security in certain cases.

1313. No security necessary, on appeal by the people, etc. 1314. Id.; on appeal by a domestic municipal corporation. 1315. Papers to be transmitted to appellate court.

1316. Interlocutory judgment, or intermediate order, may be reviewed.

SEC. 1317. Judgment or order on appeal.

1318. When no appeal lies from judgment of reversal.

1319. Mode of enforcing affirmed or modified judgment.

1320. Id.; as to order.

1321. Mode of cancelling docket of reversed or modified judgment.

1322. Id.; when reversal, etc., was by court of appeals.

1323. Restitution; when awarded.

error

§ 1293. The writ of error in a civil action or special proceed- Writs of ing has been abolished.

A substitute for Code Pro., § 323 and § 457, first sentence. See Wait's Code, 643, 799; 4 Wait's Pr. 211, 212. An order quashing a writ of habeas

corpus can only be reviewed upon ap-
peal. A writ of error will not lie in
such case. People v. Conner, 64 N. Y.
(19 Sick.) 481.

abolished.

party may

§ 1294. A party aggrieved may appeal, in a case prescribed in When this chapter, except where the judgment or order, of which he com- appeal. plains, was rendered or made upon his default.

Code Pro., 325, amended by the addition of the last clause; Wait's Code, 646; 4 Wait's Pr. 213, 214. As to waiver of appeal, see 4 Wait's Pr.

215.

It was decided, under Code Pro., that an order of a judgment taken by default is not appealable. Flake v. Van Wagenen, 54 ̃Ñ. Y. (9 Sick.) 25; Innes v. Purcell, 58 N. Y. (13 Sick.) 388.

It seems that, prior to his discharge, a bankrupt has a sufficient interest in preventing the establishment of a claim against him, to sustain an appeal by him from a judgment thereon, where his assignee does not seek to intervene and be substituted. Sandford v. Sandford, 58 N. Y. (13 Sick.) 67. See Garnsey v. Knights, 1 N. Y. Sup. Ct. (T. & C.) 259.

appeal; desig

Title of

§ 1295. The party or person appealing is designated as the Parties to appellant, and the adverse party as the respondent. After an appeal how is taken to another court, the name of the appellate court must be nated. substituted, for that of the court below, in the title of the action or cause. 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.

Code Pro., 326, amended. See Wait's Code, 646; 4 Wait's Pr. 228, 229.

The provision, that the title of the action shall not be changed in consequence of the appeal (see Code Pro., § 326), recognizes the principle that

the action continues, and was intended
to prevent the change in the relative
position of the parties that was form-
erly practiced when reviews of judg-
ments were effected through writs of
error. Willey v. Shaver, 1 N. Y. Sup.
Ct. (T. & C.) 324, 328.

person

become a

party may

§ 1296. A person aggrieved, who is not a party, but is entitled when by law to be substituted, in place of a party; or who has acquired, entitled to since the making 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

appeal.

« ForrigeFortsett »