Channing v. Moore
City of New York Municipal Court
Appeal from a judgment entered by direction of the court after a trial, without a jury. The action is brought on an undertaking for costs given by the defendants to James Kéarney, a defendant in a suit brought by James F. Thomson, a non-resident plaintiff. The plaintiff in this case claims as assignee of the judgments, hereafter referred to, and also avers that he was the attorney for said Kearney.
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Appeal from a judgment entered by direction of the court after a trial, without a jury. The action is brought on an undertaking for costs given by the defendants to James Kéarney, a defendant in a suit brought by James F. Thomson, a non-resident plaintiff. The plaintiff in this case claims as assignee of the judgments, hereafter referred to, and also avers that he was the attorney for said Kearney. In the action in which the undertaking was given, the answer was demurred to, but the demurrer was overruled, and judgment for costs was entered thereon in favor of Kearney. An appeal was then…
1Opinion of the CourtNehrbas, J.
—The appeal to the general term of the court of common pleas, having been taken after the commencement of this action, although duly perfected, cannot act as a stay here. A motion for a stay should have been made. Rice v. Whitlock, 16 Abb. Pr., 225. The appeal subsequently taken, cannot divest a cause of action which has become complete. At the commencement of this action, there existed no such defense, and the plaintiff has done no act by which he divested himself of the right to the remedy which the action affords. There is, therefore, no force in this contention.
But it" is claimed that the…
2Cases cited2 opinions
- Hoyt v. GodfreyNew York Court of Common Pleas · 1882
- Rice v. WhitlockNew York Court of Common Pleas · 1863