Except when the judgment or order or final order
was rendered or made upon his default, a party aggrieved may appeal
to the County Court of the County of Albany or to the Appellate Division
of the Supreme Court, third department, as hereinafter required, from:
A.
A judgment in an action.
B.
A final order in a summary proceeding.
C.
An order granting or denying a new trial.
D.
An order granting or denying a motion to open a default
and to vacate a judgment entered thereon.
E.
An order granting or denying a motion to open a default
and to vacate a judgment entered thereon upon the ground that the
judgment was rendered or the final order made without service of summons
or process.
F.
An order granting or denying a motion to discharge
a defendant from arrest, or an order granting or denying a motion
to vacate or modify a warrant of attachment or a requisition to replevy
or a warrant of seizure.
G.
Any other order, provided that leave to appeal be
granted either by a Justice of the City Court of Albany or by a Judge
of the Appellate Court, upon motion, returnable within eight (8) days
after the making of said order.
H.
All appeals taken pursuant to this section shall be
to the County Court of the County of Albany, except that when the
judgment recovered is in excess of one thousand dollars ($1,000.),
exclusive of interest and costs, or when the order or final order
appealed from was entered in an action involving an amount in excess
of one thousand dollars ($1,000.), exclusive of interest and costs,
the appeal shall be taken to the Appellate Division of the Supreme
Court, third department, and the same shall be heard and determined
in the same manner as though the judgment, order or final order appealed
from had been granted by the County Court of Albany County, and the
rules and provisions of law appertaining to appeals from judgments
or orders from said County Court shall be applicable to such appeals
after the filing of the return on appeal as hereinafter provided.
An appeal must be taken within thirty (30) days
after the entry of the judgment, order or final order in the docket,
except that where a defendant appeals from a judgment rendered in
an action wherein he did not appear and the summons was not personally
served upon him, the appeal may be taken within twenty (20) days after
personal service upon him on the part of the plaintiff of written
notice of the entry of the judgment. An appeal is taken by serving
upon the Clerk of the Court, and upon the respondent, a written notice
of appeal, subscribed either by the appellant or by his attorney in
the Appellate Court, and paying at the same time the costs and disbursements
of the action or proceeding to such Clerk who shall hold the same
to abide the final determination of the action or proceeding and the
further order of this Court. In addition to the sums to be paid by
him as aforesaid, the appellant must, at the time of filing his notice
of appeal, deposit with the Clerk the sum of ten dollars ($10.) to
be applied on account of the fees for the stenographer's original
transcript of minutes, and, in the event that the cost thereof exceeds
said sum, the appellant, before return is made on such appeal, must
pay the additional cost thereof, and, in the event that said deposit
is in excess of the cost of said minutes, the Clerk shall refund the
surplus to the appellant. The City of Albany or any board, department
or official thereof appearing by the Corporation Counsel shall not
be obliged to pay such costs and disbursements until the final determination
of the action or proceeding. The service and filing of a notice of
appeal by the City of Albany with the Clerk of the Court as aforesaid
shall operate as a stay of execution. When the appeal is taken to
the Appellate Division, unless the same shall have been previously
filed, the appellant or his attorney, on or before the expiration
of the time provided for the return on appeal, shall file in the office
of the County Clerk of Albany County a transcript of the judgment
or a certified copy of the order or the final order appealed from,
and a notice of such filing shall be given to the Clerk of this Court
and to the respondent or his attorney.
Service of the notice of appeal upon the respondent
may be made, by delivering it in any part of the state, to the respondent
personally, in one (1) of the following methods:
A.
Where he has appeared by an attorney by serving the
same upon such attorney; in case the respondent appears in person
without an attorney, by leaving it at his residence with a person
of suitable age and discretion.
B.
If service within the City of Albany or any town adjoining
thereto cannot be made, with due diligence, upon the respondent personally,
or in the method prescribed in the foregoing subsection, the notice
of appeal may be served upon him, by delivering it to the Clerk of
the Court addressed to the respondent.
Where the appellant, reasonably and in good
faith, serves the notice of appeal upon either the Clerk or the respondent
or his attorney, 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.
If the appellant desires a stay of execution,
he must give a written undertaking 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
the judgment, or the portion thereof remaining unsatisfied, not exceeding
a sum specified in the undertaking, which must be at least one hundred
dollars ($100.), and not less than twice the amount of the judgment,
or if the judgment of the Court is for the recovery of a chattel,
that the sureties will pay the sum fixed by the judgment as the value
of the chattel, together with the damages, if any, awarded for the
taking, withholding or detention thereof.
