Kuntz v. Licht

BaeNAbd, P. J.: The question presented arises under section 355 of the Code, which reads as follows : “ When, by the terms of section 352, the appellant is entitled to a new trial in the appellate court, he shall, at the time of taking his appeal, and in all other cases, if he desires a stay of execution of the judgment, give security, as provided in the next section.” The judgment exceeded fifty dollars exclusive of costs, and by the terms of section 352 a new trial resulted, as matter of right, in the appellate court. I think the county judge erred in his construction of the section in question. The clause giving a new trial in cases where the pleadings demanded a judgment upon a claim of over fifty dollars was passed in 1863. The statute in reference to security upon appeals from Justices’ Courts before that required such security only in ease a stay of execution was desired. When the legislature passed the provision giving a new trial upon appeals where the amount demanded was over fifty dollars, there was added the provision that on such appeals “ and in all other cases if he desires a stay of execution,” the appellant should give security. [16] If there was to be no security given upon such appeals there was no necessity for the added clause. The old requirement as to security was sufficient. No security was needed except when a stay of execution was desired. The order is appealable. If security was required to perfect the appeal the County Court obtained no jurisdiction without it The refusal to dismiss the appeal affected a substantial right and-the order refusing it is appealable. (Seymour v. Judd, 2 N. Y., 464.) Order reversed with costs and appeal dismissed, with costs. Gilbert, J., concurred. Present — BarNArd, P. J., Gilbert and DykmaN, JJ. Order of County Court reversed, with ten dollars costs and disbursements, and motion granted to dismiss the appeal.