BRIGGS a. SWALES

BRIGGS a. SWALES. Supreme Court, Seventh, District; General Term, March, 1865. Appeal nr summary Proceedings.—Amendment. Upon an appeal from the judgment of a justice of the peace in summary process to recover possession of land, if the appellant in good faith gives due notice of appeal, an omission through mistake to do any other act necessary to perfect the appeal or to stay proceedings,—e. g., the giving of security,—is amendable by leave of the court. ■ Appeal from an order. The plaintiff appealed from a judgment of a justice of the peace in summary proceedings to recover the possession of land, under chapter 193 of the Laws of 1849. The appeal was transmitted to this court by the County Court of Wayne, the county judge having acted as counsel in the proceeding before the justice, and being for that reason incompetent to hear the appeal. The defendant moved at special term to dismiss the appeal, on the ground that no security had been given as required by law, and an order was made dismissing the appeal with costs, unless the appellant, within ten days, amend his appeal by giving the requisite security and paying the costs of the motion. From that portion of the order which allowed the plaintiff to amend by giving security, the defendant now appealed. [MAJORITY — By the Court.—James C. Smith, J.] By the Court.—James C. Smith, J. The only question is, whether the court has power to make such order. The last clause of section 327 of the Code of Procedure is in these words: “ When a party shall give, in good faith, notice of appeal from a judgment or order, and shall omit, through mistake, to do any other act necessary to perfect the appeal' or to stay proceedings, the court may permit an amendment on such terms as may Be just.” This clause clearly confers the requisite power, if it applies to proceedings under the act of 1849.. Looking at the provisions of the Code alone, we find that section 327 applies to civil actions'only (§ 8), including appeals to a County Court, from judgments rendered by justices of the peace in civil actions (§ 351). But section 5, subdivision 2, of chapter 193 of the Laws of 1849, provides that the proceedings authorized by that act before a justice, “may be removed by appeal to the County Court of the county, in the same manner and with the like effect, and upon like security, as appeals from the judgment of justices of the peace in civil actions; except that the decision of such county judge shall, be an affirmance or reversal of such judgment, and be final.” The effect of this is to put such appeals on the same footing as appeals from judgments in civil actions in all respects, except as therein specified; and, in my judgment, it brings them within the operations of section 327 of the Code. It is true that, by the terms of the act, it is necessary to give security, in order to perfect the appeal (Laws of 1849, ch. 193, § 5, subd. 3; 24 Barb., 438); but if notice of the appeal is given in good faith, the omission to give security through mistake presents one of the very cases which section 327 was designed to remedy. So in the case of appeal to the Court of Appeals, an undertaking must be executed “ to render the appeal effectual for any purpose” (Code, § 334); nevertheless, section 327 is undoubtedly applicable to appeals of that nature. The order should be affirmed, with ten dollars costs of appeaL Order affirmed with costs. Present, Johnson, P. J.; James C. Smith and E. D. Smith, JJ.