Jesup v. Carnegie — 45 N.Y. Super. Ct. 310

Majority

p. 310

MORRIS K. JESUP, et al., Plaintiffs and Respondents, v. ANDREW CARNEGIE, et al., Defendants and Appellants.

Headnote

Security on appeal.—Waiver.

The defendants, pending this appeal, deposited, under stipulation, bonds to an amount less than that specified by the Code as security in such cases. Held, that they thereby waived all right to the exercise of the discretion of the court, in limiting or reducing the amount of security.

p. 311

Before Sedgwick and Van Vorst, JJ.

Decided May 16, 1879.

Appeal from order, denying motion made, by four defendants (joint judgment having been rendered against them, with others), to limit amount of security to be given upon their appeal.

Lewis Sanders, for appellant.

A. W. Evarts, for respondent.

The respondents move upon affidavits to dismiss this appeal. The' affidavits show that while this appeal was pending, all the defendants were permitted by stipulation to deposit and did deposit bonds to an amount less than the amount of security specified by the Code. By so doing, these defendants have finally disposed of the subject-matter of appeal, and have waived any right they might have had, to claim that the discretion of the court should be exercised on their behalf, by reducing or limiting the amount of security.

The motion to dismiss appeal is granted, with $10 costs and disbursements, if any, to be taxed.