APPEAL.

A stay of proceedings should not be vacated pending appeal when such an appeal presents reasona ble questions for review. (Matter of Case agt. Campbell, ante, 85.)

The court of appeals will entertain a motion to dismiss an appeal for which there is no foundation, without waiting until the case is reached in its regular order on the calendar. (Stoughton agt. Lewis, ante, 331.)

A plaintiff is not precluded from making a motion to dismiss an appeal taken by a defendant, because he (the plaintiff) has noticed the case for argument and placed it upon the calendar. He waives nothing by so doing. It is still optional with him to wait until the case is reached on the calendar, or to make his motion to dismiss on the ground that the appeal is unauthorized. (Id.)

Where, in an action to foreclose a mortgage, a complaint containing all the requisite allegations has been served upon defendant, who afterwards obtained a stipulation from plaintiff's attorney for further time to answer, agieeing not to put in any answer and not to ask any further extension of time On the last day defendant served a demurrer which was, on motion, overruled and stricken out, and plaintiff proceeded as if no demurrer or answer had been interposed and obtained his judgment by default. The defendant appealed to the general term, where it was affirmed, and from the affirmance defendant appeals to this court:

Held, that, the demurrer having been overruled, the judgment went by default in the same manner as if no demurrer had been served, and no appeal is allowed from a judgment entered by default. The order overruling the demurrer not having been ap

pealed from cannot be assailed on an appeal merely from the judgment. (Id.)

5. Review of a trial before a judge or referee unless the case shows that it contains all the evidence bearing on a disputed finding of fact, the court will assume that there was evidence sufficient to sustain the finding under the new Code no exception lies to a finding of fact, unless it be wholly unsupported by evidence - nor does any exception lie to a refusal to find a fact as requested. (See Porter agt. Smith, 35 Hun, 118.)

6. Additional allowance when the general term will not reverse an order resting in the discretion of the court below the amount involved may be considered in passing upon the application. (See Gooding agt. Brown, 35 Hun, 153.)

7. Trial by the court-findings of fact and conclusions of law must be made and signed a trial of a contested question of fact by the court cannot be reviewed unless such a decision be made. (See Benjamin agt. Allen, 35 Hun, 115.)

8. When an order granting or refusing a new trial in an equity case is appealable when an error will be disregarded - when the judgment will be reversed. (See Bowen agt. Becht, 35 Hun, 434.)

9. Will the correctness of the adjudication admitting it to probate is only reviewable on appeal. (See Wells agt. Stearns, 35 Hun, 323.)

10. When a new trial may be had in a county court on appeal from a justice's judgment - Code Civil Procedure, section 3068. (See Reynolds agt. Swick, 35 Hun, 278.)

11. Not the remedy for an irregular entry of judgment. (See Robinson agt Hall, 35 Hun, 214.)

12. Effect of an order directing

that_a_judgment be marked suspended upon appeal. (See Judg. ment.)

13. Upon the application of the water commissioners of Amsterdam to acquire title to land, an order was made at a special term allowing them to amend their petition. By an independent provision contained in the order ten dollars costs of the motion were awarded to the respondents, landowners, who had resisted the application, not as a condition to the granting of the motion, but absolutely. The landowners having accepted the ten dollars costs which were tendered to them, appealed from the order: Held, that under the circumstances of this case the landowners did not, by accepting the costs, waive their right to appeal. (Matter of Water Commissioners of Amsterdam, 36 Hun, 534.)

14. The doctrine of waiver only applies in those cases where the appellant has attempted to enforce the order in his favor, or some part thereof connected with or dependent upon such other part as he seeks to avoid by his appeal, or in which he has accepted a benefit having such connection or dependency. (Id.)

15. An order of a county court, denying a motion for a new trial upon the ground of surprise and newly discovered evidence, is addressed to the discretion of that court, and is not reviewable upon appeal by the general term of the supreme court. (Myers agt. Riley, 36 Hun, 20.)

16. The supreme court has no power to review the exercise by the county court of a discretionary power vested in the latter court. (Id.)

17. Where upon an appeal from a judgment, entered upon the verdict of a jury, and from an order

least in the absence of evidence that the city had used, or in some way interfered with the money, such payment and receipt did not deprive the city of its right to appeal from the order. (In re N. Y. and H. R. R. Co., 98 N. Y., 12.)

24. It seems that under said act (sec. 18) a landowner does not waive his right to appeal from an order confirming an award by receiving the sum awarded: the effect of the payment or deposit, as directed by the order of the sum awarded, is to divest the landowner of all interest in the land as well as the use thereof during the existence of the railroad corporation, but it does not deprive either party of the right to appeal. (Id.)

25. An order of general term revers ing an order which confirmed an award and directing a new ap praisal is not reviewable here. (Id.)

26. Where upon trial exceptions are, without objection, ordered to be heard at first instance at general term, the party succeeding at general term may not object to a review of its decision here, on the ground that the case was not one proper to be so heard. (Wyckoff agt. DeGraaf, 98 N. Y., 134.)

27. In an action for partition, O., the

holder of a mortgage on the premises, was made a party defendant; the lien of his mortgage being questioned, he answered, alleging it to be a valid and subsisting lien, and asked that the premises be declared subject thereto, or that it be paid out of the proceeds of sale if a sale is decreed. 0. appeared and took part in the trial An interlocutory judgment was rendered, adjudging that the mortgage was not a valid lien: Held, that as O. had, without objection, thus submitted his rights to the court, and sought to have them enforced, conceding he could not have been compelled thus to liti.

gate them (as to which quære), he could not raise the objection on appeal; and this, although he asked the trial court to find as a conclusion of law that no affirmative relief could be given against him in that form of action. (Barnard agt. Onderdonk, 98 N. Y., 158.)

