general term, affirming an order denying his motion to vacate a judgment against him. He filed an undertaking in the sum of $500 for costs and damages,-held that the appeal was not, per se, a stay of proceedings, but that it was in the discretion of the court below to grant a stay in such a case (Tiers v. Carnahan, 3 Abb. 69; Ford v. David, 3 Abb. 385).

§ 335. (Am'd 1859, 1862, 1863.) On judgment for money; security to stay execution. Sureties becoming insolvent. Deposit in lieu of undertaking.

If the appeal be from a judgment directing a payment of money, it shall not stay the execution of the judgment, unless a written undertaking be executed on the part of the appellant, by at least two sureties, to the effect, that if the judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant will pay the amount directed to be paid by the judgment, or the part of such amount as to which the judgment shall be affirmed, if it be affirmed only in part, and all damages which shall be awarded against the appellant upon the appeal. Whenever it shall be made satisfactorily to appear to the court, that since the execution of the undertaking, the sureties have become insolvent, the court may, by rule or order, require the appellant to execute, file and serve a new undertaking as above; and in case of neglect to execute such undertaking within twenty days after the service of a copy of the rule, or order, requiring such new undertaking, the appeal may, on motion of the court, be dismissed with costs. Whenever it shall be necessary for a party to any action or proceeding, to give a bond or an undertaking, with surety or sureties, he may in lieu thereof deposit with the officer, or into court, as the case may require, money, to the amount for which such bond or undertaking is to be given. The court, in which such action or proceeding is pending, may direct what disposition shall be made of such money, pending the action or proceeding. In any case, where, by this section, the money is to be deposited with an officer, a judge of the court at special term or at chambers, upon the application of either party, may, before such deposit is made, order it to be deposited in court instead of with such officer; and a deposit made pursuant to such order, shall be of the same effect as if made with such officer.

a. Stay of proceedings.-The undertaking required by this section must be filed and served with the notice of appeal and not afterwards. An undertaking pursuant to this section filed after the appeal has been perfected, will not operate as a stay of proceedings (N. Y. Cent. Ins. Co. v. Safford, 10 How. 344). See § 340, and note. Where the undertaking to stay proceedings

is irregular, but not void, the respondent cannot disregard the stay, but should move to set aside the undertaking (Parfitt v. Warner, 13 Abb. 471).

a. An appellant who has given an undertaking intending to stay the proceedings, but insufficient for that purpose, may, under § 327, be allowed time to file a further undertaking (Sternhaus v. Schmidt, 5 Abb. 66).

b On an appeal to the court of appeals from an order of the general term granting a new trial, an undertaking, under § 334, does not stay proceedings in the order in the court below. To obtain a stay a motion must be made in the court below (McMahon v, Allen, 22 How. 193; Valton v. Nat. Loan Fund, 19 id. 515; Tiers v. Carnahan, 2 Abb. 69).

c. All proceedings on a judgment ordering a new trial and awarding restitution are stayed by an appeal, and the giving an undertaking as prescribed by §§ 334, 335, for an amount sufficient to cover the amount adjudged to be restored, and costs (Britton v. Phillips, 17 Abb. 33); but where the restitution is ordered by order apart from and subsequent to the judgment, then an appeal from the judgment would not stay proceedings on such order (id.)

d. A judgment directing the payment of money out of a fund in court, is not a judgment directing the payment of money within this section (Curtiss v. Leavitt, 1 Abb. 274; 10 How. 481). The liability of the sureties extends to any penalty awarded for delay (Horner v. Lyman, 4 Keyes, 237).

e. The undertaking should state the amount of the judgment appealed from (Harris v. Bennett, 2 Code Rep. 23). See section 339.

f. Sureties becoming insolvent. The provision as to sureties becoming insolvent does not apply to the case of sureties in an undertaking given to secure a judgment as a condition of opening a default (Eiseman v. Swan, 11 Abb. 112). Before the power was conferred by this section the court could not order a new undertaking because the sureties in the first had become insolvent (Willett v. Stringer, 15 How. 310).

g. Action on undertaking.-On affirmance of a judgment the sureties on the appeal become liable, and no leave of the court is necessary before suing on the undertaking (N. Y. Cent. Ins. Co. v. Nat. Pro. Ins. Co. 10 How. 344); nor is it necessary to take the undertaking off the file of the court (id). h. An order to execute a new undertaking not complied with does not exonerate the sureties in the undertaking already executed (Jewett v. Crane, 13 Abb. 97).

i. Letting in sureties to defend.-Sureties may be let in to defend on the merits in the place of their principal, even after a judgment against him (Jewett v. Crane, 13 Abb. 97).

