McIntyre v. Strong — 48 N.Y. Super. Ct. 299

Majority

p. 299

EWEN McINTYRE, Respondent, v. WILLIAM E. STRONG, Appellant.

Headnote

Appeal—deposit in lieu of undertaking, withdrawal of.

Where an appeal has been taken to the court of appeals from an affirmance of a judgment by the general term, the court has no power to order that the money deposited, in lieu of an undertaking on the appeal to the general term shall take the place of the undertaking or deposit required on appeal to the court of appeals.

The general rule is, that the deposit cannot be changed or withdrawn; but qumre, whether, in such case, where the judgment has been materially reduced by the general term, and, as reduced, affirmed, the court can order the return of a proportionate part of the deposit.

Before Sedgwick, Ch. J., and Freedman, J.

Decided June 5, 1882.

Plaintiff recovered a judgment against defendant 'October 7, 1881, for the sum of $1,766.28. Defendant appealed from this judgment to the general term, and in lieu of an undertaking to stay execution, defendant deposited the sum of $2,300. After argument, the ..general term reversed said judgment, unless plaintiff •should stipulate to reduce it to the sum of $1,149.24.

Plaintiff made the required stipulation, and the .judgment was, on February 13, 1882, so reduced, and, as so reduced, affirmed. From this last judgment defendant appealed to the court of appeals, and there

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upon made a motion that in view of the reduction of the judgment, he be permitted to withdraw from his said deposit the sum of $650, and that the balance, $1,650, be left on deposit in lieu of an undertaking to perfect defendant’s appeal to the court of appeals.

The motion was ‘denied on the ground that the court had no authority under the Code to grant it, and defendant appealed.

A. D. Pape, for appellant.

William J. Gibson, for respondent

The general rule undoubtedly is, that a voluntary deposit like the one in question, made to perfect an appeal from a judgment of the special term to the general term so as'to stay execution thereon, is in lieu of an undertaking required to be executed by at least two sureties ; that it can no more be changed or withdrawn than could the undertaking which it stands in place of; and that such an undertaking, when given, cannot be changed or withdrawn after the affirmance of the judgment by the general term because an appeal has been perfected to the court of appeals by the execution of an undertaking required for that' purpose. In every case falling within this rule, the appellant, to perfect the appeal to the court of appeals, must give a new undertaking (Code, § 1326), or make a new deposit of money in lieu thereof (§ 1306), and the court has no power to order that a sum of money already deposited in lieu of an undertaking on the appeal to the general term, shall take the place of the undertaking or deposit required on appeal to the court of appeals (Parsons v. Travis, 2 Duer, 659 ; S. C., 5 Id. 650).

It has been argued, however, with great force and plausibility, that the rule applies only when the original judgment has been affirmed in full by the general term, and that whenever it appears that the judgment

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procured by a plaintiff has been, in pursuance of the decision of the general term, materially reduced in amount, and that the reduction has been accepted by the plaintiff by stipulation, a different and exceptional case is presented, in which the court has power to grant relief, pro tanto, under section 1306.

Without stopping to determine the validity of this claim, for the language of section 1306 is by no means clear upon the point, and no other provision has been pointed out, it is sufficient for present purposes to say that the power, if it exists at all, should be exercised only when it clearly appears that the sum proposed to be left on deposit is, in view of all possible contingencies, fully sufficient to satisfy any claim the plaintiff may eventually have to enforce against it, in case the judgment of the court of appeals should be one of affirmance, inclusive of interest and the additional sum of $500, for costs in that court. For under section 1211, the judgment appealed from bears interest from the time of its entry, and under section 1326, it is necessary, in order to render the notice of appeal to the court of appeals effectual for any purpose, that the appellant should give a written undertaking to the effect that he will pay all costs and damages which may be awarded against him on the appeal, not exceeding $500.

In the case at bar, if the motion had been granted, less than one dollar would have remained to cover accruing interest, nor were any facts presented, upon which the amount of such interest could have .been determined with reasonable certainty.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

Sedgwick, Ch. J., concurred.