Samuels v. Samuels — 17 N.Y. St. Rep. 680

Majority

p. 680

Minna C. Samuels, App’lt, v. Alexander Samuels, Resp’t.^[1]

(Supreme Court, General Term, Second Department,

Filed June 25, 1888.)

Headnote

Appeal—Judgment por payment oe alimony in monthly instalments— Giving undertaking pursuant to Code Crv. Pro., § 1327, stays all. PROCEEDINGS.

The plaintiff recovered against defendant a judgment of separation from bed and board, the decree containing a provision that defendant pay plaintiff a certain sum each month during her natural life. This judgment being affirmed on appeal by the general term, the defendant appealed to the court of appeals. The court made an order fixing the amount of the undertaking to be given to secure the payment of such alimony as might, accrue during the pendency of the appeal, and providing that upon the-giving thereof plaintiff’s proceedings be stayed meanwhile. Held, that the-order pendente lite for the payment of alimony was merged in the judgment. That all of plaintiff's proceedings (including those to enforce the payment of alimony) were stayed under Code Civ. Pro., § 1327, until the hearing and determination of the appeal.

Appeal from an order of a justice of the supreme court fixing the amount of defendant’s undertaking, and staying plaintiff’s proceedings upon the judgment herein.

Cooke & Salmon, for app’lt; Isaac S. Catlin, for resp’t,

On the 2d day of June, 1887, plaintiff recovered against defendant a judgment of separation from bed and board. The decree contained the following: provision :

“That Alexander R. Samuels, the defendant, pay toMinna 0. Samuels, the plaintiff, the sum of twenty dollars-monthly, from the 8th day of March, 1887, during her natural life, as a suitable allowance to the said Minna C.. Samuels, the plaintiff, for her support; and that said sum. be paid in each and every month to the said plaintiff personally, or to her attorneys of record in this action, during her natural life.”

This judgment was affirmed on appeal by the general term. 14 N. Y. State Rep., 927 ,

Defendant then appealed to the court of appeals, gave an undertaking to secure the payment of such alimony as might accrue during the pendency of the appeal and stayed plaintiff’s proceedings, meanwhile.

p. 681

From this order the present appeal is taken.

The only question is whether section 1327 of the Code of Civil Procedure applies to the case.

So much of that section as is material to the present inquiry is as follows:

“Where the judgment or order directs the payment of money in fixed installments, the undertaking must be to the effect that the appellant will pay each installment which becomes payable pending the appeal, or the part thereof as to which the judgment or order is affirmed, not exceeding a sum specified in the undertaking, which must be fixed by a judge of the court below.”

The order pendente lite for the payment of alimony was merged in the judgment which was, among other things,, for the payment of money by installments.

The respondent seeks to have the judgment enforced as though no appeal had been taken.

The language of section 1327 is as plain as it could be made to effectuate an intention to stay such a judgment until the controversy is ended by a decision in the court of appeals.

The argument that respondent may be reduced to destitution or become a public charge can have no force, as the stay prevents no one but the plaintiff from resorting to such remedies, as the law affords to make the defendant support his wife.

This is a private suit between the plaintiff and defendant, and a duly perfected appeal stays all proceedings under the judgment until the hearing and determination of the appeal.

The order must be affirmed.

Barnard P. J., and Dykman, J., concur.