Waring v. Ayres — 12 Abb. Pr. 112

Majority

p. 112

WARING a. AYRES.

Supreme Court, First District;

Special Term, February, 1861.

Headnote

Security on Appeal.

Upon an appeal to the Court of Appeals from a judgment directing the execution of a conveyance or other instrument, the appellant, in order to secure a stay of proceedings, must not only execute and deposit the conveyance, under section 337 of the Code, but must also give the undertaking required by section 843.

Motion for a stay of proceedings pending an appeal.

—The judgment appealed from directs the execu

p. 113

tion and delivery of a conveyance, with costs, amounting to $223.17.

The deed has been executed and filed with the clerk, but no undertaking of any kind has been filed.

The plaintiff has issued an execution for the costs, notwithstanding the appeal, and the defendant now moves to stay proceedings thereon.

The appellant must comply with the terms required on an appeal to the Court of Appeals, in order to stay proceedings. An appeal is therefore not effectual, unless an undertaking be filed under section 334, as well as the deed under section 337. This has been neglected. The execution is therefore regular.

The appellant cannot deprive the plaintiff of the security obtained by his execution. Any relief which he obtains will be granted as a favor. He may have an order staying proceedings on the execution when he executes and files an approved undertaking, in conformity with sections 334 and 335.