Mackellar v. Farrell
The Superior Court of New York City
Appeal by defendants from a judgment entered upon a verdict directed against them at trial term.. A judgment of foreclosure and sale having been rendered in an action pending between Thomas MacKellar, the plaintiff herein, and George W. Rogers, impleaded, with others, the defendants in order to enable Rogers to stay proceedings on the judgment pending an appeal to the general term, executed the undertaking on which this action is brought.
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Appeal by defendants from a judgment entered upon a verdict directed against them at trial term.. A judgment of foreclosure and sale having been rendered in an action pending between Thomas MacKellar, the plaintiff herein, and George W. Rogers, impleaded, with others, the defendants in order to enable Rogers to stay proceedings on the judgment pending an appeal to the general term, executed the undertaking on which this action is brought. The undertaking was given under §§ 1352 and 1331 of the Code of Civil Procedure, and provided, among other things, that, if the judgment should be affirmed…
1Opinion of the Court
By the Court.—Freedman, J.
This action is brought upon an undertaking executed by the de*401fondants and given npon an appeal taken to the general term from a judgment of foreclosure and sale in the action of MacKellar v. Rogers by the defendant in that action. The defendants here resist recovery upon the ground that after the affirmance of the judgment in MacKellar v. Rogers by the general term, the defendant in that action obtained a stay of proceedings, pending an appeal taken to the court of appeals from the judgment of affirmance upon giving an undertaking.
The defendants claim that the stay…
2Cases cited2 opinions
- Smith v. CrouseNew York Supreme Court · 1857
- Horner v. LymanNew York Court of Appeals · 1868