Majority
p. 152Marcus M. Beeman, Respondent, v. George A. Banta, Appellant. Court of Appeals, March 12, 1889.
Headnote
See 45 Hun, 593 , mem.Appeal. Undertaking.—On a motion to compel the appellant to file a new undertaking with sufficient sureties as required by law, on the ground that one of the sureties to the original undertaking had become insolvent, the appellant, who had given security to stay execution by filing an undertaking securing the judgment, will not be allowed to substitute therefor an undertaking for costs only.
Motion to compel the defendant to file a new undertaking with sufficient sureties as required by law, on the ground that one of the sureties to the original undertaking had become insolvent, or in case of failure the appeal be dismissed. The appellant asked that, in case the court decided to require a new undertaking, it be simply for costs.
William G. Tracy, for motion.
John H. Parsons, opposed.
We refuse the request of the defendant to be allowed to file an undertaking for costs only, because by virtue of his original undertaking the plaintiff has been stayed from enforcing his judgment ever since the appeal to this court was taken.
The appellant ought not to have the benefit of such stay up to the present time, and then by the filing of an undertaking for costs only, retain his appeal and leave the plaintiff in a possibly much worse condition towards obtaining the fruits of his judgment than he would have been in had the right of enforcement continued from the time of its entry.
All concur.