Webster v. Stephens
The Superior Court of New York City
Motion that notice of exception to sureties on appeal to the Court of Appeals, be vacated, or that the time for justifying be extended. The plaintiff served on the defendant on August 18 a notice of appeal to the Court of Appeals, and a copy of the undertaking executed to effect a stay of proceedings. The undertaking was not filed until September 13, and on the 16th defendant excepted to the sureties in the undertaking.
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Motion that notice of exception to sureties on appeal to the Court of Appeals, be vacated, or that the time for justifying be extended. The plaintiff served on the defendant on August 18 a notice of appeal to the Court of Appeals, and a copy of the undertaking executed to effect a stay of proceedings. The undertaking was not filed until September 13, and on the 16th defendant excepted to the sureties in the undertaking. Plaintiff' now moved that the notice of exception “ be vacated and set aside,” or that the time for justifying be extended.
1Opinion of the CourtBosworth, J.
To render an appeal effectual for any purpose, the appellant must execute an undertaking, (Code, § 334) to pay costs; and, to effect a stay, it must provide for paying the judgment, (§ 335). The undertaking is of no effect unless a copy of it and of the affidavits of the sureties be served, (§§ 340-341.) It must be filed with the clerk with whom the judgment is entered, (§ 343). The Code does not in terms say it must be filed before the undertaking can be of any effect. It is quite clear that until it is filed the respondent has no-security that one exists which can be made available to him.…
2Cited by3 opinions
- Hill v. . BurkeNew York Court of Appeals · 1875
- Beddow v. FlageNorth Dakota Supreme Court · 1910
- Farmers' & Mechanics' National Bank v. CraneNew York Supreme Court · 1873