Majority
p. 771Mary C. Cambreling et al., Pl’ffs, v. Euphemia C. Purton, App’lt. M. Lippman, Resp’t. (Supreme Court, General Term, First Department, Filed October 16, 1891.)
Headnote
Reference—Undertaking.The special term has no power to order a reference to ascertain damages sustained by reason of an undertaking given to secure a stay pending an appeal, but the remedy is by action on the undertaking.
Appeal from order denying a reference to ascertain damages on an undertaking.
The undertaking in question was given to stay proceedings pending an appeal.
W. P. Quin, for app’lt; T. McAdam, for resp’t.
This undertaking was not given upon an injunction and no stipulation was contained in it for a reference to ascertain the extent of the liability of the sureties. The special term was accordingly right in holding that it had no power to order such reference, but' that the remedy was by an action on the undertaking.
The order for that reason should be affirmed, with ten dollars costs and disbursements.
Van Brunt, P. J., Daniels and Ingraham, JJ., concur.