The Architectural Iron Works, Appellant, v. The City of Brooklyn, Respondent

The Architectural Iron Works, Appellant, v. The City of Brooklyn, Respondent. An undertaking for costs is necessary on hppeal to this court, in order to make the appeal effectual for any purpose (Code of Civil Procedure, § 1326), and the court has no power to dispense with it; its power is limited to dispensing with the security required to stay execution (§ 1312). Where, however, notice of appeal was served in good faith, without giving an undertaking for costs, in reliance upon an order of the court dispensing therewith, held, that the neglect should he deemed excusable, and .that the omission might he supplied (§ 1303). (Argued June 14, 1881; decided June 21, 1881.) This- was a motion to, strike this cause from the calendar. The plaintiff recovered a judgment against the defendant in the City Court of Brooklyn for $12,515.97. It was reversed by the General Term of that court, and a new trial granted. The plaintiff appealed from that order and, claiming to sue as trustee, obtained from the City Court an order dispensing with security on the appeal. The defendant appealed from that order, and its appéal is still pending. It then made this motion, upon the ground that the undertaking required to perfect the appeal by the plaintiff from the order granting a new trial has not been given. The court say: “ The order of the City Court, if valid, was broad enough to make uimecessary the undertaking required by section 1326 of the Code. Its power, however, did not extend thereto. In its discretion it could limit or dispense with the security required to stay execution (§ 1312), but an undertaking for costs was necessary to render the notice of appeal effectual for any purpose. (§ 1326.) The notice, however, was given reasonably, in good faith and under circumstances which show that the omission to give the requisite undertaking was due to a reliance upon the order of the City Court, and in some measure, perhaps, to the failure of the respondent to prosecute its appeal therefrom. The neglect should be deemed excusable, and the omission may now be supplied. (Code, § 1303.)” Wm. C. De Witt for motion. Joshua A. Van Cott opposed. [MAJORITY — Danforth, J.,] Danforth, J., reads for granting motion unless appellant, within twenty days after entering order, files and serves an undertaking in the form required to perfect appeal under section ■ 1326 of the Code of Civil Procedure and pays to the respondent $10 costs, in which case motion denied. All concur. Ordered accordingly.