Provisions of Code Parties, how designated; title of cause (Code Civ. Pro.) § 1295. The party or person appealing is designated as the appellant, and the adverse party as the respondent. After an appeal is taken to another court, the name of the appellate court must be substituted, for that of the court below, in the title of the action or 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. Appeal, how taken (Code Civ. Pro.) § 1300. An appeal must be taken, by serving, upon the attorney for the adverse party, as prescribed in article third of title sixth of chapter eighth of this act, and upon the clerk, with whom the judgment or order appealed from is entered, by filing it* in his office, a written notice, to the effect, that the appellant appeals from the judgment or order, or from a specified part thereof. Upon an appeal to the Court of Appeals from an order of the Appellate Division, made upon an appeal from the surrogates' court, the notice of appeal shall be filed with the clerk of the surrogates' court. (As amended by L. 1909, ch. 416.) § 1301. Where the appeal is from a final judgment, or from a final order in a special proceeding, and the appellant intends to bring up, for review thereupon, an interlocutory judgment, or an intermediate order, he must, in the notice of appeal, distinctly specify the interlocutory judgment, or intermediate order, to be reviewed. Security to perfect appeal § 1326. To render a notice of appeal, to the Court of Appeals, effectual, for any purpose, except in a case where it is specially prescribed by law, that security is not necessary, to perfect the appeal, the appellant must give a written undertaking, to the effect, that he will pay all costs and damages, which may be awarded against him on the appeal, not exceeding five hundred dollars. The appeal is perfected, when such an undertaking is given and a copy thereof, with notice of the filing thereof, is served, as prescribed in this title. Undertaking to stay execution. Code Civ. Pro., §§ 1327-1333. Exception to sureties; justification. Code Civ. Pro., § 1335. Security may be waived. Code Civ. Pro., § 1305. Deposit in lieu of undertaking. Code Civ. Pro., § 1307. Stay of proceedings. Code Civ. Pro., §§ 1310-1311. New undertaking. Code Civ. Pro., § 1308. Action on undertaking. Code Civ. Pro., § 1309. No security required from people. Code Civ. Pro., § 1313. Security, when required of domestic municipal corporation. E Provisions of Code Code Civ. Pro., § 1314. Form of undertaking. Code Civ. Pro., § 1334. Undertaking must be filed with clerk, with whom the judgment or order appealed from is entered. Code Civ. Pro., § 1307. And a copy thereof, with a notice showing where it is filed, must be served on the attorney for the adverse party, with the notice of appeal, or before the expiration of the time to appeal. Code Civ. Pro., § 1334. There is no appeal to the Court of Appeals pending until the undertaking prescribed by Code Civil Procedure, section 1326, is given, and consequently the Supreme Court has no power to grant a stay under section 1331. Guilfoyle v. Pierce (1897), 22 App. Div. 131, 47 N. Y. Supp. 899. An undertaking for costs is necessary in an appeal from an order, as well as a judgment. Cowdin v. Teal (1876), 67 N. Y. 581. The courts cannot dispense with an undertaking, but the omission may sometimes be supplied. Architectural Iron Works v. City of Brooklyn (1881), 85 N. Y. 652. Nunc pro tunc filing, see Hunter v. Hatfield (1878), 73 N. Y. 600. |