Majority
p. 36Charles Werner et al., App’lts, v. Mina G. Tuch et al., Resp’ts.[1] (Court of Appeals, Filed January 31, 1890.)
Headnote
Mobtgage—Robeclosube—Code Crv. Pbo., § 1331.An undertaking on appeal in a foreclosure case against waste and for value of use and occupation operates as a stay of proceedings without a covenant to pay a deficiency.
Appeal from a judgment of the supreme court, general term, fourth department, affirming judgment for appellant entered m Chemung county, June 2, 1888, upon decision of special term.
Reynolds, Stanchfield & Collins, for app’lts; Simpson & Werner, for resp’ts.
The construction of § 1331 of the Code of Civil Procedure, adopted in Grow v. Garlock, 29 Hun, 598 , which on an appeal in foreclosure cases holds that an undertaking against waste and for the value of use and occupation operates as a stay of proceedings without a covenant to pay a deficiency, and that the appellant may choose to give either form of the undertaking, with equal effect, is approved for the reasons there given. The order is, therefore, affirmed, with costs.
All concur.