BRIGGS v. BROWN

BRIGGS v. BROWN. N. Y. Supreme Court, Second Department, Second District; Special Term, April, 1884. Undertaking on Appeal; Code Civ. Pbo. §§ 1356, 1311, 1333. To effect a stay, the undertaking on appeal from a judgment affirming a money judgment must, under Code Civ. Pro. § 1333, secure the judgment so affirmed. On an application made under section 1356 or section 1311, to mark a judgment secured on appeal, the sureties must have notice. Motion to suspend lien of judgments, &c. The defendant recovered judgment at special term for costs. The plaintiff appealed to general term, which gave judgment affirming the judgment at special term and awarding costs of appeal. The defendant issued execution, on both judgments. The plaintiff then appealed to the court of - appeals, and, having given an undertaking securing payment of costs in the court of appeals, and of the sum awarded by the judgment at general term, moved to suspend the lien of both judgments and to discharge levies made in execution thereof. L. B. Bunnell, for motion. L. E. Opdycke, opposed. [MAJORITY — Brown, J.] Brown, J. The undertaking on appeal must be in such form as to secure the original judgment, rendered February 28, 1883. This undertaking does not do that, but secures the judgment appealed from, viz : the judgment for costs at general term (see §1332, and notes in Throop’s Code ; Morss v. Hasbrouck, 10 Abb. N. C. 407). The sureties must also have notice of the motion (§ 1311).' The motion is therefore denied, with costs.