Morss v. Hasbrouck. the statute, "as if the judgment or order, from which the appeal is so taken, was to the same effect, as [] the judgment or order so affirmed." If the judg ment or order appealed from had itself rendered or made the original judgment or order, then, clearly, the undertaking to be given on appeal to the court of appeals, must provide for the payment of such judg[2] ment; but as the judgment or order of the general term did not render the original judgment, but simply affirmed it with costs, the undertaking to be given on the appeal to the court of appeals must, in order to "be the same as if the judgment or order, from which the appeal is so taken, was to the same effect, as the judgment or order affirmed," expressly provide for the payment of such original judgment. This seems so clear as to require no extended comment; but there is one further thought to which allusion will now be made. By section 1317 of the Code the judgment or order of affirmance in the general term could not directly award the amount of the original judgment. Its language is, "a judgment, affirming wholly or partly a judgment, from which an appeal has been taken, shall not, expressly and in terms, award to the respondent, a sum of money, or other relief, which was awarded to him by the judgment so affirmed." Of this provision Mr. Throop in his note says: "The second sentence of this section" (the one just quoted), "is new. It was added to prohibit, by an express enactment, the absurd, inconvenient, and unnecessary practice of entering up a judgment for the original amount, when a judgment appealed from is affirmed." [១] By the light of this section, the language of section 1332 is more easily understood. The judgment or order of the general term, when it affirms one previously rendered or made, must be simply an affirmance, and it cannot, "expressly and in terms," render or Morss v. Hasbrouck. make a new one to the same effect as the old. As, therefore, the judgment or order of affirmance does not, expressly and in terms," render or make a new judgment or order to the same effect as the one which it affirmed, it becomes necessary, on appeal to the court of appeals, in order to secure the payment of the original judgment, that "the undertaking must be the same, as if the judgment or order, from which the appeal is so taken, was of the same effect, as the judgment or order so affirmed." Second. Mr. Throop, in his note to section 1332, has left us in no doubt as to his meaning by the insertion of such new section. He says: "The rule has been very obscure, upon the point which this section aims to settle; but it is believed that this section is in accordance with the practical construction of the provisions of the original statute. See Hinckley v. Kreitz (58 N. Y., 583), where it was held that the sureties in the undertaking, given upon appeal to the court of appeals, stand in the relation of sureties to those in the undertaking, given on appeal to the general term. This obscurity was, doubtless, one reason why double judgments were entered, as stated in the note to section 1317, ante." This is a plain and explicit declaration by the author of the section, that it was inserted to remove all obscurity as to the liability of the sureties upon the appeal to the court of appeals. That court had held, in the case to which he refers, that those sureties occupied to the signers of the undertaking, on the appeal to the general term, the position of sureties. Still, as without the provisions of the new section, there might be some doubt as to the extent of the liability by them assumed, he has therein and thereby enacted, that the undertaking shall, in express words, provide for the payment of the original judgment, if the judgment of the general term, affirming such judgment, be itself affirmed by the judg Morss v. Hasbrouck. ment or order of the court of last resort. Section 1332 does not, as the counsel for the appellant argued, declare the effect of the undertaking to be given, but to remove all doubt as to such effect, it prescribes the form of the instrument. Having reached the conclusion that the undertaking of the appellant is defective, the remaining question is, shall his counsel have the opportunity to review the order, which this opinion indicates must be made? On the question involved in the motion, the judge who has heard it, entertains no doubt. He knows, however, the fallibility of human judgment, and the importance of having all doubt solved upon a point of practice of continual occurrence. As the judgment entered is doubtless secured by actual levy upon personal property, and is, also, a lien upon real estate, upon stipulating that such levy shall continue, and that no effort will, during the pending of the appeal from the order now to be made, be used to remove such lien from the real estate, an opportunity to review will be given, by staying its operation until the next general term of this court to be held in the third department; and, if the appeal to be taken is then heard, then a further stay is granted until the decision of the general term upon such appeal. As no costs were either asked or given upon the previous motion, the present one, which presents only one of the points previously decided, must be granted, with $10 costs. McIntyre v. Strong. MCINTYRE, RESPONDENT, v. STRONG, APPELLANT. N. Y. SUPERIOR COURT, GENERAL TERM; MAY, 1882. S$ 1306, 1326. Deposit in lieu of undertaking on appeal to general term.- Cannot be changed or withdrawn, after affirmance and pending appeal to court of appeals.— Amount deposited in lieu of undertaking on appeal to general term, cannot be substituted for undertaking or deposit, on appeal, to court of appeals.- Quære, whether when the general on appeal to the court of appeals. The general rule is, that a voluntary deposit, in lieu of an undertaking, made to stay execution pending an appeal to the general term, can no more be changed or withdrawn than could an undertaking in the place of which the deposit stands. Such an undertaking could not be changed or withdrawn after affirmance of the judgment by the general term, because of an appeal having been perfected to the court of appeals by the execution of an undertaking for that purpose. To perfect an appeal to the court of appeals, a new undertaking must be given or a new deposit made, and the court has no power to order that a sum of money already deposited in lieu of an undertaking on appeal to the general term, shall take the place of the undertaking or deposit required by sections 1306 and 1326, on appeal to the court of appeals. Where, on appeal to the general term, the amount of a judgment was materially reduced by that court, and the reduction was, by stipulation, accepted by the respondent, and the amount deposited by the appellant to stay execution on appeal to the general term exceeded the amount of the judgment, as reduced, by $1,150.76, and the appellant sought to withdraw $650 of such excess, and to have the remainder ($500.76), together with the amount of the judgment as reduced, stand as a deposit to perfect an appeal to the court of appeals; Quære, whether the court had the power to allow any part of the deposit to be withdrawn. But even if the court has such power, it should be exercised only when it clearly appears that the sum proposed to be left on deposit would, in view of all possible contingencies, be fully sufficient to satisfy the amount of any claim which the respondent might eventually have against it, in event of affirmance by the court of appeals, including interest upon the judgment, and the sum of $500 for costs in that court. (Decided June 5, 1882.) McIntyre v. Strong. Appeal by defendant from an order of the special term denying a motion that a part of the amount deposited by him, in lieu of an undertaking on appeal to the general term, be withdrawn, and that the remainder stand in lieu of an undertaking on appeal to the court of appeals. A judgment for $1,545.89 having been recovered by the plaintiff, the defendant appealed to the general term; and, for the purpose of staying execution pending such appeal, deposited with the clerk the sum of $2,300. The general term reversed the judgment, unless the plaintiff should stipulate to reduce the amount thereof to the sum of $1,149.24. Plaintiff made the required stipulation, and thereupon the judgment was affirmed for the reduced amount. The defendant desiring to appeal to the court of appeals, moved that the clerk be directed to pay over to him, out of the money deposited as aforesaid, the sum of $650, and that the remainder, $1,650, be allowed to stand on deposit in lieu of an undertaking, pending appeal to the court of appeals. At special term, the motion was denied "on the ground that the Code gives no authority to the court to grant said motion." Adolphus D. Pape, for appellant. Wm. J. Gibson, for respondent: The deposit made in lieu of an undertaking on appeal from the judgment rendered at trial term, can no more be changed or withdrawn than could the undertaking (Code Civ. Pro. §§ 1352, 1326, 1306; Parsons v. Travis, 2 Duer, 659; S. C. 5 Id. 650). The appellant on appeal to court of appeals, must give an undertaking (§ 1326), or make a deposit in lieu thereof (§ 1306). The court cannot order that the deposit already made shall take the place of such undertaking or deposit. |