Dwyer v. Rorke

Per Curiam: The rights of the parties to the fund in court are settled by the judgment in this action, and so long as that judgment stands there is no doubt that the plaintiff is the owner of more than $10,000 of that fund. That judgment, although appealed from, is presumed to be correct, and unless proceedings are stayed in the action pending the appeal, the plaintiff is entitled to his share of the money awarded him by that judgment. The undertaking which was given in this action is not sufficient to stay the proceedings of the plaintiff for the purpose of obtaining the payment of that money. (Stein-back v. Diepenbrock, 5 App. Div. 208.) Until those proceedings were stayed, the plaintiff was entitled to have the money paid over to him within the rule laid down in that case. The order made in this case, therefore, was erroneous and must be reversed, with ten dollars costs and disbursements, and the motion granted. Present—Barrett, Rumsey, Patterson and Ingraham, JJ.