Tiers v. Carnahan , 3 Abb. Pr. 69 ( 1856 )

Brady, J.

The defendant applied at special term to have the judgment rendered herein against him vacated. This application was denied, and the order made was on his appeal affirmed by the general term. He then appealed to the Court of Appeals from the decision of the general term, filing an undertaking in $250, against costs and damages, and now asks that the proceedings of the plaintiff on the judgment be stayed, by reason of the premises.

There is no provision in the Code declarative of the effect of such an appeal, or what security shall be given in perfecting it. Section 335 provides only for a stay of proceedings when the appeal is on the judgment and á stay is desired; and although there are several cases, and in seeming conflict, upon the question whether an appeal from an order of the special to the general term operates per se as a stay of proceedings, (6 How. Pr. R., 32; 8 lb., 286, 487; 10 lb., 103; 1 Duer, 622 ; 2 Abbott's Pr. R., 120), none of them furnish any guide in determining the question presented on this motion. They relate to appeals from different branches of the same tribunal only. The Code and the statute book are silent on the subject, and there being no express enactment, the stay asked, rests within the sound discretion of the court. (Story v. Duffy 8 How. Pr. R. 488.)

The appeal was taken doubtless under the third subdivision of section 11 of the Code, and whether well taken is extremely doubtful. That subdivision does not apply to a motion which, involved a mere question of practice, or was addressed to the favor and discretion of the court. (Sherman v. Felt, 2 Comst., 186). The moving papers do not allege the responsibility of the defendant, and it is rendered doubtful at least by the affidavits read in opposition. The effect of a stay might be the loss of the debt, damages and costs, to which the courts are-unwilling to subject a prevailing party where such a result can be obviated.

The motion to stay on the facts disclosed is denied, without costs ; but a stay will be granted, on the defendant’s depositing the amount of the judgment in court, or filing an undertaking executed by two sureties, to be approved by the court, and to justify if accepted to, conditioned to pay the judgment, if the appeal to the Court of Appeals be dismissed or the order appealed from affirmed, and on payment of $10 costs of this motion—the money to be paid in, or undertaking executed within five days after the service of this order, if entered by plaintiff, or five days after the entry of this order, if entered by defendant.