Livingston v. Roberts — 12 N.Y. Super. Ct. 680

Majority

p. 680

Livingston v. Roberts.

Headnote

Notice of a motion, under the last sentence of section 282 of the Code, need not be given to the appellant’s sureties; it is enough that it is given to the owner of the judgment appealed from.

At Special Term,

September 26, 1856.

The plaintiff having obtained a judgment, the defendant appealed to the General Term, and gave an undertaking which operates as a stay of proceedings. He now moves, under section 282 of the Code, for an order, that the clerk enter on the docket of the judgment, that it is “secured on appeal.” Notice of the motion has been given to the owner of the judgment. The plaintiff objects that no notice has been given to the sureties in the undertaking.

The Code does not require notice to the sureties, but only to the owner of the judgment. It is true the Code declares the court may make this order on such terms as it shall see fit. These terms, it was doubtless supposed, would be such as would be for the benefit of the owner of the judgment. Sureties may fail or become embarrassed before such a motion is made. When that is found to be the case, the court would not grant the order without further security was given. The legislature has not seen fit to require notice to be given to the sureties. As the owner of the judgment suggests no reason why the motiop should not be granted, except that no notice has been given to the sureties, the motion is granted.