Chas. W. Strohbeck, Inc., Respondent, v. Benett's High Arch Shoe Shop, Inc., Appellant

Chas. W. Strohbeck, Inc., Respondent, v. Benett's High Arch Shoe Shop, Inc., Appellant. First Department, May 21, 1926. Appeal — stay — undertaking filed on appeal from order denying motion to open default judgment and from judgment is not effective as stay — motion by defendant to serve amended notice of appeal and for stay of judgment granted on condition. The enforcement of a judgment rendered by default is not stayed by the serving and filing of a notice of appeal from an order denying defendant’s motion to open the default, and also from the judgment, together with an undertaldng on appeal, for an appeal could not be taken from the judgment and a stay of the judgment pending an appeal from the order could only be procured on motion. Defendant is permitted to serve an amended notice of appeal from the order and the enforcement of the judgment is stayed pending the determination of that appeal upon condition that a proper undertaldng be filed. Motion by the defendant, Benett’s High Arch Shoe Shop, Inc., to require plaintiff to accept notice of appeal and undertaking on appeal, and for leave to file and serve an undertaking, and staying the enforcement of the judgment entered herein pending the determination by this court of the appeal taken by defendant from said judgment and from an order of the Supreme Court denying defendant’s motion to open its default except upon terms as in said order provided. J. E. Wilkinson, for the motion. Edward B. Levy, opposed. [MAJORITY — Per Curiam.] Per Curiam. The defendant served and filed a notice of appeal from both the order and judgment, and an undertaldng on appeal. While the notice of appeal was good with respect to the order, it was of course of no effect with respect to the judgment, which was rendered as upon defendant’s default. (Civ. Prac. Act, § 557.) Consequently, the effective appeal being only from the order denying the motion to open default, the filing of the undertaking did not stay execution pending said appeal. Such a stay can be obtained only by motion. This is a motion for such a stay. The motion should be granted so far as to permit defendant to serve an amended notice of appeal from the order, and staying the enforcement of the judgment pending the determination of the appeal from said order, upon condition that within ten days defendant file an undertaking, with sufficient sureties, to secure payment of the judgment, with interest and costs, including costs of the appeal herein, in the event of affirmance of said order appealed from, or any judgment hereafter recovered herein by the plaintiff against the defendant. Present — Clarke, P. J., Dowling, Finch, Martin and Wagner, JJ. Motion granted so far as to permit defendant to serve an amended notice of appeal from the order, and staying the enforcement of the judgment pending the determination of the appeal from said order, upon condition that within ten days defendant file an undertaking, with sufficient sureties, to secure payment of the judgment, with interest and costs, including costs of the appeal herein, in the event of affirmance of said order appealed from, or any judgment hereafter recovered herein by the plaintiff against the defendant.