Montefeiore v. Favilla

63 How. Pr. 386

Opinion

Truax, J.

The defendants ask that the execution of the •judgment herein be stayed pending the decision of their .appeal to the general term of this court. The judgment, .among other things, provides for the recovery of ,a chattel now held by the defendants.

Section 1329 of the Code of Civil Procedure provides that if an appeal is taken from a judgment for the recovery of a chattel it does not stay the execution of the judgment until the appellant gives a written undertaking in a sum fixed by the court below, or a judge thereof, to the effect that the appellant will obey the direction of the appellate court. Section 1331 of the Code, in substance, provides that in certain •cases the court shall fix the amount of the undertaking required to be given in order to stay proceedings on the judgment.

I am of the opinion that it is the duty of the judge to whom the application for a stay is made to fix the amount of the undertaking, and, upon the giving of an undertaking in the sum of $1,000, as required by the section above referred to, and the approval thereof by the court, the execution of this judgment herein will be stayed pending the appeal to the general term of this court.