In re the Estate of Wex , 176 Misc. 365 ( 1941 )

Delehanty, S.

While the Surrogate’s Court Act contains no specific provisions relating to the necessity for furnishing security to stay the execution of a decree from which an appeal is pending, except in the case of an appeal by the representative of an estate, section 87 of the act provides: “ Except as otherwise expressly prescribed in this act a perfected appeal has the same effect, as a stay of proceedings, to enforce the decree or order appealed from on a perfected appeal from a judgment.”

Accordingly, the practice on appeals from a decree of this court except in the case of an appeal by an estate representative is governed by the provisions of the Civil Practice Act. Section 594 of the Civil Practice Act provides that if the appeal is taken from a judgment for a sum of money it does not stay the execution of the judgment until the appellant gives a written undertaking to the effect that if the judgment appealed from or any part thereof is affirmed or the appeal is dismissed he will pay the sum recovered or directed to be paid by the judgment or the part thereof as to which it is affirmed. Section 614 of the Civil Practice Act provides that security is not required to perfect an appeal, but, except where it is otherwise specially prescribed by law, the appeal does not stay the execution of the judgment appealed from unless the court or a justice thereof makes an order directing such a stay. Since the provisions of the Civil Practice Act respécting a stay of execution are applicable to the appeal from the decree in this discovery proceeding, the contention of the respondent that the perfecting of the appeal by the filing of the undertaking for costs stays execution of the decree is without merit. If respondent desires to stay execution on appeal, he will be required to file a bond in the sum of $5,000.

Submit, on notice, order accordingly.