Page images
PDF
EPUB

plaintiff, on appeal from such judgment by the defendant, he must, to stay the proceedings, give the undertaking required by §§ 334, 335, and 336 (Elliot v. Buckland, 37 How. 71).

$337. If to execute conveyance, it must be executed and deposited.

If the judgment appealed from direct the execution of a conveyance or other instrument, the execution of the judgment shall not be stayed by the appeal until the instrument shall have been executed, and deposited with the clerk with whom the judgment. is entered, to abide the judgment of the appellate court.

a. Upon an appeal from a judgment directing the execution of an instrument, the proceedings can be stayed only by the execution and deposit of such instrument, and by giving the security required by section 334 (Waring v. Ayres, 12 Abb. 112).

b. A deed of land was deposited with a clerk in chancery, for the purpose of staying proceedings on a decree for specific performance, and was lost. The decree was afterward affirmed,-held that the appellant was bound to execute a new deed (Worrall v. Munn, 17 N. Y. 475).

$338. Security where judgment is to deliver real property or for a sale of mortgaged premises.

If the judgment appealed from direct the sale or delivery of possession of real property, the execution of the same shall not be stayed, unless a written undertaking be executed on the part of the appellant, with two sureties, to the effect, that during the possession of such property by the appellant, he will not commit, nor suffer to be committed, any waste thereon, and that if the judgment be confirmed, he will pay the value of the use and occupation of the property, from the time of the appeal until the delivery of possession thereof, pursuant to the judgment, not exceeding a sum to be fixed by a judge of the court by which judgment was rendered, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency.

c. Where the judgment directs the sale of real estate, the court has no discretionary power, unless the appellant be an executor, administrator, trustee, or other person acting in another's right, to limit the amount of security (Watt v. Watt, 15 Abb. 367, note). See § 339.

d. On an appeal from a judgment for a sale of mortgaged premises, the appellant gave an undertaking pursuant to section 334, and it was held effectual to permit the appeal, but not to stay proceedings (Fireman's Ins. Co. of Albany v. Bay, 2 Code Rep. 3). See section 339.

339. (Am'd 1849, 1851.) Stay of proceedings upon security given. When court may dispense with security.

Whenever an appeal is perfected as provided by sections 335, 336, 337, and 338, it stays all further proceedings in the court below, upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action, and not affected by the judgment appealed from. And the court below may, in its discretion, dispense with or limit the security required by sections three hundred and thirty-five, three hundred and thirty-six, and three hundred and thirty-eight, when the appellant is an executor, administrator, trustee, or other person acting in another's right; and may also limit such security to an amount not less than fifty thousand dollars, in the cases mentioned in sections three hundred and thirty-six, three hundred and thirty-seven, and three hundred and thirty-eight, where it would otherwise, according to those sections, exceed that sum.

a. An appeal is "perfected" when the proper undertaking, with an affidavit of the sureties, has been executed, and notice of the appeal has been served on the adverse party, and on the clerk with whom the judgment or order is entered; and the twenty days under Rule 2, and the forty days under Rule 7, commence running from that time (Thompson v. Blanchard, 4 How. 210).

b. On an appeal by executors a statement of the want of assets sufficient to pay the judgment, would no doubt be regarded as a good reason why the security should be limited, at least to the amount of assets disclosed applicable to the payment of the judgment appealed from (Mills v. Forbes, 12 How. 466); and this would be the case as well on an appeal to the general term as on an appeal to the court of appeals (id.)

c. Where, after an execution has been levied the defendant appeals to the court of appeals, and gives the security required for a stay of execution on the judgment, it does not remove the lien of the execution. The proceeding on the execution is suspended until the decision of the appellate court. If the appeal is dismissed or the judgment affirmed, the respondent is entitled to resume proceedings on his execution, and will have priority over a subsequent execution (Re Berry, 26 Barb. 55). See note to § 357.

d. The effect of giving security is merely to stay proceedings on the judgment; it discharges nothing, but merely stops the judgment creditor where he was at the time of giving security. It gives the court no authority to vacate any proceeding, or release any right previously acquired, and therefore where an execution had been levied before the requisite undertaking to stay proceedings had been given, the court refused to supersede such execution (Rathbone V. Morris, 9 Abb. 213).

