Hoppock v. Cottrell — 13 How. Pr. 461

Majority

p. 461

SUPREME COURT.

Ely Hoppock agt. Charles Cottrell.

Headnote

On appeal from a single judge to the general term, the sureties in the undertaking on the appeal, in order to stay execution, must justify in double the amount of the judgment and costs, ($250.)

New- York Special Term,

Jan., 1857.

This was a motion, that the judgment in this action be entered upon the clerk’s'docket as “secured upon appeal,” according to § 282 of the Code.

George D. Kellogg, for motion.

R. M. Harrington, opposed.

In appeals from a single judge to the general term, an appeal does not stay'proceedings unless security be given as upon an appeal to the court of appeals. (§348.)

In Newton agt. Harris, (1 Code, R. N. S. p. 191,) it is decided, in order to have this effect in an appeal to the court of appeals, the sureties must justify in double the amount (|250) required to be inserted in the undertaking, to cover the costs of the appeal.

The undertaking in this case is deficient in this very respect; the sureties justify only in double the amount of the judgment, without reference at all to the security for costs. It cannot, therefore, properly stay proceedings; and, by § 282, this motion cannot be granted unless the undertaking is sufficient to stay the execution.

Motion denied, with $5 costs.