New York Superior Court ;Special Term, October, 1861.Headnote
Security tin Appeal ebom am Obdeb.—Stay oe Proceedings on Appeal.Section 338 of the Code does not authorize a judge to fix the sum in which an undertaking shall be given, to operate as stay of proceedings on an appeal from an order made in a summary proceeding taken in an action after judgment.
It seems, that when an appeal from an order has been perfected, if the" appellant desire a stay, of proceedings pending the appeal, the' court may-, in the exercise of its discretion, grant a stay upon such terms as may be just. , " .
It seems, that where an undertaking is required as a condition of granting a stay of proceedings pending an appeal from an order, such undertaking will be an available security to the respondent if the order be affirmed.
-■ Motion to" vacate an order, fixing the amount'of security to be given on appeal to the Court of Appeals.
In ■ this action, upon supplementary ■ proceedings,. William Emerson had.been appointed by the county judge-of Richmond county, receiver of the equitable interests and- .property of the .defendant, andias such receiver had.been directed by an order ■ Of the county, judge; modified on appeal by- the general term of -the Superior Court, to sell the interest which the defendant had in certain premises in Richmond county, at a period mentioned in the order.- From the order made at the general term of this coiirt, the defendant appealed to the Court of Appeals. The' defendant then applied to Mr.- Justice Hoffman, at chambers, On-! .notice ■ to the defendant, to fix the- amount ;to be -inserted in the undertaking, in order to stay plaintiff’s proceedings pending the appeal. ■ After hearing counsel, the justice fixed the amount "at twenty-two- hundred dollars. Subsequently the plaintiff, -pursuant to leave obtained, made tKe present motion to vacate the order .made by Mr. Justice .Hoffman.
Horton H. Burlock, for the plaintiff.
William W. Van Wagenen, for the defendant.
—The only case in which section 338 of the Code authorizes a judge to fix the sum in which an undertaking shall be given, to operate as a stay in ease of an appeal, is an appeal from a judgment, and from such a judgment as that section describes. The appeal in question is not from a judgment, but from an order made on a motion in a summary proceeding taken in the, action after judgment. The distinction between appeals from judgments, and orders, is recognized in sections 11, 323, 330, 321, and 334.
Section 334 requires the undertaking therein mentioned to be given as well on appeal from an order, as from a judgment.
Sections 33A-339 speak only of appeals from judgments.
I think that section 338 does not authorize a judge of the court to entertain an application under it when the appeal is from an order. When an appeal from an order has been taken and perfected, if the appellant desires a stay of proceedings pending the appeal, the court may probably, in the exercise of its discretion, grant a stay upon such terms as may be just.
If it be imposed as- a condition to granting a stay, that an undertaking be given to comply with such condition, it will be an available security to the respondent, if the order be affirmed.
This motion probably should have been heard before Judge Hoffman. I have conferred with him before deciding the motion. The order of July 17, 1861, must be vacated.
Motion granted.