Blake & Johnson v. Lyon & Fellows Manufacturing Co.

Headnote

Where the sureties to au undertaking upon appeal to this court from a final judgment fail to justify, the appellant may give a new undertaking at any time within the year allowed for appeal, and when given' the appeal becomes effectual; and if the respondent fails to except to the sureties within the time allowed, the new undertaking becomes perfect for the purposes of the appeal. (New Code, §§ 1325, 1326, 1327.)

This was a motion to dismiss an appeal. The appeal was from a final judgment of General Term. An undertaking was given and copy thereof with notice of filing was served with notice of appeal. The sureties were excepted to and failed to justify. Within the year however allowed for appeal, a new undertaking was given, and copy with notice served, the sureties to the new undertaking were not excepted to. Held, as above.