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Bulkeley v. Keteltas

5 N.Y. Super. Ct. 740 3 Sandf. 740 Court N.Y. Super. Ct. Decision date 1851-05-31 English

Contents

Majority

p. 740
Bulkeley v. Keteltas and others.

Headnote

The filing with the county clerk, of a transcript of the docket of a judgment entered in this court, and docketing the same with such clerk, is not a proceeding in this court which is stayed by an appeal from the judgment to the court of appeals perfected by giving security as prescribed by the code of procedure.
May 31, 1851.
This was a motion at the general term, before Oakley, Ch. J., and Dues and Campbell, J. J., decided with the concurrence of two other justices. Judgment had been rendered in favor of the plaintiff at the special term, and affirmed by the general term on appeal. The defendants then appealed to the court of appeals, and gave the requisite security, pursuant to sections 334, 335, and 339 of the code. The plaintiff, before receiving notice of the appeal, had procured from the clerk transcripts of the docket of the judgment, and after being served with such notice, filed them with the clerks of the city and county of Hew York and the county of Kings, and docketed the judgment in those, counties, (Code, § 282.) The appeal is still pending. The defendants moved that the plaintiff be compelled to vacate .and cancel-the dockets of the judgment so made after the appeal,
p. 741
on the ground that the plaintiff’s proceedings were stayed by the appeal before the filing of the transcripts.
O. II. Smith, for the defendants.
L. E. Bullcdey^ in person.

We cannot see any ground upon which we can deprive the plaintiff of the lien on the property of the defendants, which he has acquired by docketing his judgment. The law gives him the right to file a transcript of the judgment for his security. The transcript here was procured before the appeal was perfected, so as to operate as a stay of proceedings for any purpose. After the perfecting of the appeal, no proceeding in this court can be had. A proceeding in court, we understand to be an act which is done by the authority or direction of the court, express or implied. Such, for instance, as the issuing of an execution, or the delivery by the clerk of a transcript of the judgment' to the plaintiff. But when a transcript is once given to the plaintiff, the right to file it results from the law, and the filing of it cannot be considered as a “ proceeding in court,” or as a thing done by the authority of the court, within the meaning of the provision of the code on the subject of appeals.

Motion denied.