230 A.D. 767 | N.Y. App. Div. | 1930
Order modified by striking out the last two paragraphs thereof and substituting in place thereof a provision that a stay of all proceedings pending the appeal to the Court of Appeals from the judgment herein be granted, provided the defendant give an undertaking, with corporate surety, pursuant to section 598 of the Civil Practice Act, to the effect that it will not, while in possession of the property, permit or suffer to be permitted any waste thereon and that, if the judgment be affirmed or the appeal dismissed, the appellant will pay any deficiency which may occur upon the sale, wuth interest and costs, and all expenses chargeable against the proceeds of the sale. As so modified, the order is affirmed, with ten dollars costs and disbursements to appellant. In our opinion, the provisions of section 594 of the Civil Practice Act have no application to this appeal. The judgment appealed from is not a money judgment, but is in effect one to foreclose an equitable mortgage. (Elterman v. Hyman, 192 N. Y. 113.) The undertaking to be given in order to stay proceedings should, therefore, conform to section 598 of the Civil Practice Act and be similar in form to one to be given to stay pro