| NY | Oct 27, 1896
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *534
No security was required to perfect the appeal to the General Term from the order denying the motion for a new trial. (Code, § 1351.) But the taking of the appeal did not, ipso facto, stay proceedings on the judgment. They could only be stayed by an order of the court directing a stay. (Id.) The giving of the undertaking on an appeal from the order was ineffectual for that purpose. It was the voluntary act of the defendants in the judgment, not directed by the court, and no order was obtained staying the proceedings. The attorneys for the appellants on the appeal from the order seem to have supposed that on appeal from an order, the same rule applied, as on appeal from a final judgment, namely, that the giving of an undertaking in the form prescribed by law, for the stay of execution, operates as a stay of proceedings without any order of the court. But it is only where the appeal is from the judgment that this consequence follows from the giving of an undertaking. (Code, § 1352.) The language of sec. 1351 leaves no room for construction: "Security is not required to perfect the appeal; *536
but, except where it is otherwise specially prescribed by law, the appeal does not stay the execution of the judgment or order appealed from; unless the court in and from which the appeal is taken, or a judge thereof, makes an order directing such stay." There is no statute taking an appeal from an order denying a motion for a new trial on the minutes out of the general rule declared by this section, as is the case on appeal from a judgment. The plaintiff in the judgment in the action in which the undertaking was given was not precluded thereby from proceeding to enforce the judgment pending the appeal from the order, since no direction of any court or judge had been obtained directing a stay. The attorneys for the plaintiff in the judgment acted upon this view. After the undertaking had been given they directed the sheriff who held the execution to proceed with its collection, and so far as appears the direction has never been withdrawn. The plaintiff's attorneys were correct in their assumption that the undertaking did not, unaccompanied by an order of the court, stay proceedings on the judgment. If nothing further had transpired it would seem plain that the plaintiff could not enforce the undertaking. It was a voluntary agreement, ineffectual to accomplish the purpose for which it was executed. It did not secure to the defendants in the judgment the benefit intended, was supported by no consideration, and was treated by the plaintiff as ineffectual and void. (See Wing v. Rogers,
But it is claimed that the stay of proceedings pending the hearing of the motion noticed by the defendants in the judgment for an order staying proceedings pending the appeal, made by the county judge July 15, 1892 (after the undertaking had been given and after the plaintiff's attorney had directed the sheriff to proceed on the execution), was based on the undertaking, and that for the the period of such stay, that is, between the notice and hearing of the motion, the defendants in the judgment had the benefit of the undertaking. The action of the county judge, it is said, was equivalent to an order staying the proceedings, pro *537 tanto, on the security of the undertaking. Without considering whether the county judge has any power to grant a stay (see Code, sec. 772), the claim that the county judge made the temporary stay because of the security furnished by the undertaking, proceeds upon the unfounded assumption that a court or judge cannot grant a temporary stay of proceedings on a money judgment for any time, however short, pending the hearing of a motion in the action, without exacting security, and that, therefore, the judge must have given effect to the undertaking as security. Section 613 of the Code, relied upon to sustain this assumption, has no application. That section is in the title of the Code regulating proceedings on injunctions. It relates to injunction orders issued in aid of the provisional remedy by injunction. While a stay of proceedings in an ordinary action is in some sense an injunction order, the power to grant such a stay is not given by the provisions of the title relating to injunctions, but by distinct statutory provisions, or the practice of the court, where the procedure has not been otherwise prescribed.
We know of no statute or practice which disables a court or judge, in his discretion, from staying proceedings on a judgment pending a motion in the action, with or without security. This power, so far as we know, has hitherto been unchallenged. It is subject to statutory limitation and has been limited in respect to the period during which the stay may be made to extend, as, for example, by section 775 of the Code. It cannot, therefore, be inferred that the county judge, in staying proceedings pending the motion, referred to, was influenced by the fact that the appellants on their appeal from the order refusing a new trial, had given the undertaking in question. The disposition made of the motion on the hearing shows that the court regarded the undertaking as a nullity. It granted a permanent stay on condition that the appellant should within two days give an undertaking staying the execution of the judgment pending the appeal from the order. This by clear implication left the plaintiff at *538 liberty to proceed unless the undertaking was given. We think the plaintiff was not entitled to enforce the undertaking in question. It did not stay the plaintiff's proceeding as matter of law. The plaintiff did not forbear proceedings on the faith of it, but promptly directed the sheriff to disregard it. The temporary stay granted by the county judge furnished no consideration to support the undertaking for the reason indicated. The fact that, after the hearing and decision of the motion, the plaintiff and the sheriff took no steps to enforce the judgment is immaterial. The forbearance was not induced by any act of the sureties or of the principal.
The undertaking cannot be enforced as a common-law contract. The plaintiff refused to regard it as effectual to stay proceedings. There is nothing from which a mutual agreement of the parties can be inferred that proceedings on the judgment should be stayed in consideration of the undertaking, or from which a request of forbearance acted upon by the plaintiff, can be implied.
We think the judgment should be reversed and a new trial ordered, with costs to abide the event.
All concur.
Judgment reversed.