Staring v. Jones , 13 How. Pr. 423 ( 1856 )

Welles, Justice.

The stipulation upon which the defendants rely, must be laid out of view. So far as it could, by possibility, aid them, it is flatly denied. It is not produced, and no sufficient reason is given for not producing it. It is not a paper belonging to the files of the clerk’s office, and it was unnecessarily placed there after the dispute arose respecting its contents.

The notice of appeal was not served upon the plaintiff’s attorneys until after they had issued their execution. The execution was, therefore,.regular. The defendants’ appeal, however, is regular, and in time. There has been no written notice of the judgment served upon the defendants or their attorneys. Nothing short of this will limit the time in which to appeal. Actual knowledge of the entry of the judgment, by the defendants or their attorneys, will not supersede the written notice.

The motion to set aside the execution must be denied, with seven dollars costs.

The application to stay- proceedings until the decision of the appeal by the general term, is also denied.

An appeal from a judgment entered upon the report of a referee does not operate to stay execution, without the undertaking provided by the Code, unless a judge of the court so order. Nothing appears in these papers to justify such an order. (Code, § 348.)

I incline to the opinion that the defendants may now give the requisite undertaking, and thus stay the plaintiff’s proceedings. The defendants may have ten days to serve a case or bill of exceptions, and the plaintiff thirty days to propose amendments.