Smith v. Heermance

18 How. Pr. 261 | N.Y. Sup. Ct. | 1859

Harris, Justice.

The regularity of the sale depends upon the question, whether the undertaking, executed as it was in November, operated to stay the proceedings upon the judgment from which an appeal had been taken in August. It is declared by the 348th section of the Code, that an appeal from a judgment, entered upon the direction of á single judge to the general term, does not stay the proceedings upon such judgment, unless security be given as upon an appeal to the court of appeals, or the court or a judge thereof shall so order. No such order was made. It is necessary, therefore, to inquire whether the appellant has, in this case, “given security as upon an appeal to the court of appeals.”

In all cases upon an appeal to the court of appeals, security must be given in the manner prescribed by the 334th section of the Code, for the payment of costs and damages. In case of á judgment of foreclosure, if the appellant would have proceedings stayed, he must also give the security prescribed by the 338th section. The security required by these two sections may be united in the same undertaking.

In this case, therefore, the judgment being for the foreclosure of a mortgage, the undertaking to operate, as a stay of proceedings, must be conformable to the provisions of both the 334th and the 338th sections of the Code. In form it is thus conformable. But it is also declared by the 340th section, that a copy of such undertaking must be served on the adverse party with the notice of appeal. Under this section it has been held by the court of appeals, that an undertaking which is filed after the notice of appeal does not stay the proceedings. (See New York Central Insurance Co. agt. Safford, 10 Howard, 344; Mills agt. Thursby, 11 How. 139; Cushman agt. Martin, 13 How. 402.) It is clear, therefore, that had this appeal been from the judgment of a general term to the court of appeals, the security would not have been sufficient to stay the proceedings, for the reason that the undertaking was not filed and served in time. As the same security is required, in order to stay proceedings, upon a judgment rendered upon the direction of a single judge, whep the appeal is to the general term, it seems to follow that the requirements of the 340th section of the Code are also applicable to such an appeal, and that, to render the appeal effectual as a stay of proceedings, a copy of the undertaking must be served with the notice of appeal. The plaintiffs’ proceedings were, therefore, regular. The service of a copy of the undertaking, after the notice of appeal had been served, did not of itself operate to stay their proceedings.

And yet it appears that when the appellant, assuming that the plaintiffs’ proceedings were not stayed, applied to the court for an Order to that effect, as he was authorized to do by the 348th section of the Code, the court, misapprehending the effect of what the appellant had done, denied the application, solely upon the ground that it was unnecessary, the plaintiffs’ proceedings being, as it was held, already stayed. It cannot be doubted, I think, that, but for this misapprehension, the plaintiffs’ proceedings would have been stayed until the determination of the appeal.

Under these circumstances, the proper disposition of the matter is to vacate the sale, and to direct that, upon payment of the costs of all proceedings subsequent to the judgment, to be taxed by the clerk of Rensselaer, and the costs of this motion, and serving upon the plaintiffs’ attorney a copy of the undertaking, which has been executed and filed, all further proceedings upon the judgment in this action be stayed until the determination of the appeal. An order will, therefore, be entered to this effect.