Schermerhorn, appellant, vs. Anderson and others, respondents

Schermerhorn, appellant, vs. Anderson and others, respondents. Where an appeal is brought under the code of procedure from two orders, an undertaking in the sum of $350 is not sufficient, although one of the orders embraced in the appeal is made at a special term of the supreme court, and therefore is not appealable to this court. The appellant allowed to amend his undertaking on terms. L. Livingston moved to dismiss the appeal. On the 1st of April, 1848, a decree was made by the supreme court at special term, dismissing the bill of complaint. An application was made to the general term for a rehearing, which was denied by order pronounced on the 8th of May, but not entered and served until the 5th of July, 1848. On the 14th of July this appeal was taken, and was intended to conform to the provisions of the code of procedure, regulating the manner of bringing appeals. The notice of appeal stated that such appeal was taken from the decree of the 1st of April and the order of the 8th of May. The undertaking also recited both these orders, and that the appeal was from the “ said decree and order,” and it bound the appellant and his sureties to pay all costs and damages that might be awarded on the said appeal, not exceeding tioo hundred and fifty dollars, A. H. Dana, for the respondents. [MAJORITY — Per Curiam.] Per Curiam. The motion must be granted absolutely, so far as the appeal'relates to the decree made at the special term, on the ground that no appeal lies from the special term. The appeal being from two orders, the undertaking is not large enough, and the motion must therefore be granted also as to the appeal from the order of the general term, unless the appel lant amend the undertaking by striking out so much as relates to the order of the special term, and pay the costs of the appeal from that order, and of this motion. Ordered accordingly.