By the Goiurt
-Berry, J.
The undertaking approved January 9, 1865, was sufficient under Ohap. 22, page 131, laws 1861, which must control in this case. The appeal > therefore, from the order striking out portions of the answer operated “ as a supersedeas, and to stay all proceedings, and to save all rights in the samé manner as if no order had been made by the court below.” Judgment affirming the order *163appealed from was entered in the Supreme Court on the 7th day of November, 1865, and on the same day a mandate transmitted to and filed in the district court. On the 29th day of October, notice of trial at the general term of the district court to be held November 9th, was served on respondent’s attorney. Under this state of facts, as remarked by the learned Judge below, “ at the time of the service of the notice of trial, there were no issues in the action in this court,” (the district court) “that could be tried; for, whether the appeal removed the whole case or not, it clearly carried up to the Supreme Court the pleadings upon which the decision of the court was founded.” The notice of trial was therefore premature and unauthorized, and the respondent (who was defendant below) not appearing at the trial, such trial was irregular: The other matters as to diligence, &c., urged upon the application to set aside the judgment, were addressed to the sound discretion of the court below, and we see no occasion for disturbing its action.
Order affirmed.