McMahon v. Allen

13 Abb. Pr. 126, 22 How. Pr. 193

Opinion

Ingraham, J.

—The general, term in this case reversed the order of the special term, and ordered a new trial.

*. From this order the plaintiff appealed to the Court of Appeals, and gáve an undertaking in $250, under section 334 of the Code.

. The defendant, notwithstanding such undertaking being filed, noticed the cause for trial again under the order .of the general term. The plaintiff now moves to strike the cause from the calendar, upon the ground that the undertaking filed by him. stayed all proceedings for a new trial until the decision of the • Court of Appeals.

There is no provision in the Code providing for such a case as the present,—prescribing directly the mode in which proceedings in the court below are to be stayed,—nor does the act of 1857, allowing an appeal in such a case, make any'such provision. Section 334, under which this undertaking is given, however, was not intended to give a stay in any case on filing the undertaking in $250. It is not given as a security for any just claim, but to provide for the costs and damages which may be awarded against the appellant on the appeal, and no appeal is valid without it, whatever other security may be given for the claim. In Valton a. National Loan Fund Life Assurance (19 How. Pr., 515), Hr. Justice Gould held that proceedings on such an appeal did not stay the entry of judgment in the court below, in pursuance of the order appealed from, and the Common Pleas adopted a similar rule in Tiers a. Carnahan (3 Abbotts’ Pr., 69).

And the other sections, from 334 to 343, which apply to a • stay of proceedings, are confined to cases in which a judgment is recovered, and not to an appeal from an order., I conclude, therefore, that the only way in which, in such a case as this, the proceedings in the court below can be stayed after an order for a new' trial has been made by the court, is by a motion directly for that purpose in this court. On such an application, the court can impose such terms as to security as will be sufficient to protect the respondent against loss, if in the Court of Appeals there should be a decision adverse to the decision of the general" term. -Such is the practice on appeals from the special to the general term, where no judgment is entered; and in the absence of any provision in the Code, the same practice should, from analogy, be followed.

The motion to strike the cause from the circuit calendar must be denied. Defendant’s costs, $10—to abide event.

Reported, 12 Ante,. 275.