In re the Estate of Witmark

15 N.Y. St. Rep. 745

Opinion

Rollins, S.

—The undertaking, filed by the appellant, was intended, no doubt, to be an undertaking such as is required by section 2578 of the Code of Civil Procedure. The undertaking mentioned in this section, does not stay the execution of a decree appealed from, unless the appeal has been perfected by the giving of the undertaking specified in section 2577. To render a notice of appeal effectual for any purpose, it is necessary to furnish this last mentioned undertaking. Matter of Burgess Cluff, Daily Reg., Feb. 4, ’87.

No question is made that the notice of appeal herein was seasonably given, and nothing appears in the papers submitted, to cast suspicion upon the good faith of the efforts of the appellants to effectuate her appeal. I shall exercise the power_ conferred on me in the premises by the statute, and permit him to now give the necessary security. Sections 2575 and 1303, Code Civ. Pro.

Should he avail himself of this exercise of discretion, the effect will be a stay of all proceedings for the enforcement of such part of the decree herein as vthe notice of appeal refers to. The right to enforce such part of the decree as is not appealed from, is unaffected by the appeal attempted to be taken. Sections 2584 and 1310 Code Civ. Pro.

Unless, therefore, the respondent shall, within five days from the service of a copy of this order upon him, pay to the petitioner the amount with which he is charged by the decree,_ and respecting which no appeal has been taken, I shall direct the issuance of a warrant for his commitment.