Steam Navigation Co. v. Weed

8 How. Pr. 49

• Court: New York Supreme Court
• Decided: November 15, 1852
• Status: Published

Opinion

Harris, Justice.

If a party appealing from a. judgment entered upon the report of a referee, would have proceedings stayed upon the judgment, he must either give the security prescribed by the 348th section of the Code, or obtain an order for that purpose from the court or a judge. The court may, if it think fit, make the order without requiring notice to the adverse party, but when the application is made to a judge out of court, the most he is authorized to do is to make an order that the adverse party show cause before himself or some other judge, or some court having authority to entertain the application, why the proceedings should not be stayed until the case can be heard and decided upon the appeal, and staying proceedings in the mean time. The last paragraph of the 4:01st section of the Code is as applicable to such an order as any other. The order staying proceedings in this case, therefore, was unauthorized and must be set aside.

Tthink the motion that the plaintiffs be required to file security for costs should be denied. ■ The defendants have already re-, covered judgment. There is now nothing to prevent their proceeding to enforce that judgment. If the plaintiffs stay the proceedings, they must either give security for the judgment and costs, or the stay must be obtained from the court or a judge. In the • latter case the order will be made upon such terms, as to security or otherwise, as may be just. The fact that the plaintiffs are a' foreign corporation may be a proper consideration to .'present upon the application for such an order. The defendants, having but partially succeeded in their motion, are not entitled to costs,