Winterhoff v. Siegert , 13 Abb. Pr. 182 ( 1861 )

Bosworth, Ch. J.

—The only case in which section 338 of the Code authorizes a judge to fix the sum in which an undertaking shall be given, to operate as a stay in ease of an appeal, is an appeal from a judgment, and from such a judgment as that section describes. The appeal in question is not from a judgment, but from an order made on a motion in a summary proceeding taken in the, action after judgment. The distinction between appeals from judgments, and orders, is recognized in sections 11, 323, 330, 321, and 334.

Section 334 requires the undertaking therein mentioned to be given as well on appeal from an order, as from a judgment.

Sections 33A-339 speak only of appeals from judgments.

I think that section 338 does not authorize a judge of the court to entertain an application under it when the appeal is from an order. When an appeal from an order has been taken and perfected, if the appellant desires a stay of proceedings pending the appeal, the court may probably, in the exercise of its discretion, grant a stay upon such terms as may be just.

If it be imposed as- a condition to granting a stay, that an undertaking be given to comply with such condition, it will be an available security to the respondent, if the order be affirmed.

This motion probably should have been heard before Judge Hoffman. I have conferred with him before deciding the motion. The order of July 17, 1861, must be vacated.

Motion granted.