STRICKER a. WAKEMAN

STRICKER a. WAKEMAN. New York Superior Court ; Special Term, November, 1861. Security oh Appear.—Stay op Proceedings.—Discharge op Levy. The taking of an appeal from a judgment, and giving the security prescribed by the Code, do not operate to discharge a' previous levy, nor supersede an execution issued before the appeal was taken. Where an appeal has been taken from a judgment, and security given as prescribed by the Code, the court should supersede an execution previously issued on the judgment, and discharge a levy, if the appeal is taken in good faith and the security ample. Motion, to set aside execution. On October 9th, 1861, plaintiff perfected judgment against defendant, and on the same day issued an execution upon the judgment to the sheriff of the city and county of Eew York, under which execution the sheriff levied upon a stock of goods of defendant, and put a man in charge. After .levy, defendant appealed to the general term, and gave an undertaking to procure a stay of proceedings on appeal, and served a copy of the same on the sheriff. Defendant’s sureties were excepted to, and justified. Defendant then moved, at special term, to set aside the execution and the levy. Owen, Gray & Owen, for the defendant, contended that the execution of an undertaking, and the justification of sureties on appeal, stayed all proceedings under the execution, and that the levy by sheriff was superseded by the undertaking. Shaffer & Huff, for the plaintiff. —I. The undertaking only-stays the proceedings of the sheriff under levy him, and he must safely keep the property levied on until the termination of the appeal. (Code, §§ 335, 338.) II. The court has no authority to set aside the levy; the Code provides only for a stay of proceedings. III. If the execution is set aside, it should he upon payment of sheriff’s fees, and costs of motion to plaintiff'. [MAJORITY — Woodruff, J.] Woodruff, J. —It is clear, I think, upon a review of cases already decided, and according to the true import of the Code, that the taking of an appeal from the judgment, and giving the security prescribed by the Code, altliQugh they operate as a stay of proceedings and prevent a sale of property levied upon, do not operate to discharge a previous levy, nor supersede an execution issued before the appeal was taken. But the court has power, in the exercise of its discretion in its equitable control over its own judgments and process, to do both, if the ends of justice or the prevention of unnecessary or oppressive hardship requires it. And it should be done when there is no suggestion that the appeal is not taken in good faith, or that the security given on the appeal is not ample to secure to the defendant the amount of his recovery, if the judgment should be affirmed. On the payment, by the appellant, of the sheriff’s fees on the execution herein already accrued, the levy may be discharged and the execution set aside.