In re Ciancimino — 26 Abb. N. Cas. 48

Majority

p. 48

MATTER OF CIANCIMINO.

N. Y. Supreme Court, First District, Chambers ;

November, 1890.

Headnote

Undertaking ; appealfrom final order in special proceeding ; form ; stay of execution.] Under Code Civ. Pro. §§ 1327, 1351 and 1360, an undertaking given upon appeal from a final order in a special proceeding to the general term denying the prayer of the-petitioner with costs, does not operate as a stay of execution, unless in the form prescribed in section 1327, and unless the court, in or from which the appeal was taken or a judge thereof, makes an order directing a stay.

Justification of Sureties.

Petition by Elizabeth G. Ciancimino to vacate and set' aside certain elections of the Ciancimino towing- and transportation company, and for other relief.

The order having been entered denying the prayer of the petitioner, with costs, and the costs having been adjusted, judgment and execution therefor was issued.. against the petitioner. The petitioner appealed from the order, and served a certified copy of an undertaking upon the sheriff to stay the execution. The-respondents excepted to the undertaking upon the ground that it did not conform to the requirements of the code,^[1] and to the sufficiency of the sureties therein. The petitioner then gave notice of justification of sureties. ,

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The condition of the undertaking excepted to was that the “ appellant will pay all costs and disbursements which have been or may be awarded against said appellant if such order and judgment shall be affirmed or the appeal be dismissed, together with all costs or damages rvhich may be awarded against the appellant therein, not exceeding $500.”

Richard J. Morrisson, for the appellant.

Charles C. Protheroe (A. P. & W. Man, Attorneys), for the respondents.

The appeal herein is from a final order in a special proceeding which awarded costs to the objecting respondents. Costs were taxed and a postea or judgment added, and judgment was so entered against the petitioner, and an execution has been issued thereon.

Against approving the undertaking given upon appeal to stay the execution two objections are urged. First, that the sureties are insufficient, and second, that the form of the undertaking is not as prescribed by the Code. The first objection is untenable, the sureties upon examination having sufficiently justified. The remaining question is as to the proper form of undertaking to stay execution upon appeal to the general term. Section 1360 of the Code provides that the provisions (title 4, chap. 12) relating to perfecting an appeal from an order shall apply. We are thus referred to section 1351 of the Code, which provides that “ security is not required to perfect the appeal, but . . . the appeal does not stay the execution of the judgment or order appealed from unless the court in or from which the appeal is taken, or a judge thereof, makes an order directing such a stay . . . if security is given ... as a condition of granting

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the order, the provisions of title 2, chap. 12, shall apply.” We are thus again referred to section 1327 of the Code, which is the portion of title 2, chap. 12,, relating to the question as to the form of undertaking.

It is evident, therefore, that an undertaking when required to be given for the purpose of staying an execution upon an appeal to the general term or Court of Appeals, must be as prescribed by section 1327, unless otherwise specially prescribed by law. The undertaking in this case submitted, it is conceded, does not conform to this section, and for this reason the objections thereto must be sustained. It would seem to be the proper practice, upon an appeal taken from an order of ■ a judge to the general term, where it is sought to stay the execution, to make the application to the court in or from which the appeal is taken, or a judge thereof for such stay, upon terms as provided by section 1351 of the Code. For the reasons herein given the undertaking is not approved.