
    SUPREME COURT.
    Samuel S. Briggs, respondent agt. George Swales, appellant.
    By the act of 1849, an appeal from a judgment of a justice of the peace in summary procedings to recover the possession of land, is brought within the operation of section 327 of the Code, and authorizes the county court to allow the appellant to amend his appeal by giving the security required by that act, where he omits, on bringing his appeal, to give such security.
    
      Seventh, District General Term, March, 1865.
    Johnson, J. C. Smith and E. D. Smith, Justices.
    
   By the court, James C. Smith, J.

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 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 allows the plaintiff to amend by giving security, the defendant now appeals. .

The only question is whether the court has power to make such order. The last clause of section 327 of the Code 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 chap-. ter 193 (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 operation of section 327 of the Code. It is true, that b the terms of the act it is necessary to give security in order to perfect the appeal (Chap. 193, 1849, § 5, sub. 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 $10 costs of appeal.

Order affirmed, with costs.  