Majority
p. 120FORBES a. OAKS. Supreme Court, First District; Special Term, September, 1855.
Headnote
Secukity ON Appeal. — Stay of Proceedings.The giving security on an appeal from an order pursuant to section 349 of the Code, does not stay the proceedings of the other party.
A stay, when one is desired, must be obtained from a judge.
Motion for an order staying plaintiffs’ proceedings.
The plaintiffs obtained at special term an order directing a reference to take and state an account between the parties, late partners. The defendants appealed from this order to the general term. They deposited $250 with the clerk as security upon this appeal.
The defendants now moved, upon an affidavit that plaintiffs were proceeding under the order of reference, notwithstanding the appeal, for an order staying proceedings on the part of the plaintiffs.
A. Clarke, for the motion.
J. P. Hoffman, opposed.
The general impression is, that no security is necessary on appeals from orders; the words “in like manner” in section 349, being synonymous with-“also,” besides signifying the branches of the court from which and to which the appeal
p. 121
lies, having no reference to security. If, therefore, no security is provided for, that appeal does not per se stay proceedings merely by filing security as in section 348, which expressly states that giving security shall have that effect.
The stay in my opinion must in all cases be obtained by special direction of a judge when the appeal is pursuant to section 349.
I have a discretion to grant a stay in this case. I do not, however, consider it a proper case for a stay. It would be essential, sooner or later, to take an account, and the reference may as well proceed now for that purpose as at any future period.
Motion denied, with ten dollars costs to plaintiff, to abide event.