| NY | Jan 23, 1879
Under the Old Code, in order to perfect an appeal to this court, it was necessary that the requisite undertaking should be executed before the notice of appeal was served, because section 340 required that a copy of the undertaking should be served with the notice of appeal.
Under the New Code, the notice of appeal may be served before any undertaking has been executed. (§ 1300.)
In such case the notice is one of the steps in the process of appealing, but it does not become effectual for any purpose until an undertaking has been given. (§ 1326.) The undertaking may be given at any time before the expiration of the time for appealing, and section 1334 provides that a copy thereof "must be served with the notice of appeal, or before the expiration of the time to appeal." Here the undertaking given was not a compliance with the statute, *108 and is now claimed by both parties to have been a nullity. The case must then be treated as if nothing but the notice of appeal had been served. That was regular, and cannot be set aside. As there was no undertaking, there was no appeal, and the return could not properly be made to this court, and the cause could not properly be placed upon the calendar, and there is no appeal to dismiss.
The result is that appellant's motion to strike the cause from the calendar, must be granted, and respondent's motion must be denied, with ten dollars costs.
All concur.
Ordered accordingly.