$336. (Am'd 1849.) If judgment be to deliver documents, &c., they must be deposited.

If the judgment appealed from direct the assignment or delivery of documents, or personal property, the execution of the judgment shall not be stayed by appeal, unless the things required to be assigned or delivered be brought into court, or placed in the custody of such officer or receiver as the court shall appoint, or unless an undertaking be entered into, on the part of the appellant, by at least two sureties, and in such amount as the court, or a judge thereof, or county judge, shall direct, to the effect that the appellant will obey the order of the appellate court upon the appeal.

j. In an action of claim and delivery, where judgment is rendered for

plaintiff, on appeal from such judgment by the defendant, he must, to stay the proceedings, give the undertaking required by §§ 334, 335, and 336 (Elliot v. Buckland, 37 How. 71).

$337. If to execute conveyance, it must be executed and deposited.

If the judgment appealed from direct the execution of a conveyance or other instrument, the execution of the judgment shall not be stayed by the appeal until the instrument shall have been executed, and deposited with the clerk with whom the judgment is entered, to abide the judgment of the appellate court.

a. Upon an appeal from a judgment directing the execution of an instrument, the proceedings can be stayed only by the execution and deposit of such instrument, and by giving the security required by section 334 (Waring v. Ayres, 12 Abb. 112).

b. A deed of land was deposited with a clerk in chancery, for the purpose of staying proceedings on a decree for specific performance, and was lost. The decree was afterward affirmed,-held that the appellant was bound to execute a new deed (Worrall v. Munn, 17 N. Y. 475).

§ 338. Security where judgment is to deliver real property or for a sale of mortgaged premises.

If the judgment appealed from direct the sale or delivery of possession of real property, the execution of the same shall not be stayed, unless a written undertaking be executed on the part of the appellant, with two sureties, to the effect, that during the possession of such property by the appellant, he will not commit, nor suffer to be committed, any waste thereon, and that if the judgment be confirmed, he will pay the value of the use and occupation of the property, from the time of the appeal until the delivery of possession thereof, pursuant to the judgment, not exceeding a sum to be fixed by a judge of the court by which judgment was rendered, and which shall be specified in the undertaking. When the judgment is for the sale of mortgaged premises, and the payment of a deficiency arising upon the sale, the undertaking shall also provide for the payment of such deficiency.

c. Where the judgment directs the sale of real estate, the court has no discretionary power, unless the appellant be an executor, administrator, trustee, or other person acting in another's right, to limit the amount of security (Watt v. Watt, 15 Abb. 367, note). See § 339.

d. On an appeal from a judgment for a sale of mortgaged premises, the appellant gave an undertaking pursuant to section 334, and it was held effectual to permit the appeal, but not to stay proceedings (Fireman's Ins. Co. of Albany v. Bay, 2 Code Rep. 3). See section 339.

§ 339. (Am'd 1849, 1851.) Stay of proceedings upon security given. When court may dispense with security.

Whenever an appeal is perfected as provided by sections 335, 336, 337, and 338, it stays all further proceedings in the court below, upon the judgment appealed from, or upon the matter embraced therein; but the court below may proceed upon any other matter included in the action, and not affected by the judgment appealed from. And the court below may, in its discretion, dispense with or limit the security required by sections three hundred and thirty-five, three hundred and thirty-six, and three hundred and thirty-eight, when the appellant is an executor, administrator, trustee, or other person acting in another's right; and may also limit such security to an amount not less than fifty thousand dollars, in the cases mentioned in sections three hundred and thirty-six, three hundred and thirty-seven, and three hundred and thirty-eight, where it would otherwise, according to those sections, exceed that sum.

a. An appeal is "perfected" when the proper undertaking, with an affidavit of the sureties, has been executed, and notice of the appeal has been served on the adverse party, and on the clerk with whom the judgment or order is entered; and the twenty days under Rule 2, and the forty days under Rule 7, commence running from that time (Thompson v. Blanchard, 4 How. 210).

