Kitching v. Diehl

Lott, J. Final judgment 'on the report of a referee was entered in this action on the 11th day of August, 1863, in favor of the plaintiff, from which the defendants in due time appealed to the general term, but no undertaking or security of any kind on the appeal was given, and a motion is now made to dismiss the appeal on the sole ground that such undertaking or security has not been given. This is not a sufficient ground for the motion. The appeal is effectual, under § 348 of the code, but it does not per se operate as a stay of proceedings on the judgment. Such has long been considered the settled practice; but a late decision by the general term in this district, in the case of Kelsey v. Campbell, as reported in 38 Barb. 238, is supposed by the counsel of the plaintiff to establish a different rule. In this he is mistaken. That case related to the effect of an appeal from the supreme court to the court of appeals. The omission to state that fact in the statement of facts has led to the misapprehension of the decision. It is true that the learned justice who delivered the opinion of the court makes the general remark that “ an appeal without an undertaking amounts to nothing, and accomplishes nothing,” but its application and meaning sufficiently appear by the context. He had, immediately previous to making it, referred to sections 334, 335 and 341. of the code, which are a part of the chapter relating to appeals to the court of appeals, and after alluding to the requirements to make such appeals effectual and to the consequences of an omission of sureties in an undertaking to justify when an exception is taken to their sufficiency, he taakes the remark in question. I have deemed it proper, however, not to leave the matter to inference merely, but to explain the case, by stating the fact that the appeal spoken of in the opinion was one to the court of appeals, and that the decision has no reference to an appeal to the general term of this court under § 348 in a different chapter of the code. The plaintiff’s motion must therefore be denied; but under the circumstances, without costs. Lott, Justice.]