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Webster v. Stevens

12 N.Y. Super. Ct. 682 5 Duer 682 Court At Special Term, Decision date 1856-09-26 English

Delivered by Bosworth, J.

Contents

Majority

p. 682
Webster v. Stevens.

Headnote

On appeal, the respondent may except to the sureties in the undertaking, within ten days after it is filed, though more than ten days have elapsed after a copy of it, and the notice of appeal, were served.
At Special Term,
September 26, 1856.
The plaintiff served on the 18th of August, on the defendant, a notice of appeal to the Court of Appeals, and a copy of the undertaking executed to effect a stay of proceedings. The undertaking was not filed until the 13th of September, and on the 16th defendant excepted to the sureties in the undertaking. Plaintiff now moves that the notice of exception “be vacated and set aside,” or that the term of justifying be extended.-
M. K. Burke, for plaintiff.
p. 683
Henry Day, for defendant.

To render an appeal effectual for any purpose, the appellant must execute an undertaking (Code, § 334) to pay costs; and to effect a stay it must provide for paying the judgment, (§ 335.) The undertaking is of no effect unless a copy of it and of the affidavits of the sureties be served, (§§ 340, 341.) It must be filed with the clerk, with whom the judgment is entered, (§ 343.) The Code does not in terms say it must be filed, before the undertaking can be of any effect. It is quite clear that until it is filed, the respondent has no security that one exists which can be made available to him. It may he destroyed, and he be unable to prove that it ever existed. I think it a fair construction. to hold, that to make a certain and perfect delivery of it to the use of the respondent, it should be filed. Prior to the Code, a plaintiff in error was required to file the bond at the time of serving the writ on the clerk. (2 R. S., 597, § 32.) In the Court of Chancery, the appellant-was required to file his bond and notice of appeal within the time allowed to appeal. (1 Barb. Ch. Pr., 401 and 4091)

Under the Code, no approval of the bond, not even an ex parte one is required, unless exception’ is taken to the sureties. There is no hardship in requiring an appellant to file his undertaking with his notice of appeal. The defendant cannot be certain that there is an undertaking to which he can resort until it is filed. I think his exception was taken in time. But an order may be entered, extending the time to justify, ten days.