Rathbone v. Morris

Ingraham, J. The defendant has given the necessary security on appeal, and has obtained an order allowing the sureties after justification. He now moves for an order superseding the execution issued before he appealed, and under which a levy had been made. Section 339 of the Code, which prescribes the effect of security on appeal, gives it no other virtue than to stay further proceedings on the judgment; it discharges or vacates nothing, but merely stops the plaintiff where he was at the time of giving the security, leaving him in possession of any rights or security previously obtained. It gives the court no authority to vacate any proceeding, or release any right previously acquired. The same practice prevailed under the old system (Blanchard a. Myers, 9 Johns., 66; Kinney a. Whitford, 17 Ib., 34), and it was only where the execution was issued within the four days, or W'hile the rule for judgment was lieing perfected, that the court could interfere, if the bail were subsequently put in. (Jackson [214] a. Schanber, 7 Cow., 417.) The Bevised Statutes directed a stay, if the execution were not fully executed; and the court refused to order the sheriff to proceed after bail was put in, but they did not vacate the levy. (Delafield a. Sandford, 3 Hill, 473.) The decision of the general term of this district, in the matter of Berry (26 Barb., 55), settles the question in this court. It is there held that the security and appeal only stays further proceedings. They do not undo any thing already done. They only stay an execution if it have not issued, so that if the execution were issued, and a levy made, the sale was stayed, but-the levy was not interfered with. The rule as laid down in these cases may be a hard one to a debtor who has given ample security, but I have no authority to change it. Motion denied.