Howley v. Kraemer , 71 N.Y.S. 948 ( 1901 )

Blanchard, J.

This is an application to set aside an execution issued out of the Municipal Court of the city of Hew York, and to vacate a levy made thereunder by a city marshal.

It is claimed that such execution was irregularly and improperly issued, because at the time of its issuance a stay had been perfected upon the appeal to this court in accordance with the statutory enactments pertaining to this subject. The only question here presented is whether or not the undertaking filed and copy served was a sufficient compliance with the statute. When the undertaking was filed it had not been approved by the justice who rendered the judgment, or by a judge of the Appellate Court, as is required by section 3050 of the Code of Civil Procedure, and in fact it was not approved by any one. ¡Neither did the copy served contain any such approval. It is contended, because section 1335 of the Code of Civil Procedure is made applicable by section 3050- to such an undertaking, and because by section 1335 it is provided, that “ It is not necessary that the undertaking should be approved,” that, therefore, the approval of the undertaking was unnecessary in this case. The statement in section 3050 that “ Section 1335 of this act applies to such an undertaking ” must be held to mean that it applies so far as it is not inconsistent with what is specifically provided by section 3050. Since it is specifically provided by section 30-50 that the undertaking must be approved, I must' conclude that the stay was not perfected and that the execution was properly issued.

It appears, however, that within a few days thereafter the approval of the justice who rendered the judgment appealed from was obtained, but it does not appear from the papers here submitted that further proceedings were stayed by a compliance with section 3051 of the Code of Civil Procedure, by the service of a copy of the approved undertaking. When that section is complied with the execution may be vacated upon payment to the marshal of his legal fees.

The motion is denied, without costs, but an order will be made in accordance with the views herein expressed.

Motion denied, without costs.