Broeck v. Hudson River Rail Road

7 How. Pr. 137

• Court: New York Supreme Court
• Decided: September 15, 1852
• Status: Published

Opinion

By the Court, Harris, Justice.

The mode of making an appeal is prescribed by the 327th section of the Code. This section is found in that part of the Code which relates to “ appeals in general,” and is applicable to all appeals, in all courts. The 334th section relates exclusively to appeals to the Court of Appeals. It is found in the second chapter of the title relating to that class of appeals. The first section in that chapter specifies the cases in which an appeal may he taken. The next section, which is the 334th, declares that before the appeal shall be effectual for any purpose, security for costs shall be given in the manner prescribed. The provisions of this section, as well as the succeeding. sections in the same chapter, relate exclusively to the subject of the chapter, which is, “ appeals to the Court of Appeals.” They have no application to appeals brought under the three succeeding chapters of the title relating to other appeals. Each of these chapters contains its own provisions in relation to proceedings upon the appeals it authorizes to be brought.

When the appeal is from the decision of a single judge to the general term, no security whatever is required, but if the party appealing would have a stay of proceedings, he must obtain an order for that purpose, or give the security prescribed by the 348th section. The proceedings upon the appeal are, therefore, regular, and the motion must be denied; but as the question is new, it should be without costs.