Hallenbeck v. Company E, Thirteenth Regiment, New York State National Guard

New York Supreme Court

Hallenbeck v. Company E, Thirteenth Regiment, New York State National Guard

24 N.Y. Sup. Ct. 234

DecidedFebruary 15, 1879

StatusPublished

This text of 24 N.Y. Sup. Ct. 234 (Hallenbeck v. Company E, Thirteenth Regiment, New York State National Guard) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hallenbeck v. Company E, Thirteenth Regiment, New York State National Guard, 24 N.Y. Sup. Ct. 234 (N.Y. Super. Ct. 1879).

Pincite

Opinion

Dykman, J.:

The plaintiff obtained a judgment against the defendant in a court of a justice of the peace for more than fifty dollars, and the defendant apjiealed to the County Court from the judgment, and stated in the notice of appeal that such appeal was taken upon questions of law only. No undertaking was given and a motion [235]*235was made in the County Court to dismiss the appeal for that reason, which was granted, and now the defendant appeals from that order.

By section 352 of the Code of Procedure no new trial could be had in the appellate court on this appeal. Section 355 of the Code provides that when, by the terms of section 352, the appellant is entitled to a new trial in the appellate court, he shall, at the time of taking his appeal, give security as provided in the next section ; and in all other cases he shall give security if he desires a stay of execution of the judgment. In this action, therefore, as the appellant was not entitled to a new trial in the appellate court security was not necessary for the perfection, of the appeal, and was only necessary to stay the execution of the judgment.

The order dismissing the appeal must therefore be reversed* with ten dollars costs and disbursements.

Barnard, P. J., concurred. Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order reversed, with costs and disbursements.

Free access — add to your briefcase to read the full text and ask questions with AI

Dykman, J.:

The plaintiff obtained a judgment against the defendant in a court of a justice of the peace for more than fifty dollars, and the defendant apjiealed to the County Court from the judgment, and stated in the notice of appeal that such appeal was taken upon questions of law only. No undertaking was given and a motion [235]*235was made in the County Court to dismiss the appeal for that reason, which was granted, and now the defendant appeals from that order.

By section 352 of the Code of Procedure no new trial could be had in the appellate court on this appeal. Section 355 of the Code provides that when, by the terms of section 352, the appellant is entitled to a new trial in the appellate court, he shall, at the time of taking his appeal, give security as provided in the next section ; and in all other cases he shall give security if he desires a stay of execution of the judgment. In this action, therefore, as the appellant was not entitled to a new trial in the appellate court security was not necessary for the perfection, of the appeal, and was only necessary to stay the execution of the judgment.

The order dismissing the appeal must therefore be reversed* with ten dollars costs and disbursements.

Barnard, P. J., concurred. Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order reversed, with costs and disbursements.

Cite This Page — Counsel Stack

Bluebook (online)

24 N.Y. Sup. Ct. 234, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hallenbeck-v-company-e-thirteenth-regiment-new-york-state-national-guard-nysupct-1879.