28. This court, on appeal in criminal actions, may not consider objections to portions of the charge as to which no exceptions were taken on the trial. (People agt. Mills, 98 N. Y., 176.)

29. The surrogate refused probate of a will contested on the ground of undue influence; he found all the facts in favor of the proponent, save as to undue influence; there was no evidence to establish this: Held, that it was proper for the general term, on appeal from the surrogate's decision, to direct judgment admitting the will to probate. (In re Martin, 98 N. Y., 193.)

30. The reversal of the surrogate's decree in such case is upon a question of law, and so the provision of the Code of Civil Procedure (sec. 2588), requiring where the reversal is upon a question of fact, that a jury trial shall be ordered, does not apply. (Id.)

31. Also held, that the case required an exercise of the power conferred by the Code (sec. 2589), to impose costs upon the unsuccessful party. (Id.)

32. The validity of an undertaking given under the Code of Procedure (sec. 348), for the purpose of staying proceedings on appeal to the general term of the supreme court, depends upon its efficacy in securing to the appellant the stay desired; where the obligee elects to treat it as invalid, and is permitted by the court to proceed and collect his judgment in disregard thereof, he cannot afterward main

tain an action and hold the obligors liable thereon. (Hemmingway agt. Poucher, 98 N. Y., 281.)

33. It is within the power and discretion of a referee, on trial of an action, to allow an amendment of the complaint, which does not affect the issue upon determination of which plaintiff's right to relief depends, or which does not bring in a new cause of action; and his decision thereon is not reviewable here. (Price agt. Brown, 98 N. Y., 388.)

34. Where improper evidence has been received under objection and exception, which subsequently, on motion of the party against whom it was offered, is stricken out, this is to be deemed an abandonment of the exception, and such party may not have the benefit of it on appeal. (Id.)

35. The act of 1881 (chap. 486, Laus of 1881), to facilitate the giving of bonds required by law," does not repeal or affect the provision of the Code of Civil Procedure (sec. 1334), requiring two sureties to an undertaking on an appeal to this court. (Nichols agt. MacLean. 98 N. Y., 458.)

36. The appellant himself may not sign as surety. (Id.)

37. It is not a ground for dismissal of appeal that the appellant has failed to notice the case for argument and place it on the calendar; he is bound only to file the return and serve the printed cases; if the respondent wishes to expedite it, he may notice. (Id.)

38. The practice of referring in an answer to parts of the complaint which the pleader intends to admit or deny, as "at" or "between" certain folios, does not conform to the spirit of the provision of the Code of Civil Procedure (sec. 22), which requires pleadings to be made out in words at length and

not abbreviated," and serves no useful purpose on appeal where original folios do not appear in the case. (Caulkins agt. Bolton, 98 N. Y., 511.)

39. The general term of the court of common pleas of the city of New York, on appeal to it from a judgment of the general term of the city court (late marine court), affirmed the judgment and granted leave to the appellant to appeal to this court from the judgment to be entered on its decision An order of affirmance was entered in the court of common pleas, and thereafter, a judgment was entered in the city court, which recited that a remittitur had been sent down from the court of common pleas, | and made the judgment of that court the judgment of the city court. The appellant served a notice of appeal from the judg ment entered in the office of the clerk of the city court," without referring to the judgment or order of the common pleas: Held, that the appeal was improperly taken; that no appeal lies to this court from a judgment of the city court. (Ansonia B and C. Co. agt. Conner, 98 N. Y., 574.)

40. The appeal should have been from the determination of the court of common pleas. (Id.)

41. Where a judgment is affirmed in this court without an opinion, and without formally adopting the opinion below, it is not to be understood that the affirmance is upon grounds substantially dif ferent from those taken below; on the contrary, the inference is the other way, as in case of such a difference the court would deem it proper to state the reason for affirmance. (Higgins agt. Crichton, 98 N. Y., 626.)

42. In an action upon a promissory note the answer was a general denial. Plaintiff gave evidence on the trial sufficient to establish

prima facie the execution of the note by the alleged maker. Defendant gave in evidence certain letters written by plaintiff to the maker, and at the close of the case asked the court "to direct a verdict for defendant in view of those letters." The request was denied. Upon appeal defendant sought to sustain his exception to the ruling on the ground that the letters "showed the note to be without consideration:" Held, that defendant, to avail himself of this point, should have called the attention of the trial court to it, and, having failed to do so, could not raise it on appeal._ (Langley agt. Wadsworth, 99 N. Y., 61.)

43. So far as the cross-examination of a witness relates to facts in issue, or relevant facts, it may be pursued by counsel as matter of right but when the object is to test the accuracy or credibility of the witness, its method and duration are subject to the discretion of the court, and the exercise of this discretion unless it is abused, is not the subject of review. (Id.)

44. Where the decree of a surrogate settling the accounts of an executor is, on appeal to the general term, reversed, so far as it charges the executor with certain items, on the ground that he is not properly chargeable therewith, and the decree is remitted to the surrogate for resettlement in accordance with the decision of the general term, its judgment is final so far as relates to any judicial action, and so is appealable to this court. (Stimson agt. Vroman, 99 N. Y., 74.)

45. It seems that where the findings

of a trial court are apparently inconsistent, it is the duty of the appellate court, if possible, to reconcile them and give effect to the real meaning and intent of the court in making them. (Health Department agt. Purdon, 99 N. Y.. 237.)