Stephens v. Humphries — 49 N.Y. St. Rep. 782

Majority

p. 782

Melvin Stephens, Resp’t, v. Robert Lewis Humphries, Impl’d, App’lt.

(Supreme Court, General Term, First Department,

Filed November 18, 1892.)

Headnote

Appeal—Foreclosure—Undertaking—Code Civ. Pro., § 1331.

An appeal from an order, made long after the judgment of _ foreclosure, which was finally affirmed, directing a resale of the premises is not within the provisions of § 1331 of the Code, requiring the amount of the undertaking on appeal to be fixed by the court.

Appeal from order of special term, denying motion by defendant to fix the amount of the undertaking under § 1331 of the Code, and to stay plaintiff’s sale of the mortgaged premises.

John K. Van Ness, for app’lt; Smith & While, for resp’t

We agree with the learned counsel for the respondent that § 1331 of the Code of Civil Procedure does not ■ apply to this case. The appeal is not from a judgment directing a foreclosure and sale of real property. The security upon the appeal from the judgment has already been fixed on the appeal to the court of appeals, and the judgment has been affirmed by that court. 45 St. Rep. 929 . This is an appeal from the order of the special term, denying a motion made by the appellant that the court fix the security to be given on a former appeal taken by him from a portion of the order directing a resale of the premises mentioned in the judgment, and requiring the appellant to pay certain expenses therein mentioned. That order was made long after the entry of the judgment, which was finally affirmed by the court of appeals, and the appeal does not, therefore, fall within either of the provisions of § 1331. We are, therefore, of the opinion that the order below should be affirmed, with costs and disbursements.

Van Brunt, P. J., and O’Brien, J., concur.