Majority
Headnote
A deposit of $100 in lieu of the undertaking in the sum of $500 required by section 1326 of the Code of Civil Procedure on appeal from the City Court, is inadequate, as section 1306 requires that a deposit in lieu of an undertaking shall be equal to the amount for which the undertaking is required to be given ; but in such case opportunity will be given appellant to perfect the appeal.[Present, Larremore, Ch. J., and J. F. Daly and Bischoff, JJ.]—Section 1826 of the Code provides that, to render an appeal effectual for any purpose, the appellant must give a written undertaking to the effect that he will pay all costs and damages which will be awarded against him on- the appeal not exceeding five hundred dollars. This the appellant did not do, but instead procured an order from a judge of the City Court staying all proceedings on the part of the respondents pending the appeal to this court upon the deposit of one hundred dollars with the clerk of that court in lieu of the required undertaking. Section 1306 of the Code provides that where a deposit of money is made instead of security, such deposit must be in a sum equal to the amount for which the undertaking is required to be given. Therefore the deposit is inadequate, and the appellant has failed in that respect to perfect his appeal as required by law. But this is an irregularity which may be cured.
The appellant also failed to serve the papers required within the time prescribed by the rules and practice of this court, although we think his counsel, in his affidavit, has sufficiently excused his laches in this respect.
The motion to dismiss the appeal will therefore be denied, provided the appellant applies at Special Term on or before the 9th instant for leave to perfect his appeal as required by law, and stipulates to argue the said appeal at this General Term on or before the 15th instant; otherwise the appeal will be dismissed, with costs. Ten dollars costs of this motion to the respondents to abide the event.
Order accordingly.