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Winterhoff a. Siegert,

WINTERHOFF a. SIEGERT.

New York Superior Court; Special Term, October, 1861.

SECURITY ON APPEAL FROM AN ORDER.-STAY OF PROCEEDINGS ON APPEAL.

Section 338 of the Code does not authorize a judge to fix the sum in which an undertaking shall be given, to operate as stay of proceedings on an appeal from an order made in a summary proceeding taken in an action after judgment. It seems, that when an appeal from an order has been perfected, if the appellant desire a stay of proceedings pending the appeal, the court may, in the exercise of its discretion, grant a stay upon such terms as may be just.

It seems, that where an undertaking is required as a condition of granting a stay of proceedings pending an appeal from an order, such undertaking will be an available security to the respondent if the order be affirmed.

Motion to vacate an order, fixing the amount of security to be given on appeal to the Court of Appeals.

In this action, upon supplementary proceedings, William Emerson had been appointed by the county judge of Richmond county, receiver of the equitable interests and property of the defendant, and as such receiver had been directed by an order of the county judge, modified on appeal by the general term of the Superior Court, to sell the interest which the defendant had in certain premises in Richmond county, at a period mentioned in the order. From the order made at the general term of this court, the defendant appealed to the Court of Appeals. The defendant then applied to Mr. Justice Hoffman, at chambers, on notice to the defendant, to fix the amount to be inserted in the undertaking, in order to stay plaintiff's proceedings pending the appeal. After hearing counsel, the justice fixed the amount at twenty-two hundred dollars. Subsequently the plaintiff, pursuant to leave obtained, made the present motion to vacate the order made by Mr. Justice Hoffman.

Horton II. Burlock, for the plaintiff.

William W. Van Wagenen, for the defendant.

Livingston a. Oaksmith.

BOSWORTH, Ch. J.-The only case in which section 338 of the Code authorizes a judge to fix the sum in which an undertaking shall be given, to operate as a stay in case of an appeal, is an appeal from a judgment, and from such a judgment as that section describes. The appeal in question is not from a judg ment, but from an order made on a motion in a summary proceeding taken in the action after judgment. The distinction between appeals from judgments, and orders, is recognized in sections 11, 323, 330, 321, and 334.

Section 334 requires the undertaking therein mentioned to be given as well on appeal from an order, as from a judgment. Sections 334-339 speak only of appeals from judgments.

I think that section 338 does not authorize a judge of the court to entertain an application under it when the appeal is from an order. When an appeal from an order has been taken and perfected, if the appellant desires a stay of proceedings pending the appeal, the court may probably, in the exercise of its discretion, grant a stay upon such terms as may be just.

If it be imposed as a condition to granting a stay, that an undertaking be given to comply with such condition, it will be an available security to the respondent, if the order be affirmed. This motion probably should have been heard before Judge Hoffman. I have conferred with him before deciding the motion. The order of July 17, 1861, must be vacated. Motion granted.

LIVINGSTON a. OAKSMITH.

Supreme Court, First District; Special Term, October, 1861. PLEADING JUDGMENT OR DETERMINATION OF COURT OR OFFICER.

In pleading an insolvent's discharge, it is not necessary, under the Code of Procedure, to state the facts conferring jurisdiction on the officer who granted it.

Demurrer to an answer setting up that defendant had been discharged in insolvency.

Livingston a. Oaksmith.

T. Burwell, for the plaintiff.

B. F. Sawyer, for the defendant.

LEONARD, J.-The Code provides (§ 161) that in pleading a judgment or other determination of a court or officer of special jurisdiction, it shall not be necessary to state the facts conferring jurisdiction, but such judgment or determination may be stated to have been duly given or made.

In this case, it is alleged by the answer, that the Hon. A. D. Russell, then City Judge of the city of New York, duly made and granted to the defendant, then an insolvent and inhabitant of this State, a discharge from his debts, pursuant to the statute in such cases made and provided; and said discharge, granted as aforesaid, is in the words and figures following, &c.,-and the discharge is then copied into the answer literally.

