Genter v. Fields

2 Abb. Ct. App. 253

Opinion

By the Court.

T. A. Johnson, J.

There can be no doubt that an appeal to the general term of the supreme court, from a judgment rendered at’ special term, when made according to the provisions of section 337 of the Code of Procedure, is complete and effectual as an appeal for all purposes, except the staying of the proceedings upon the judgment.

If the party appealing desires a stay of proceedings upon the judgment in such a case, he must, in addition to the service of the notices prescribed by section 337, execute to the other party the undertaking provided for by section 335 of the Code. The undertaking is no part of the appeal, which is effectual without it, but operates only to suspend all proceedings upon the judgment pending the appeal. This is the well settled practice, and is in entire harmony with the several provisions of the Code. Kitching v. Diehl, 40 Barb. 433; Niles v. Battershall, 36 How. Pr. 93; Staring v. Jones, 13 Id. 433. Many other cases might be cited, but there is no doubt as to the practice. Section 348 of the Code expressly provides that “ Such an appeal, however, does not stay the proceedings unless security be given, as upon an appeal to the court of appeals, and such security be renewed, as in cases required by section 335, on motion to the court at special term, or unless the court or a judge thereof so order,” etc.

This is different from appeals to the court of appeals, which are not effectual for any purpose unless an undertaking be executed by the appellant for the payment of all costs and damages which may be awarded against him upon the appeal, not exceeding Wo hundred and fifty dollars, as provided for by section 334

* This provision has no application whatever to appeals provided for by chapter 4 of the Code, under which the appeal in question was brought, and which relates exclusively to appeals in the same court from a single judge to the general term thereof.

This chapter contains no provision for the dismissal of any appeal because an undertaking has not been executed or renewed in pursuance of an order to that effect. The only provision on the subject of an undertaking, in this chapter, is contained in section 348, already cited. If no undertaking is executed by the appellant, the judgment may he enforced the same as though no appeal had been brought, but the appeal is stilly effectual and to be heard. And so if an undertaking has been executed and proceedings upon the subject thereby stayed, the stay ceases and becomes inoperative, if the undertaking is not renewed in pursuance of an order of the special term requiring such renewal, and the judgment may then be enforced the same as though there had been no stay.

Neglect or refusal to complv with the order to renew the undertaking, operates upon tne stay of proceedings on the judgment, and puts an end to it, but in no respect affects the appeal.

The penalty of dismissal of the appeal, in ease of neglect to execute the new undertaking, in pursuance of the order prescribed by section 335, applies only to appeals to the court of appeals. It is not made applicable to any other class of appeals, either by its terms, or by the policy of the Code. In appeals of this kind the penalty for the neglect to execute such new undertaking is, that the proceedings upon the judgment are no longer stayed. This is plain from the manner in which section 348 was amended in 1859, which was by inserting, “ and such security be renewed as in cases required by section 335 on motion of the court at special term.” This is added as something further to be done by the appellant to affect or to continue a stay pending the appeal.

The plain object of the amendment was to remedy a defect in the section as it before stood, and to prevent or determine the. stay after the sureties had become insolvent, but not to affect the appeal.

The supreme court erred, therefore, in holding that the effect of a non-compliance with their order to renew the security, was to vitiate the appeal.

The dismissal was not a matter of discretion, but of strict legal right; and as the effect was to prevent a judgment from which an appeal to this court might be taken, it is an appeal-able-order. Code, § 11; Bates v. Voorhees, 20 N. Y. 525. The order dismissing the appeal should therefore be reversed, with costs of the appeal.

All the judges concurred.

Order appealed from reversed, with costs.

The sum was increased to five hundred dollars," by the amendment to section 334, passed in 1865.