
    Richard B. Wick, Plaintiff, v. The Fort Plain & Richfield Springs Railroad Co., Defendant.
    (Supreme Court, Onondaga Special Term,
    November, 1897.)
    When an. undertaking, to stay the execution of a judgment, must be given.
    An undertaking, given under the provisions of section 1352 of. the Code of Civil Procedure, by a railroad company to stay the execution of- a judgment, rendered against it upon the foreclosure pf a mechanic’s lien and from which it has appealed, must, under the provisions of section 1334, made applicable to such an undertaking, be given at or before the expiration of the time to appeal; and where this has not been done, the judgment is not stayed.
    Motion upon order to show cause why an undertaking on appeal given by the above-named defendant railway company herein, together with the certificate of Hon. W. E.' Scripture annexed thereto, and the notice of filing thereof annexed “ should not be in all things vacated and set aside and removed from the files in the Herkimer county clerk’s office, with such other and further relief in the premises as to the court shall seem proper.”
    R. R. Martin, for motion.
    James G. Janeway, opposed.
   Hiscock, J.

This action was brought to foreclose a mechanic’s lien alleged to have been effected against the property of the defendant railway company, various other lienors being joined as parties defendant. On or about June 2, 1896, a judgment was rendered sustaining the liens of several of the other defendants as against defendant railway company’s property; and, amongst other things, directing a sale of the said property for the purpose of paying such liens, with the expenses of the suit, etc. The railway company, August 3, 1896, appealed from said judgment, but gave no undertaking. Thereafter, under such judgment, sale of said property upon December 7, 1897, was advertised. November 20, 1897, a justice of the Supreme Court having approved the same as to form and sufficiency of the sureties and fixed the liabilities of the latter in accordance with the terms thereof, an undertaking was filed by said railway company in the form prescribed by section 1331 of the Code for an undertaking in such a case to stay execution of judgment, and thereafter a copy thereof with notice of filing, etc., was served upon the attorneys for the plaintiff and other defendants therein.

It is claimed that said undertaking having beep made and filed long after the time within which said defendant could appeal herein, was late and ineffectual, especially to accomplish any stay of execution of judgment, and that is the only question involved in this motion.

Section 1351 of the Code, relating to the subject of appeals from the Supreme Court to the Appellate Division provides, Security is not required to perfect the appeal; but, except where it is otherwise specially prescribed by law, the appeal does not stay the execution of the judgment or order appealed from; unless the court, in'or from which the appeal is taken, or á judge thereof, makes an order directing such a stay.”

Section 1352 of the Code provides, “ Upon an appeal from a final judgment, taken as prescribed in this title, the appellant may give the security required to perfect an appeal to the -Court of Appeals, from a judgment of the same amount, or to the same effect; and to stay the execution thereof. In that case, the execution of the judgment appealed from is stayed, as upon an appeal to the-Court of Appeals, and subject to the same conditions.”

Section 1351 further provides, “ H security is given, -either as a condition of granting the order (provided for in section 1351), or as prescribed in the next section (1352), the provisions of title second of this chapter apply thereto, as if the Appellate Division of the Supreme Court was specified in those provisions, in place of the appellate court, and a judge of the same court in place of a judge of the court b.elow.” .

It is not claimed that any order was made by the Supreme Court or a judge'thereof in connection with the undertaking in question and predicated upon it directing any stay, and the defendant must, therefore, be consider’d to have served his undertaking and to have secured hra stay, if at all, under the" provisions of section 1352. So that, under the terms of section 1351, we have the provisions of title-second covering the subject of appeals to the Court of Appeals, applying to the undertaking, arid also the provisions of séction 1352, allowing the appellant to give “ the security required to perfect an appeal to the Court of Appeals from a judgment of the same amount or to the same effect; and -to stay the execution thereof,” and further providing that in that case the execution of the judgment appealed from is stayed as upon an appeal to the Court of Appeals and subject to the same conditions.” -.

" Turning now to the title in question, we find section 1326, treating of the security necessary to perfect an appeal to-the Court, of Appeals, and then sections 1327 to 1331, both inclusive, treating of the various kinds of-undertakings, necessary to effect stay , of execution upon appeal from various kinds of judgment,, respectively. Then follows section 1334, relating to such undertakings, and which, provides Where two or more undertakings are required to be given as prescribed in this title they may be contained in the same instrument, Or in different instruments at the option of the appellant. Each undertaking given as prescribed in this title, must be executed by at least two sureties, and must specify the residence of each surety therein. A copy thereof, with a notice showing where it is filed, must he served on the attorney for the adverse party with the notice of appeal or before the expiration of the time of appeal .”

Therefore, we have the defendant railway company attempting to stay execution of judgment by an undertaking under a section of the Code which authorized it to “ give the security required to perfect an appeal to the Court of Appeals from a judgment of the same amount or to the same effect; and to stay the execution thereof,” and under the provisions of that section and of section 1351, which in effect made applicable all of the provisions and conditions of the Code applicable to an undertaking on appeal to the Court of Appeals to perfect appeal or to stay execution of judgment. Amongst such provisions and conditions is the one quoted from section 1334, which, in effect, requires that such undertaking upon appeal to the Court of Appeals must be given at or before the expiration of the time to appeal. This seems to me to be conclusive and decisive in the affirmative of the contention made by the moving, party herein that said defendant has been late with its undertaking. ' .

The counsel for defendant has argued carefully and at length that various restrictions and regulations requiring an appellant to give security in order to perfect an appeal to the former General Term or present Appellate Division have been broken down and removed, and from which he argues in a general way that the provision fixing the time of giving an' undertaking upon appeal to the Court of Appeals, should not be applied to this appeal. It is true that greater latitude is allowed in appealing without security to the Appellate Division than to the Oonrt of Appeals, provided no stay is desired, but if the appellant desires to stay execution of judgment there seems to be no good reason why he should not be held with reasonable strictness to an observance of the provisions seeming to apply to the subject, and it is certainly desirable that if execution of a judgment is to be stayed by the giving of an undertaking, the successful party having recovered the judgment should be seasonably informed of that fact by the execution of the undertaking bef ore tbe time to appeal has expired rather than a longer time after when he has taken steps and incurred expenses to carry his judgment into effect.

The motion, therefore, is granted, but without prejudice to any right which the appellant may have to apply fof leave to file its •undertaking and be relieved from its default.

Ordered accordingly.  