102 N.Y. 224 | NY | 1886
Under the Code no security is required to perfect an appeal to the General Term from a judgment. It is necessary only when the appellant desires a stay of proceedings pending the appeal. (Code, § 1351.) The giving of the undertaking in this case was, therefore, an idle ceremony, unless it was intended to secure this object. The attorneys on both sides treated the undertaking as appropriate and effectual for that purpose. It was signed and acknowledged by the sureties, was approved by a judge, and filed in the office of the clerk, and a copy was served on the plaintiffs' attorneys, accompanied *227
with a written notice by the defendants' attorney. The plaintiffs' attorneys at first excepted to the sufficiency of the sureties, but afterward, upon the request of the attorney for the defendants, and upon his assurance that the sureties were responsible, withdrew the objection and consented to accept the undertaking, and they took no proceedings to enforce the judgment until after the determination of the appeal. The transaction was in legal effect a forbearance on the part of the plaintiffs, at the request of the defendants, to pursue their legal remedy against the defendants, pending the appeal, in consideration of the undertaking. The undertaking was in the form prescribed by section 1327 of the Code for undertakings to stay execution on money judgments. It was not in the form of the statutory undertaking prescribed for undertakings to stay proceedings on an appeal from a judgment for the recovery of chattels. (Code, § 1329.) But the undertaking was not illegal; it was not takencolore officii (Cook v. Freudenthal,
The judgment should, therefore, be affirmed.
All concur.
Judgment affirmed. *228