Rice v. Whitlock
New York Court of Common Pleas
Appeal from a judgment. This was an action by Henry G. Rice and William H. Stewart against Augustus Whitlock, upon an agreement or undertaking, which recited that a judgment had been recovered in the Hew York Common Pleas against one R. H. Isham for $3,994.73, from which Isham had taken an appeal, but without giving security to stay proceedings; that supplementary proceedings were pending against Isham, and an attachment had been issued against certain property of his in…
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Appeal from a judgment. This was an action by Henry G. Rice and William H. Stewart against Augustus Whitlock, upon an agreement or undertaking, which recited that a judgment had been recovered in the Hew York Common Pleas against one R. H. Isham for $3,994.73, from which Isham had taken an appeal, but without giving security to stay proceedings; that supplementary proceedings were pending against Isham, and an attachment had been issued against certain property of his in Connecticut: the present defendant then undertook, that on the plaintiffs abandoning the supplementary and attachment…
1Opinion of the CourtHilton, J.
The Code provides that an appeal in an action to the general term of this court does not stay proceedings on the judgment appealed from, unless security be given thereon as on the appeal to the Court of Appeals (§ 348); and, further, that no action shall be commenced upon any undertaking given in pursuance of the provisions of this section in case an appeal shall be taken to the general term, nor shall any recovery be had upon any such undertaking until after the final determination of such appeal.
The agreement or instrument here sued upon is not such an undertaking, nor does it seem that the…
2Cases cited3 opinions
- Burr v. BurrNew York Court of Chancery · 1843
- Burrall v. VanderbiltThe Superior Court of New York City · 1858
- Ex parte WallisNew York Supreme Court · 1827
3Cited by2 opinions
- Crandell v. BickerdNew York Supreme Court · 1900
- Channing v. MooreCity of New York Municipal Court · 1887