b. On an appeal by executors a statement of the want of assets sufficient to pay the judgment, would no doubt be regarded as a good reason why the security should be limited, at least to the amount of assets disclosed applicable to the payment of the judgment appealed from (Mills v. Forbes, 12 How. 466); and this would be the case as well on an appeal to the general term as on an appeal to the court of appeals (id.)

c. Where, after an execution has been levied the defendant appeals to the court of appeals, and gives the security required for a stay of execution on the judgment, it does not remove the lien of the execution. The proceeding on the execution is suspended until the decision of the appellate court. If the appeal is dismissed or the judgment affirmed, the respondent is entitled to resume proceedings on his execution, and will have priority over a subsequent execution (Re Berry, 26 Barb. 55). See note to § 357.

d. The effect of giving security is merely to stay proceedings on the judgment; it discharges nothing, but merely stops the judgment creditor where he was at the time of giving security. It gives the court no authority to vacate any proceeding, or release any right previously acquired, and therefore where an execution had been levied before the requisite undertaking to stay proceedings had been given, the court refused to supersede such execution (Rathbone V. Morris, 9 Abb. 213).

e. The taking an appeal and giving security to stay, do not, per se, operate to discharge a previous levy, nor supersede an execution issued before the appeal was taken (Cook v. Dickerson, 1 Duer, 679; Stricker v. Wakeman, 13 Abb. 85). But where such an appeal is taken in good faith and ample security given, the court will ordinarily supersede a previous execution and discharge a previous levy (id.)

f. Where proceedings are stayed on appeal, the stay continues until judgment on the appeal is perfected. And where proceedings have been stayed on

appeal, the issue of execution on the judgment below before the entry of the judgment on the appeal, is irregular (Bowman v. Tallman, 19 Abb. 84; 28 How. 482; 2 Rob. 632; 3 id. 633).

See note to § 338.

§ 340. (Am'd 1849.) Undertakings may be in one instrument or several.

The undertakings prescribed by sections 334, 335, 336 and 338, may be in one instrument or several, at the option of the appellant; and a copy, including the names and residence of the sureties, must be served on the adverse party with the notice of appeal, unless a deposit is made as provided in section 334, and notice thereof given.

a. This section in terms requires copies of all undertakings necessary; and which the appellant intends to give, to be served with the notice of appeal, and, therefore, where the notice of appeal was given on the 7th of August, and an undertaking under section 334 filed at the same time, and on the 4th of September following, an undertaking, pursuant to section 335, was filed, it was held, that it should have been filed with the notice of appeal, and as it was not, it did not stay the proceedings (N. Y. Central Ins. Co. v. Safford, 10 How. 344; Cushman v. Martine, 13 id. 402; Smith v. Heermance, 18 id. 261; and see Mills v. Thursby, 11 id. 129).

b. But if it be shown that the omitting to file the undertaking when notice of appeal was served, was the result of accident, the court has power to rectify the mistake and stay the proceedings, under section 327 (N. Y. Central Ins. Co. v. Safford, supra).

§ 341. (Am'd 1849.) Sureties to justify.

An undertaking upon an appeal shall be of no effect, unless it be accompanied by the affidavit of the sureties, that they are each worth double the amount specified therein. The respondent may, however, except to the sufficiency of the sureties, within ten days after notice of the appeal; and unless they or other sureties justify before a judge of the court below, or a county judge, as prescribed by sections 195 and 196, within ten days thereafter, the appeal shall be regarded as if no undertaking had been given. The justification shall be upon a notice of not less than five days.

c. Where the notice of justifying is served by mail, it must be double time, or ten days (Dresser v. Brooks, 5 How. 75). Thus, where the respondent on the 6th of June served by mail a notice of exception, which was received by the appellant on the 10th of June, the appellant on the same day (the 10th) gave notice by mail that the sureties would justify on the 17th; and the sureties did justify on that day. The court, on motion, held that the appellant was irregular, but, on ground being shown therefor, extended the time for the sureties to justify (id.)

d. The exception should be the "sureties," not to the undertaking (Young v Colby, 2 Code Rep. 68).

e. A notice of exception to sureties served within ten days after the under