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Lane v. Humbert

9 N.Y.S. 744 Court N.Y.C.P. Decision date 1890-05-07 English

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p. 744
Lane et al. v. Humbert.
(Common Pleas of New York City and County, General Term.
May 7, 1890.)

Headnote

Appeal—Practice—Deposit in Lieu op Bond.
Where appellant makes a deposit instead of giving an undertaking with security, failure to deposit a sum equal to the amount for which the undertaking was required to be given, as provided by Code Civil Proc. N. Y. § 1306, is a mere irregularity which may be cuffed.
Motion to dismiss appeal.
Action by George W. Lane and others against Elias O. Humbert. There was a judgment for plaintiffs, and defendant appeals. Respondents now move to dismiss the appeal for want of prosecution and for irregularity.
Argued before Larremore, O. J., and Daly and Bischoff, JJ.
P. C. Talman, for appellant. Hascall, Clarke & Vandorpoel, for respondents.

Section 1326 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 $500. This the appellant did not do, but, instead, procured an order from a judge of the city court staying proceedings on the part of the respondents pending the appeal to this court upon the deposit of $100 with the clerk of that court in lieu of the required undertaking. Section 1306 of the Code provides that, where a deposit of

p. 745
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 loches 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. All concur.