The delivery of the undertaking to the Clerk
of the Court and service of a copy thereof, and of notice of filing
thereof, stays the issuing of an execution upon the judgment. If the
execution has been issued, the service of a copy of the undertaking,
certified by 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,
subject to the provisions of the next preceding section.
The Clerk of the Court must, within thirty (30) days from the service of the notice of appeal and the payment of the cost and fees as prescribed in § 30-271, make and file a return with the County Clerk of Albany County, which shall consist of all process, pleadings and papers filed and the judgment, order or final order appealed from, together with the evidence, exhibits or copies thereof, and all proceedings had and taken, and the notice of the filing required by § 30-271. The exhibits or copies thereof shall be delivered to the Clerk of this Court by the parties who introduced the same in evidence or for identification upon the trial within twenty (20) days after the appeal is taken. The stenographer's minutes of the evidence must be furnished to the Clerk, by the stenographer, within twenty (20) days after demand therefor has been made. Such return must have indorsed thereon the allowance of the Justice before whom the action or proceeding was tried. The printed record on an appeal to the Appellate Division shall be certified by the Clerk of the County of Albany from the return herein directed to be filed with him by the Clerk of this Court. All motions to correct or perfect said return on appeal or the printed record thereof shall be heard by the Appellate Division.
Immediately upon receiving the minutes from
the stenographer as provided in the next preceding section, the Clerk
of the Court shall cause notice of that fact to be sent to the attorney
for the appellant, or to the appellant if he has not appeared by attorney.
The appellant or his attorney shall then procure the case to be settled
on a written notice of at least three (3) days, served in the manner
provided for the serving of a notice of appeal, and made returnable
before the Justice who tried the case. Said Justice shall thereupon
within five (5) days settle the case or exceptions upon it, if there
by any, and indorse the return, as provided in the next preceding
section. After a Justice is out of office he may settle the case or
exceptions or make any return of proceedings had before him while
he was in office, and may be compelled so to do by the Appellate Court.
If the appellant or his attorney does not move for the settlement
of the case as herein provided within ten (10) days after the Clerk
has given notice of the receipt of the stenographer's minutes, then
the respondent or his attorney may procure the settlement of said
case in like manner as the appellant or his attorney could, as herein
provided.
If the Justice dies, becomes a lunatic, absconds,
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 Clerk.
When the adverse party has died since the making
of the order, or the rendering of the judgment appealed from, or where
the judgment 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, devises, executor or administrator,
as the case requires, has been substituted as the respondent or appellant.
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 inures,
after substitution, to the benefit of the person substituted.
Where either party to an appeal dies before
the appeal is heard, if an order substituting another person in his
place is not made within three (3) months after his death, 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
not be less than six (6) 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 the case requires.
Where personal service of notice of application
for an order has been made, within the City, or in any town adjoining
thereto, upon the proper representative of the decedent, an order
of substitution may be made, upon the application of the surviving
party.
Where the judgment or final order is reversed
or modified, the Appellate Court may make or compel restitution of
property or of a right lost by means of the erroneous judgment or
order, 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 (6) 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.
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.
Within twenty (20) days after the service of
a notice of appeal on the respondent, he may serve upon the appellant
or his attorney a written stipulation that the judgment appealed from
may be reversed with five dollars ($5.) for 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
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 (8) days. If 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.
In a case specified in this Part 2, the appeal
must be heard upon the original papers, or a certified copy thereof,
and a copy or copies thereof need not be furnished for the use of
the Court. The Appellate Court must render judgment according to the
justice of the case, without regard to technical errors or defects
which do not affect the merits. It may affirm, modify or reverse the
judgment, order or final order of the City Court, in whole or in part,
and as to any or all of the parties, and for errors of law or of fact,
and where the judgment is contrary to or against the weight of evidence,
the Appellate Court may, upon its reversal of a judgment or final
order, direct a new trial as prescribed in this Part 2.
Upon the rendering of judgment of the Appellate
Court affirming, modifying or reversing a judgment, order or final
order of the City Court, a certified copy of such judgment shall be
filed with the Clerk of the City Court.
When a new trial is granted or ordered by the
Appellate Division, the same shall be had before the City Court, and
the return filed with the Clerk of the County of Albany shall be transmitted
by him to the Clerk of the City Court.
