Galusha v. Galusha — 13 N.Y. St. Rep. 85

Majority

p. 85

Sarah F. Galusha, App’lt, v. Norman H. Galusha, Resp’t.^[1]

(Court of Appeals,

Filed January 17, 1888.)

Headnote

Appeal—Stay oe execution—Practice—Code Civ. Pro., §8 1327 and 1330.

The judgment in an action for divorce dissolved the marriage between the parties, and among other things, decreed that the defendant should pay to the plaintiff as alimony a certain sum each year during her natural life, and that he should, within thirty days, give to plaintiff as security for the payment of such allowance a mortgage upon his real estate. Held, that the judgment was not for a sum of money only, and that its execution was not stayed on appeal by an undertaking given under Code Civil Procedure, section 1327; that it was not stayed until the mortgage directed in the judgment was executed and deposited with the clerk with whom the judgment was entered. Code Civ, Pro., § 1330.

Appeal from an order of the supreme court, general term, fifth department, affirming an order of the special term. The facts sufficiently appear in the opinion.

Nathaniel Foote, for app’t; Wm. H. Bowman, for resp’t.

he plaintiff commenced this action against the defendant to obtain an absolute divorce from him on the'ground of adultery. The action was tried and resulted in a judgment dissolving the marriage betwefen the parties, and, among other things, decreeing and adjudging that the defendant should pay to the plaintiff as an allowance for alimony the sum $3,750 a year from the 1st day of February, 1886] during her natural fife, in quarterly payments of _ $937.50 each, and that the defendant should, within thirty days from the date of the entry of the judgment give to her as security for the payment of such allowances a mortgage upon his real estate situated in this state, or otherwise, as might be directed or approved by a justice of the supreme court or by the county judge of Monroe county. From that judgment the defendant appealed to the general term, where the allowance of alimony was reduced to $3,000 a year, payable in equal quarterly payments of $750 each, and with the exception of another slight modification, not material here, the judgment as modified was affirmed.

The defendant then appealed to this court, and upon his application a justice of the supreme court, at chambers, made an order that he enter into an undertaking upon the appeal in the usual form in the sum of $10,000, conditioned to pay the installments of alimony in case this court should affirm the judgment, and that all proceedings in the action be stayed until the hearing and determination of the appeal.

Thereaftei the defendant, with two sureties, executed an undertaking conditioned that the appellant would pay all

p. 86

costs and damages which might be awarded against him on the appeal, not exceeding the sum of $500, and also pay-each installment of alimony which should become payable pending the appeal or the part thereof as to which the judgment should be affirmed, x not exceeding $10,000. Subsequently, upon an affidavit of the defendant’s attorneys, showing that that undertaking had been given and filed, and a copy thereof served upon plaintiff’s attorneys, an ex parte order was made at special term directing that all proceedings or the part of the respondent should be stayed until the determination of the appeal. Afterward, the plaintiffs attorney made a motion at special term that the two ex parte orders should be vacated, and that the defend•ant should be required to make immediate payment of all unpaid alimony due the plaintiff, according to the terms of the judgment, and that without further delay he be required to secure, according to the terms of the judgment, the payment of the permanent alimony or allowance during the tex-m of her natural life. The motion was granted, so far as to vacate the two ex parte orders, and denied as to the balance thereof, in the following language: “That the residue of the relief asked for upon said motion be denied on the ground that the undertaking executed on behalf of defendant, and approved as to its form, amount and sufficiency of the sureties, is sufficient to stay all proceedings on the part of the plaintiff, under the judgment herein, until the determination of the defendant’s appeal to the court of appeals.”

From this part of the order the plaintiff appealed to the general term, where the order was affirmed, and then she appealed to this court.

The claim of the defendant is that the judgment in this action is one for a sum of money or directing the payment of a sum of money, and that therefore, the execution of the judgment was stayed by the undertaking given under section 1327 of the Code. If the judgment simply directed the payment of a sum of money, the contention of the defendant would undoubtedly be right. But it not only required the defendant to pay the alimony in installments, but also required him to execute and deliver to the plaintiff a mortgage upon his real estate, as security for the payment of the alimony. Therefore, the undertaking which he gave falls far short of covering the whole judgment. It does not even secure the whole of the alimony. It secures only the installments which may fall due pending the appeal; and during the pendency of the appeal the defendant’s property may be lost or removed from the state, and any further payments of alimony may thus be defeated. We think, therefore, that this case falls fairly within the letter and

p. 87

spirit or section 1330 of the Code, which provides that “ if the appeal is taken from a judgment or order, directing the execution of a conveyance, or other instrument, it does not stay the execution of the judgment or order, until the instrument is executed and deposited with the clerk with whom the judgment or order is entered, to abide the direction of the appellate court.” That was a substantial part of this judgment, and perhaps the most valuable part of it to the plaintiff, which directed the execution of the mortgage to secure the alimony awarded, and we think, therefore, that in order to stay the execution of the judgment the defendant was required, not only to execute the undertaking which he filed, but also to execute and deposit with the clerk of the supreme court a mortgage as directed by the judgment.

The orders of the general and special terms, so far as appealed from, should, therefore, be reversed with costs to the plaintiff in the supreme court and in this court, and the case should be remanded to the special term that it may take final action upon the plaintiff’s motion.

All concur, except Bapallo, J., absent.