Stricker v. Wakeman

13 Abb. Pr. 85

• Court: The Superior Court of New York City
• Decided: November 15, 1861
• Status: Published

Opinion

Woodruff, J.

—It is clear, I think, upon a review of cases already decided, and according to the true import of the Code, that the taking of an appeal from the judgment, and giving the security prescribed by the Code, altliQugh they operate as a stay of proceedings and prevent a sale of property levied upon, do not operate to discharge a previous levy, nor supersede an execution issued before the appeal was taken. But the court has power, in the exercise of its discretion in its equitable control over its own judgments and process, to do both, if the ends of justice or the prevention of unnecessary or oppressive hardship requires it. And it should be done when there is no suggestion that the appeal is not taken in good faith, or that the security given on the appeal is not ample to secure to the defendant the amount of his recovery, if the judgment should be affirmed.

On the payment, by the appellant, of the sheriff’s fees on the execution herein already accrued, the levy may be discharged and the execution set aside.