Hyperlawhypertext legal database Hallenbeck v. Company E, Thirteenth Regiment, New York State National Guard 24 N.Y. Sup. Ct. 234

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Hallenbeck v. Company E, Thirteenth Regiment, New York State National Guard

24 N.Y. Sup. Ct. 234 Court N.Y. Gen. Term English

Judges Barnard, P. J., concurred.; Present — Barnard, P. J., Gilbert and Dykman, JJ.

Delivered by Dykman, J.:

Contents

Majority

p. 234
JARRET C. HALLENBECK, Respondent, v. COMPANY E, THIRTEENTH REGIMENT, NEW YORK STATE NATIONAL GUARD, Appellant.

Headnote

Appeal to County Court — when no imdei-takingt required of the appellant.
"Where a defendant, against whom a judgment for more than fifty dollars has been recovered in a justice’s court, appeals to the County Court upon questions of law only, no undertaking need be given.
An undertaking is only required where a new trial is to be had in the County Court, or a stay of execution on the judgment is desired.
Appeal from an order of the County Court of Kings county, dismissing an appeal from a judgment rendered by a justice of the peace of the city of Brooklyn, against the defendant for ninety-seven dollars and six cents.
Henry J. Oresta, for the appellant.
John P. Troy, for the respondent.

The plaintiff obtained a judgment against the defendant in a court of a justice of the peace for more than fifty dollars, and the defendant apjiealed to the County Court from the judgment, and stated in the notice of appeal that such appeal was taken upon questions of law only. No undertaking was given and a motion

p. 235
was made in the County Court to dismiss the appeal for that reason, which was granted, and now the defendant appeals from that order.

By section 352 of the Code of Procedure no new trial could be had in the appellate court on this appeal. Section 355 of the Code provides that when, by the terms of section 352, the appellant is entitled to a new trial in the appellate court, he shall, at the time of taking his appeal, give security as provided in the next section ; and in all other cases he shall give security if he desires a stay of execution of the judgment. In this action, therefore, as the appellant was not entitled to a new trial in the appellate court security was not necessary for the perfection, of the appeal, and was only necessary to stay the execution of the judgment.

The order dismissing the appeal must therefore be reversed* with ten dollars costs and disbursements.

Barnard, P. J., concurred.

Present — Barnard, P. J., Gilbert and Dykman, JJ.

Order reversed, with costs and disbursements.