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Phelps v. First Reformed Protestant Dutch Church of Fort Plain

3 Denio 264 Court N.Y. Sup. Ct. English

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p. 264
Phelps vs. The First Reformed Protestant Dutch Church of Fort Plain.

Headnote

The bond required on the allowance of a writ of error can in no case be less than $150, though there be an order to stay execution, and though the judgment be less than half that amount.
Bail in error. Phelps brought a writ of error to the Montgomery C. P., to reverse a judgment which the church had recovered against him of $20. He gave bond in the penalty of $250, and had an order staying proceedings on the judgment. The defendants in error excepted to the sureties. The plaintiff thereupon executed a new bond in the penalty of $50, with new sureties, who justified. A copy of the affidavit of justification was served on the defendants’ attorney. The defendants then applied to a judge, and obtained an order superseding the writ of error.
p. 265
J. H. Cook, for the plaintiff in error,
moved to set aside the order of the judge superseding the writ of error for irregularity. He insisted-that as the penalty of the new bond was more than double the amount of the judgment, there was a full compliance with the statute. (2 R. S. 595, §27.)
D. G. Lobdell, for the defendants in error.

Although the new bond may be within the letter of the statute, I cannot think it within the intention of the lawmakers. When the writ of error is returnable in this court, and is not intended to operate as a stay of execution, the penalty must be one hundred and fifty dollars. But when the writ is intended to operate ás a stay, the penalty of the bond must be “ at least double the sum recovered by such judgment.” It is difficult to suppose that the legislature intended to require bail in all cases to one hundred and fifty dollars, although no delay is asked; and yet that delay may be had in many cases, on giving bail to a. much smaller amount. In this instance the judgment is twenty dollars. But we have had a case before us on error, where the recovery in the court below was two cents. If the counsel for the plaintiff in error is right, the penalty of the error bond in that case might have been four cents. Upon a reasonable construction of the statute, I think the penalty of the error bond can never be less than one hundred and fifty dollars.

Jewett J. dissented.

Motion denied.