READ a. POTTER

READ a. POTTER. Supreme Court, First District; At Chambers, October, 1860. Stay of Proceedings on Appeal. On appeal from a judgment directing the delivery of personal property, such as will depreciate by time and use, it would not be just for the court to allow a stay of proceedings upon an undertaking to obey the order of the court upon the appeal, under section 336 of the Code of Procedure. The respondent should have indemnity for the use and the depreciation of the property in case the judgment is affirmed. Motion for stay of proceedings on appeal from a judgment. [MAJORITY — Leonard, J.] Leonard, J. The judgment in this case directs the delivery, &c., of personal property now in the possession of the defendants, Potter and wife, to a receiver. The property is such as will depreciate by time and use. The defendants have appealed from the judgment, and propose to give security under section 336 of the Code, to procure a stay of proceedings, and application is -now made to the court to direct the amount in which the security shall be given. That section provides that the property shall be delivered to a receiver, &c., or the appellant shall execute an undertaking with sureties, in such amount as the court shall direct, to the effect that the appellant will obey the order of the appellate court upon the appeal. The appellate court can only reverse, affirm, or modify the judgment appealed from. (§ 330.) Should the judgment be affirmed, the. result will he that the defendants will then be required, as the judgment now requires them, to deliver the property to a receiver; and if they shall ., then do- so, the plaintiff will have no remedy on the undertaking given on the appeal; that is, there will not have been any breach of the undertaking, and of course no cause of action will have arisen. Such a result will be to give the defendants the use of the property in the mean time, and if it has depreciated in value, plaintiff will sustain an injury without having any indemnity therefor on the undertaking. The appellant is not to have a stay of proceedings on such an appeal, unless the court or a judge thereof so order (§ 348). The stay may be made on such terms as to security, or otherwise, as may be just, the security not to exceed the amount required on an appeal to the Court of Appeals (§ 348). In a case like the present, it would manifestly not be just to order a stay on any undertaking under § 336. A stay of proceedings will be refused in this case, unless an undertaking be executed in double the value of the property (if it is of less value than the amount of the judgment), or in double the amount of the judgment (if the property be of greater value) for the payment of a certain sum, to be fixed according to the value of the property, in case the judgment be affirmed.