e. The taking an appeal and giving security to stay, do not, per se, operate to discharge a previous levy, nor supersede an execution issued before the appeal was taken (Cook v. Dickerson, 1 Duer, 679; Stricker v. Wakeman, 13 Abb. 85). But where such an appeal is taken in good faith and ample security given, the court will ordinarily supersede a previous execution and discharge a previous levy (id.)

f. Where proceedings are stayed on appeal, the stay continues until judgment on the appeal is perfected. And where proceedings have been stayed on

appeal, the issue of execution on the judgment below before the entry of the judgment on the appeal, is irregular (Bowman v. Tallman, 19 Abb. 84; 28 How. 482; 2 Rob. 632; 3 id. 633).

See note to § 338.

340. (Am'd 1849.) Undertakings may be in one instrument or several.

The undertakings prescribed by sections 334, 335, 336 and 338, may be in one instrument or several, at the option of the appellant; and a copy, including the names and residence of the sureties, must be served on the adverse party with the notice of appeal, unless a deposit is made as provided in section 334, and notice thereof given.

a. This section in terms requires copies of all undertakings necessary; and which the appellant intends to give, to be served with the notice of appeal, and, therefore, where the notice of appeal was given on the 7th of August, and an undertaking under section 334 filed at the same time, and on the 4th of September following, an undertaking, pursuant to section 335, was filed, it was held, that it should have been filed with the notice of appeal, and as it was not, it did not stay the proceedings (N. Y. Central Ins. Co. v. Safford, 10 How. 344; Cushman v. Martine, 13 id. 402; Smith v. Heermance, 18 id. 261; and see Mills v. Thursby, 11 id. 129).

b. But if it be shown that the omitting to file the undertaking when notice of appeal was served, was the result of accident, the court has power to rectify the mistake and stay the proceedings, under section 327 (N. Y. Central Ins. Co. v. Safford, supra).

§ 341. (Am'd 1849.) Sureties to justify.

An undertaking upon an appeal shall be of no effect, unless it be accompanied by the affidavit of the sureties, that they are each worth double the amount specified therein. The respondent may, however, except to the sufficiency of the sureties, within ten days after notice of the appeal; and unless they or other sureties justify before a judge of the court below, or a county judge, as prescribed by sections 195 and 196, within ten days thereafter, the appeal shall be regarded as if no undertaking had been given. The justification shall be upon a notice of not less than five days.

c. Where the notice of justifying is served by mail, it must be double time, or ten days (Dresser v. Brooks, 5 How. 75). Thus, where the respondent on the 6th of June served by mail a notice of exception, which was received by the appellant on the 10th of June, the appellant on the same day (the 10th) gave notice by mail that the sureties would justify on the 17th; and the sureties did justify on that day. The court, on motion, held that the appellant was irregular, but, on ground being shown therefor, extended the time for the sureties to justify (id.)

d. The exception should be the "sureties," not to the undertaking (Young ▾ Colby, 2 Code Rep. 68).

e. A notice of exception to sureties served within ten days after the under

taking is filed, is in time, although more than ten days have elapsed since service of a copy of the undertaking and notice of appeal on the respondent (Webster v. Stevens, 3 Abb. 227; 5 Duer, 690). Thus, where the notice of appeal and copy undertaking was served on August 18, but the undertaking was not filed until September 13, and on September 16 the respondent served notice of exception,-held that he was in time (id.)

a. Where sureties on appeal justified on notice to the respondent's attorneys, who refused to attend the justification, because the hour for which notice was given was gone by (the delay being excused),—held, on an affidavit of the respondent that the sureties were irresponsible, that he was entitled to an order of dismissal of the appeal, unless the appellant served a new notice of justification, and the sureties justified anew in pursuance of such notice, or unless new sureties should be substituted who should justify (Hees v. Snell, 8 How. 185).

b. The benefit of an exception, duly taken to sureties on an appeal, is waived by the failure of the respondent to attend the officer before whom the notice of justification is given, although the sureties also fail to attend. The party excepting is the actor in the proceeding, and no step is necessary to be taken except on his requisition (Ballard v. Ballard, 18 N. Y. 491).

