JACKSON a. SMITH

JACKSON a. SMITH. New York Common Pleas; General Term, July, 1863. Appeal from District Court.—Appeal from Order.—Stay of Proceedings.—Service of Undertaking.—Specifying Irregularity. On appeal from an order made on a motion, where no papers are read in opposition to the moving affidavit, every intendment is in favor of the statements contained in such affidavit. On appeal from a district court of the city of New York before the issue of execution, a stay of proceedings is perfected by filing with the clerk of the Common Pleas an undertaking approved, as required by section 356 of the Code of Procedure. If execution has been issued, a certified copy must also be served on the officer to whom it was issued. It is unnecessary to serve a copy of such undertaking on the respondent. On appeal from an order granting a motion to set aside an execution, issued to the sheriff on a judgment recovered in a district court, it will be presumed in support of the order that such judgment was duly docketed, otherwise the execution would have been to a constable. Objections to motion papers, which might have been remedied at special term by amendment, cannot be raised for the first time on appeal. The issuing of an execution in violation of a stay of proceedings is a substantial grievance, and not a mere irregularity, within the rule that a notice of motion founded on an irregularity must specify it. - Appeal from an order setting aside an execution. This action was Drought in the Sixth District Court by William H. Jackson and another against Charles Smith. The plaintiffs had judgment, from which the defendant appealed to this court, and gave the undertaking required by sections 354 and 356 of the Code of Procedure, which was approved by the district justice and filed with the clerk of the Court of Common Pleas. After the filing of the undertaking, the plaintiffs issued execution upon the judgment. The defendant moved to set aside this execution : the motion was granted, and the plaintiffs now appealed. Harrington & Grieff, for the appellants. I. The respondent’s proceedings were not stayed, because no copy of the alleged undertaking was served. (Code, §§ 356-358.) II. It did not appear that a transcript of the judgment had been filed in this court, or that the undertaking was for an amount sufficient to stay proceedings. III. The moving papers did not specify the irregularity complained of. (Supreme Court Rule 39.) John Anderson, Jr., for the respondent. There is no law requiring the appellant on an appeal from a district court to serve a copy of the undertaking uj>on the respondent. [MAJORITY — By the Court.—Hilton, J.] By the Court.—Hilton, J. Every intendment must be presumed in favor of the statements contained in the moving affidavit read on the motion below, there having been no papers read in opposition. Prom this affidavit we learn that on a judgment rendered in a district court an execution has been issued to the sheriff; and although an appeal has been taken, and the undertaking therein approved and filed, and a copy thereof approved by our clerk duly served on the sheriff, that officer threatens to levy under the execution and remove the property of the defendant. The only ground of opposition urged against a motion, .based on these admitted facts, to vacate an execution issued long after an appeal had been perfected, and which still is undetermined, was that a copy of the undertaking had not been served upon-the respondent’s attorney. ' The plain answer to this objection was that the Code (§§ 354-357) declares that the approval and filing of the undertaking shall stay the issuing of the execution; and, if issued, the service of a copy thereof upon the officer holding it shall stay further proceedings thereon. Here the execution was issued after the undertaking had been approved and filed, and the writ was therefore properly vacated, there being no provision of law or practice requiring such an undertaking to be served on the respondent or his attorney. The appellants from the order made at special term take three objections, neither of which were there alluded to, but all of which may be easily disposed of notwithstanding. I. That this court has no jurisdiction of the motion, the moving papers not showing that a transcript of the judgment had been filed with the county clerk. As to this, it appeared that he had issued an execution on the judgment to the sheriff; and as an execution out of a district court can only issue to a constable (see District Court Act, Laws of 1857, ch. 344, §§ 51, 52), it must be presumed that a transcript had been filed. II. That it did not appear that the undertaking given was in the form prescribed for staying proceedings on the appeal. The affidavit clearly indicates, indeed, the only inference that can be drawn from it is, that the undertaking was one in the usual form for staying proceedings; but, as no objection to its form or sufficiency was made below, it cannot now be considered. HI. That if the execution was irregularly issued, the notice of motion was defective in not specifying the irregularity. There was no question of irregularity involved in the motion. The plaintiffs, in violation of law, had issued an execution, under which they were about seizing the defendant’s property. No mere question of practice was involved in such an act, but a substantial grievance, which the defendant was entitled to have remedied without regard to forms or technicalities. The order should be affirmed. Present, Daly, F. J., Hilton and Brady, JJ.