TITLE 8. Service of notice upon respondent.

Amendment when alowed.

Undertak

ing to stay execution

ment.

§ 3048. Service of the notice of appeal upon the respondent may be made, by delivering it, in any part of the State, to the res pondent personally, or in one of the following methods:

1. If the respondent is a resident of the county, by leaving it at his residence, with a person of suitable age and discretion. If he is not a resident of the county, and the person who appeared as his attorney upon the trial is a resident thereof, it may be served upon the attorney, either personally, or by leaving it at his residence, with a person of suitable age and discretion.

2. If service within the county cannot be made, with due diligence, upon the respondent personally, or in the method prescribed in the foregoing subdivision, the notice of appeal may be served upon him, by delivering it to the clerk of the appellate court.

[Co. Proc., § 354, the remainder of the first sentence, remodelled so as to express more clearly its supposed meaning, which, in some respects, was far from being clear. See Lake v. Kels, 11 Abb., N. S., 37.]

§ 3049. Where the appellant, seasonably and in good faith, serves the notice of appeal, upon either the justice or the respondent, but omits, through mistake, inadvertence, or excusable neglect, to serve it upon the other, or to do any other act necessary to perfect the appeal, the appellate court, upon proof by affidavit of the facts, may, in its discretion, permit the omission to be supplied, or an amendment to be made, upon such terms as justice requires.

[Co. Proc., § 327, last sentence, amended so as to conform to § 1303 of this act, which contains the corresponding regulation as to courts of record, and by omitting the provision as to stay of proceedings. It was held, that the failure to file the undertaking within the 20 days, was a defect which could not be amended, because § 1303 does not apply to justices' courts. Scarborough v. Dady, reported in 19 A. L J., 164; so of service of the notice of appeal on the adverse party; Roberts v. Davids, 12 Hun, 394; so of the payment of the costs and justice's fee; Thomas v. Thomas, 18 Hun, 481; Eldridge v. Underhill, 17 Hun, 241. All these decisions go upon the ground that § 1303 of this act is not applicable to justices' courts, and they are of course, abrogated by this section.]

§ 3050. If the appellant desires a stay of execution, he must give upon judg- a written undertaking, executed by one or more sureties, approved by the justice who rendered the judgment, or by a judge of the appellate court, to the effect that, if the appeal is dismissed, or if

judgment is rendered against the appellant in the appellate court, and an execution issued thereupon is returned wholly or partly unsatisfied, the sureties will pay the amount of 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 sum 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 1335 of this act applies to such an undertaking.(a)

[Co. Proc., § 355, last clause, and § 356, amended by inserting the words, "if the appeal is dismissed"; and by adding all after the words, "remaining unsatisfied." The latter amendment supplies a casus omissus in the former statute, which made no provision for the undertaking upon appeal from a judgment in an action to recover a chattel. The judgment against the appellant, referred to in this undertaking, is the final judgment in the cause, and the sureties remain liable until that is rendered. Humerton v. Hay, 65 N. Y., 380.]

ART. 1.

ings; how

§ 3051. The delivery of the undertaking to the justice or to Proceedhis clerk, appointed pursuant to law, and service of a copy thereof, stayed. 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.

[Co. Proc., § 357, amended by allowing service on the clerk of the justice appoin 'ed pursuant to law; and by inserting the words, "or accompanied with an affidavit showing that it is a copy, and that the original has been duly filed."]

justice is

§ 3052. Where the justice is dead, or cannot, with due diligence, Id.; when be found within the county, and he has no clerk, appointed pursuant dead, etc. 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 3048 of this act, for service of

83

TITLE 8.

Return.

Id.: when

justice has

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 was certified, as prescribed in the last section.

[Co. Proc., § 358, amended by the addition of the last sentence, to supply a casus omissus in the former statute.]

§ 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 3047 of this act, make a return to the appellate 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 the 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.

[Co. Proc., § 360, reconstructed, but unchanged in substance; except by requiring the undertaking, if any, to be returned, and also each warrant of attachment, etc.; by omitting the provision relating to compelling a return by attachment, which is taken into § 3055, post; by amending the section so as to conform it to § 3068, post; and by adding the last clause commencing "unless he is required," etc.; which was suggested by the case of Balja v. Rowley, 37 How. Pr., 120.]

§ 3054. Where the justice has gone out of office, he must, nevergone out theless, make a return in the same manner, and his return has the same effect, as if he remained in office.

of office.

[Co. Proc., § 361.]

ART. 1.

return;

pelled.

§ 3055. If the return is defective, the appellate court may direct Further the justice to make a further or amended return, as often as is neces- how comsary. 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.

[Co. Proc., § 362, the second sentence of § 360; and the last sentence of 363. Where the county court has not jurisdiction of the appeal by reason of relationship, etc., notice of a motion to amend the return must be given, in 20 days after the county judge's certificate. Rule 48.]

justice is

dead, etc.

§ 3056. If the justice dies, becomes a lunatic, absconds, removes Id.: when 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.

[The remainder of Co. Proc., § 363, amended by substituting "becomes a lunatic," for "become insane"; by inserting the word, "absconds," and the clause, "or otherwise becomes unable to make the return"; and by allowing affidavits to be received.]

ings when

error in

fact is alleged.

§ 3057. Where an appeal is founded upon an error in fact in the Proceedproceedings, not affecting the merits of the action, and not within the knowledge of the justice, the court may determine the matter upon affidavits; or, in its discretion, upon the examination of witnesses; or in both methods.

[Co. Proc., § 366, third sentence, amended by adding the last clause. ]

tion upon reversal.

§ 3058. Where the judgment of the justice is reversed or modi- Restitufied, the appellate court may make or compel restitution of property or of a right, lost by means of the erroneous 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 purchase-price 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

TITLE 8.

Return.

Id. when justice has

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 was certified, as prescribed in the last section.

[Co. Proc., § 358, amended by the addition of the last sentence, to supply a casus omissus in the former statute.]

§ 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 3047 of this act, make a return to the appellate 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 the 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.

[Co. Proc., § 360, reconstructed, but unchanged in substance; except by requiring the undertaking, if any, to be returned, and also each warrant of attachment, etc.; by omitting the provision relating to compelling a return by attachment, which is taken into § 3055, post; by amending the section so as to conform it to § 3068, post; and by adding the last clause commencing "unless he is required," etc.; which was suggested by the case of Balja v. Rowley, 37 How. Pr., 120.]

§ 3054. Where the justice has gone out of office, he must, nevergone out theless, make a return in the same manner, and his return has the same effect, as if he remained in office.

of office.

[Co. Proc., § 361.]