p. 745Matter of the Estate of David Witmark.(Surrogate's Court, New York County,Headnote
1 Surrogate’s courts—Appeal from decree of—When appeal is perfected—Code Civ. Pro., §§ 2577, 2578.It is provided by Code Civil Procedure, section 2577, to render a notice of appeal from a decree of a surrogate’s court effectual for any purpose, except in a case specified in the next section, or where it is specially prescribed by law, that security is not necessary to perfect the appeal; the appellant must give a written undertaking as therein directed. Held, that the undertaking provided for by Code Civil Procedure, section 2578, would not stay the execution of a decree appealed from, unless the appeal had been perfected by giving the undertaking specified in section 2577.
2. Same — Discretionary power of surrogate to permit a party to PERFECT APPEAL—CODE OlV. PRO., §§ 2275, 1303.
The surrogate is empowered by Code Civil Procedure, sections 2275 and 1303, to permit a party having served a notice of appeal from a decree to perfect his appeal by giving the undertaking provided for by section 2577.
3. Same—Appeal from part of decree does not stay execution of OTHER PART FROM WHICH NO APPEAL IS TAKEN.
Where a part only of a decree is appealed from, such part as is not appealed from is unaffected, and may be enforced.
Benno Loewy, for adm’x; Nathan Lewis, for Marcus Witmark.
—The undertaking, filed by the appellant, was intended, no doubt, to be an undertaking such as is required by section 2578 of the Code of Civil Procedure. The undertaking mentioned in this section, does not stay the execution of a decree appealed from, unless the appeal has been perfected by the giving of the undertaking specified in section 2577. To render a notice of appeal effectual for any purpose, it is necessary to furnish this last mentioned undertaking. Matter of Burgess Cluff, Daily Reg., Feb. 4, ’87.
p. 746No question is made that the notice
of appeal herein was seasonably given, and nothing appears in the papers submitted, to cast suspicion upon the good faith of the efforts of the appellants to effectuate her appeal. I shall exercise the power_ conferred on me in the premises by the statute, and permit him to now give the necessary security. Sections
2575 and 1303, Code Civ. Pro.
Should he avail himself of this exercise of discretion, the effect will be a stay of all proceedings for the enforcement of such part of the decree herein as vthe notice of appeal refers to. The right to enforce such part of the decree as is not appealed from, is unaffected by the appeal attempted to be taken. Sections 2584 and 1310 Code Civ. Pro.
Unless, therefore, the respondent shall, within five days from the service of a copy of this order upon him, pay to the petitioner the amount with which he is charged by the decree,_ and respecting which no appeal has been taken, I shall direct the issuance of a warrant for his commitment.