In re the Accounting of Beckwith — 22 N.Y. Sup. Ct. 326

Majority

p. 326

In the Matter of the Accounting of ALPHEUS C. BECKWITH, as Assignee, etc.

Headnote

Deoree on final accounting of assignee — -appeal from — the security required by section 1341 of the Code of Civil Procedure must be given.

An appeal from a decree of a county Judge, made upon the final accounting of an assignee for the benefit of creditors, is subject to the rules governing appeals from final judgments rendered by the County Court under section 1340 of the Code of Civil Procedure, and to be effectual the security required by section 1341 must be given.

p. 327

Motion to dismiss an appeal from the decree of the county judge of Onondaga county, on the final accounting of Alpheus C. Beck-with, as assignee of Harlow A. Pierce and Thomas J. Haegerty, insolvent debtors, on the ground that no security had been given on the appeal.

Beardsley, Goolcingham & Burdiclc, for motion.

Risley, iSloddart & Matteson, opposed.

We think the decree rendered by the county judge in this case is in the nature of a final judgment, and is not an interlocutory order. (Chap. 466, of Laws of 1877, §20, subd. 4, 5 and 7.) The statute evidently contemplates and provides for a final determination by the county judge of the matters committed to his cognizance. The twenty-fifth section of the said act provides that any proceedings under the act “ shall be deemed for all purposes, including a review by appeal or otherwise, to be a proceeding had in the court as a court of general jurisdiction,” and the section declares that the couz't may exercise the powers of a court of equity in reference to any matters involved therein.

Section 22 of the act declares that all orders or decrees in these proceedings shall have the same force and effect, and may be entered, docketed and enforced, and appealed from, the same as like orders or decrees of the County Court in an original action brought therein.

We are, therefore, of the opinion that the appeal from the adjudication of the county judge in this case is to bo governed by the rules governing an appeal from a final judgment rendered by the County Court under section 1340 of the Code of Civil Procedure, and that in order to render such appeal effectual, the appellant should have given such security as is provided for in section 1341; consequently, that the appellant, not having furnished such security, the appeal is irregular, and should be dismissed. But, as this is a new question, we will give the appellant leave to remedy .the defect, if he desires to do so.

Appeal dismissed, unless the appellant give to the respondent

p. 328

the security required under section 1341 of the Code of Civil Procedure, to stay execution, and to perfect the appeal within ten days from the service of a copy of this order, in which case tho appeal is to stand as originally taken ; the appellant to pay the costs, $10, of this motion.

Present — Talcott, P. J., Smith and Hardin, JJ.

Ordered accordingly.