Ritter v. Krekeler

Freedman, J. An appeal from a judgment entered upon the direction of a single judge to the general term of the same court under section 348 of the Code, is effectual without security. It is only when a stay of proceedings is desired that security must be given, as upon an appeal to the court of appeals (Genter agt. Fields, 1 Keyes, 483 ; Davis agt. Duffie, 8 Bosw., 691; Halsey agt.. Flint, 15 Abb., 367 ; Kitching agt. Diehl, 40 Barb., 433 ; Niles agt. Battershall, 18 Abb., 162.) The first notice of appeal is, therefore, still operative, and [446] the second was a nullity. After the undertaking served in each case with the first notice had been disapproved, the appellant should have applied for leave to file and serve a new one, nunc pro tunc. Failing to make the proper motion, the several applications for a stay of proceedings, which have been made, were very properly denied. But inasmuch as the appellant does now present a case, upon which relief may and should be granted to him, he may have leave, upon the conditions hereinafter named, to withdraw the second notices of appeal and to file and serve the undertakings filed and served with such notices, or new ones in place thereof, as of the day when the first notices of appeal were served and filed, with liberty, however, to the' respondents to except to the sureties, &c., &c. Upon the approval of such undertakings the sale is to be vacated and set aside, and all proceedings upon the judgment will be stayed. The condition of his relief is, that the appellant in each case pay, within five days after the date of the order to be entered in conformity herewith, to the referee his fees and disbursements in making the sale, and to the attorney for the respondents $10 costs for opposing this motion. Order to be settled on two days notice.