c. When the sureties in an undertaking fail to justify the notice of appeal, and all proceedings on the appeal fall through, and the parties are in the same condition as though no appeal had been taken (Kelsey v. Campbell, 38 Barb. 238; 14 Abb. 368; Chamberlain v. Dempsey, 13 Abb. 421; 22 How. 356). d. Under an order made on the rejection of proposed sureties, granting the appellant ten days' time to file a new undertaking with new sureties, and staying all proceedings on the part of the respondent during said ten days, the appellant must not only file a new undertaking, but procure the justification of his sureties within said ten days. The respondent need not accept to such new sureties. Such new undertaking does not operate as a stay until the sureties justify (Chamberlain v. Dempsey, 13 Abb. 421; 22 How. 356).

§ 342. (Am'd 1849.) Perishable property may be sold, notwithstanding appeal.

In the cases not provided for in sections 335, 336, 337, 338, and 339, the perfecting of an appeal, by giving the undertaking mentioned in section 334, shall stay proceedings in the court below upon the judgment appealed from, except that where it directs the sale of perishable property, the court below may order the property to be sold, and the proceeds thereof to be deposited or invested, to abide the judgment of the appellate court.

e. Where a surrogate's decree is appealed from to the supreme court, and the decision of the supreme court is appealed from to the court of appeals, the surrogate's court is the court below, within the meaning of this section (Anon. 3 Code Rep. 69).

See ante, p. 339, g.

f. On an appeal from a judgment awarding plaintiff a perpetual injunction against certain acts by the defendant, an undertaking pursuant to section 334 operates as a stay of all proceedings upon the judgment (How v. Searing, 6 Bosw. 684).

g. An application to punish the defendant for a violation of said injunction is a proceeding on the judgment, and is stayed by such an appeal (id.); but the injunction is not vacated (id.)

h. On appeal from a judgment directing the delivery of personal property, such as will depreciate by time and use, the court will not order a stay of pro

ceedings or an undertaking to obey the order of the court upon the appeal, but will require the respondent to be indemnified against loss by the depreciation of the property (Read v. Potter, 11 Abb. 413; see note to § 233, ante).

§ 343. (Am'd 1866.) Undertaking to be filed. Appeals from orders.

The undertaking must be filed with the clerk with whom the judgment or order appealed from was entered. The provisions of this chapter as to the security to be given upon appeals, and as to the stay of proceedings, shall apply to appeals taken under subdivision three of section eleven.

CHAPTER III.

Appeal to the Supreme Court from an inferior Court.

SECTION 344. Appeal, in what cases.

345. Security must be given as upon appeal to court of appeals.
346. Appeals, where heard.

347. Judgment on appeal, where entered and docketed.

§ 344. (Am'd 1849, 1858, 1860.)

Appeal, in what cases.

An appeal may be taken to the supreme court, from the judg ment rendered by a county court, or by the mayors' courts or the recorders' courts of cities.

An appeal may also be taken to the supreme court from any order affecting a substantial right, made by a county court, or a county judge, in any action or proceeding, and such appeal shall be heard on a copy of the papers on which the order appealed from was made.

a. Power on appeal.-Upon an appeal from an inferior court to the supreme court under this section, the supreme court possesses no other powers than formerly upon writ of error. Accordingly, upon an appeal from a mayor's court to the supreme court, the latter cannot reverse the judgment, because the jury have given excessive damages; such errors are to be corrected in the court below (Thurber v. Townsend, 22 N. Y. 517; and see Lynch v. McBeth, How. 113; Dorr v. Birge, 5 How. 323; 8 Barb. 351). An appeal to the supreme court from a judgment of the county court does not authorize the supreme court to reverse the judgment and grant a new trial upon exceptions taken upon the trial in the county court. A new trial must be moved for in the county court before an appeal can be taken on a case or bill of exceptions in that court to the supreme court (Carter v. Werner, 27 How. 385; contra, see Monroe v. Monroe, id. 208; Dixon v. Buck, 42 Barb. 70; and see Whitney V. Wells, 28 How. 150; Boughton v. Mitchell, 19 Abb. 163; 29 How. 68; Simmons v. Sherman, 30 How. 4).

b. An order of a county court dismissing an appeal taken from a judgment of a justice of the peace in summary proceedings to recover the possession of

[ocr errors]
« PreviousContinue »