142 N.Y.S. 350 | N.Y. App. Div. | 1913
On the 12th day of March, 1913, on an appeal by the defendant, this court (155 App. Div. 516) reversed a judgment of the Special Term pursuant to which certain certificates of stock and dividends, and interest thereon, and the sum of $5,993.81, were delivered to the plaintiff on the 4th day of April, 1911, and ordered and adjudged that the certificates of stock and moneys so delivered, together with interest on the moneys, be forthwith restored and delivered to the defendant Smedley, and that the complaint as against her be dismissed on the merits together with costs in all courts; and, upon a certified copy of the order of this court, judgment in accordance therewith was duly entered in the office of the clerk of the county of New York on the 19th day of March, 1913. The plaintiff thereupon obtained an order to show cause why an order should not be made staying the execution and enforcement of the judgment pending his appeal therefrom to the Court of Appeals and, pending the motion, he obtained a stay of proceedings on the part of the defendant Smedley to enforce the judgment. The affidavit upon which the order to show cause was obtained showed that the plaintiff had appealed from the judgment and had given an undertaking for the payment of all costs and damages
The order from which the appeal was taken stays the execution and enforcement of the judgment pending the appeal to the Court of Appeals upon the delivery into court of the certificates of stock and upon the giving of a further undertaking by the plaintiff in the sum of $6,000, for the payment of all costs and damages which may be awarded against him on the appeal and, in the event that the judgment should be affirmed or the appeal dismissed, the payment of “the sum recovered or directed to be paid by the said judgment.”
It is contended in behalf of the plaintiff that upon giving the further undertaking required by the order, he will have complied with the provisions of section 1327 of the Code of Civil Procedure with respect to giving security to obtain a stay of the execution of the judgment in so far as it requires the payment or delivery of money, and that on the delivery of the securities into court as required by the order he will have complied with the provisions of section 1328 of the Code of Civil Procedure with respect to obtaining a stay of the execution of the judgment in so far as it relates to the delivery or return of the securities, and that, thereupon, by virtue of the provision of section 1310 of the Code of Civil Procedure he will become entitled to a stay as matter of right.
We are of opinion that these contentions are untenable. The undertaking which has been given by the plaintiff was required by section 1326 of the Code of Civil Procedure to perfect his appeal. The provisions of section 1327 of the Code of Civil Procedure with respect to obtaining a stay of the execution of a judgment for a sum of money or of a judgment or order directing the payment of a sum of money, and of section 1328 of the Code of Civil Procedure with respect to the stay pending appeal on the execution of a judgment or order directing the assignment or delivery of a document or of personal property, other than a chattel mentioned in section 1329, by bringing, the same into court or placing it in the custody of an officer or receiver designated by the court, plainly relates, I think, to an original judgment or order for the delivery of ' property or the payment of a sum of money, and not to an
It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.