The plaintiff, relying upon the rule of pleading prevailing before the Code was adopted, has demurred to this answer, because of the omission to state the facts necessary to show that Judge Russell had jurisdiction to grant such discharge.

The rule of pleading in this respect has undergone a radical change.

It is no longer necessary, in pleading the determination of an officer of special or limited jurisdiction, to state the facts conferring jurisdiction. It is sufficient now to state that the determination of such officer has been duly given or made.

The answer is, therefore, in my opinion, sufficient.

The demurrer is overruled, with costs, to be paid by the plaintiff to the defendant.

Palmer a. Smedley.

PALMER a. SMEDLEY.*

Supreme Court, First District; Special Term, November, 1861.

COSTS.-JUDGMENT.

Costs awarded on a demurrer to part of a pleading are final, and not interlocutory costs. They cannot, therefore, be recovered until judgment is rendered upon all the issues.

On demurring to part of an answer, the plaintiff may put the cause on the calendar for trial of the issues of fact, without waiting for the decision upon the issues of law.

Motion by the plaintiff for a precept for costs.

The facts are sufficiently stated in the opinion.

W. W. Badger, for the motion.-I. This motion is made under Laws of 1847, ch. 390. Section 3 is intended to include all interlocutory costs, and to substitute a fieri facias for an attachment. (Hulsaver a. Wiles, 11 How. Pr. 446; Mitchell a. Westervelt, 6 Ib., 265; Wetzel a. Schultz, 13 Ib., 191; Lucas a. Johnston, 6 Ib., 121.)

II. The costs claimed are clearly interlocutory. A demurrer to part of an answer is substantially a motion to strike out the

same.

III. The costs belong to the attorney, and he ought not to be required to await the result upon other issues.

G. D. Lamont, for the defendant.

BARNARD, J.—A demurrer was interposed by plaintiff to one of two defences contained in the answer, and the demurrer sustained with costs. Motion is now made for a precept to issue for the costs, or for an order directing the costs to be paid, and for final judgment in case of default in payment, with costs of motion, and for an order directing the issue of fact to be placed in the calendar for trial at its proper place according to its date.

* A prior decision in this cause is reported, 6 Ante, 205.

Palmer a. Smedley.

As the law existed prior to the Revised Statutes, when there were several issues, the party prevailing on the whole record recovered his costs without any deduction for the issues found against him. By the Revised Statutes it was enacted (§ 26), "where there are several issues joined in any cause, and a verdict shall be rendered in one or more of them for plaintiff, and for defendant on another, costs shall be awarded as follows:

"1. When the substantial cause of action was the same in each issue, plaintiff shall recover costs on the issues found for him, and shall not be liable to defendant for the costs of the issues found for such defendant.

"2. When there are two or more distinct causes of action in separate counts, the plaintiff shall recover costs on those issues which were found for him, and the defendant on those found for him.

"Sec. 27. If judgment be rendered for defendant on the whole record, the costs of the issues which may have been found for plaintiff shall not be allowed to either party." It will thus be seen that, whether at common law or under the Revised Statutes, the costs following the decision of one of several issues were always dependent on the final determination of the action. Being thus dependent, they were not interlocutory; but were the final costs to be entered in the judgment for the plaintiff, or defendant, or neither, after all the issues had been disposed of, according to the result. The costs in question, then, being those following the determination of an issue,-for a demurrer to one defence creates an issue,-were not, under the law as it stood prior to the Code, interlocutory costs. Indeed, under the then existing law the plaintiff would not be entitled to those costs unless he recovered upon the whole record.

Has the Code made any alteration? I do not perceive that it has. If the plaintiff is entitled at all to these costs under the Code, irrespective of what may be the result of the other issues, it must be on the ground that he is the prevailing party on the judgment (see § 303) as to one of the issues. Taking this ground, however, it necessarily follows that these costs must be final costs, because they are only allowed on the theory that plaintiff being entitled to a final judgment on one issue, is, as to that, the prevailing party on the judgment to be entered, and entitled when judgment is entered to have it entered in his favor,

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