
    Erwin Steinback, Appellant, v. Louise Diepenbrock, as Executrix, etc., of Alois Diepenbrock, Respondent, Impleaded with Another. Anson G. McCook, Chamberlain of the City and County of New York, Respondent.
    
      Appeal — decree directing the payment of money out of court — the security to secure a stay pending an appeal therefrom rests in the discretion of the court —it should cover the interest pending an appeal.
    
    Prior to the Code of Civil Procedure there was in force the chancery rule, providing that where a decree was made directing the payment of money in court to one of the parties to an action “the filing and perfecting of an appeal by giving bond for the payment of costs thereon ” should stay all proceedings.
    Under the Code of Civil Procedure such a bond does not effect a stay, and the question as to the security to be given upon an appeal from such a decree is left to the sound discretion of the court.
    On such an appeal it is proper that the appellant, if he desires to secure a stay, should give an undertaking conditioned that in case the decree be affirmed, or the appeal be dismissed, he will pay to the other party the difference between the interest which might be realized upon the money pending the appeal and the rate of interest which may be actually realized upon the fund in court.
    Appeal by the plaintiff, Erwin Steinback, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 31st day of March, 1896, denying his motion for an order directing the chamberlain of the city of New York to pay to him certain moneys as required by a decree of the court.
    
      
      Thomas W. Rowlette, for the appellant.
    
      Max Meyer and A. Edward Woodruff, for the respondents.
   Barrett, J. :

Upon the 23d of October, 1895, after a trial at Special Term, the plaintiff had judgment decreeing that he was entitled to'a sum of money which had previously been deposited with the chamberlain of the city of New York to the credit of this action, and directing the payment to him by the chamberlain of such sum with its accumulations. From that judgment the defendant Diepenbrock appealed to this court where there was an affirmance. From this affirmance the said defendant has since appealed to the Court of Appeals. Upon the latter appeal the defendant has given the usual undertaking to perfect the appeal, and also to pay the costs awarded to the plaintiff by the Special Term of this court. These costs the defendant Diepenbrock (not the chamberlain) was required to pay to the plaintiff. The defendant Diepenbrock, however, gave no undertaking to pay interest upon the moneys in the clamberlain’s hands, pending this last appeal. The plaintiff, claiming that the undertaking given by the said defendant only stayed proceedings so far as the collection of the costs was concerned, demanded payment from the chamberlain of the principal snm in accordance with the directions of the original judgment. That officer, having notice of of the defendant’s appeal and undertaking, very properly declined to so pay until further directed by the court. Thereupon the plaintiff moved for an order requiring such payment. The defendant Diepenbrock opposed the motion upon the ground that the uuderr taking which she had given stayed all proceedings upon the judgment. The learned judge at Special Term took the latter view and denied the plaintiff’s motion. From that denial the plaintiff appeals.

It had long been the rule that where a decree is made directing the payment of a fund in court to one of the parties to the litigation, from which decree the adverse party appeals, it is only necessary for the appellant to give the usual undertaking required to perfect the appeal to the Court of Appeals in order to effect a stay of proceedings. That was the rule in Chancery (The City Bank v. Bangs, 4 Paige, 285 ; Wright v. Miller, 3 Barb. Ch. 382; Quackenbush v. Leonard, 10 Paige, 136, 137), and that rule was followed under the Code of Procedure. (Curtis v. Leavitt, 10 How. Pr. 481.) But this rule resulted from the terms of the then existing statutes. Under the Revised Statutes it was provided that an appeal from an order or decree directing the payment of money should not stay the enforcement of the decree unless a bond was given conditioned that the appellant would, upon affirmance, satisfy the amount so directed to be paid. (2 Edmonds’ Statutes at Large [R. S.], p. 628, § 82.) Provision was also made for a stay in other cases as where the decree directed the assignment or delivery of securities, chattels and things in action, or the execution of a conveyance or the sale or delivery of real property. (Id. §§ 83, 84, 85.) After thus covering a great variety of cases, a general provision was made for all other cases not provided for. That general provision was that in such other cases the filing and perfecting an appeal by giving bond for the payment of costs thereon ” should “ stay all proceedings in the Court of Chancery upon the order or decree appealed from and upon the subject-matter thereof ” (Id. § 89), except in certain particulars not necessary to be enumerated. The chancellor held in The City Bank v. Bangs (supra) that a decretal direction to pay money which was in court did not come within section 82; that the direction to pay money contemplated by that section was a direction to one of the parties to the action ; and consequently that the bond to stay proceedings provided for in section 82 was not required where the money was in court. It was further held that the case of money in court so directed to be paid to one of the parties to the action was a case not specially provided for, and consequently that it came within section 89. Thus a stay was effected by the giving of a bond merely for the payment of the costs upon the appeal. These provisions of the Revised Statutes were with some modifications re-enacted in the Code- of Procedure. Provision was there made for staying proceedings in similar cases (Code Proc. §§ 335-339), and a general provision followed that, in cases not thus provided for, “ the perfecting of an appeal by giving the undertaking mentioned in section 334 (that is, for costs and damages not exceeding $500), shall stay proceedings in the court below upon the judgment appealed from.” (Code Proc. § 342.), In. view of this latter section the Supreme Court held in Curtis v. Lemitt (supra) that the chancery rule must he followed, and that where he decree directed the payment of money which was in court, a stay upon appeal was effected by the giving of an undertaking, under section 334, for the costs of the appeal.

The foundation of the rule, however, fell with the failure to re-enact in the Code of Civil Procedure the general provision to which we have referred. We find in this new Code substantially the old provisions with regard to security in the same class of cases. But the general provision for a stay in all other cases, upon a mere undertaking such as is required to perfect the appeal, is omitted. And this general provision — what was contained as we have seen in section 342 of the Code of Procedure — was not overlooked. It was omitted advisedly, for we find that provision is specially made in the Code of Civil Procedure for the exception as to perishable property contained in this old section 342. Thus in section 1310 (Code Civ. Proc.) it is provided that, notwithstanding a stay upon appeal, perishable property may be sold, etc., and this provision is almost in the language of section 342.

Thus it was clearly intended to leave unclassified cases to the sound discretion of the court, where, indeed, such cases properly belonged. It was always an inconvenience, and frequently resulted in injustice, to be bound by an ironclad rule with regard to stays upon a mere undertaking for costs in cases not specially provided for. The omission in the new enactment of the old provision was Arise and in the interest of justice. In the case at bar Ave have an illustration of this inconvenience. The fund in court is drawing only two per cent interest. If the judgment had directed the payment of money by the defendant Diepenbrock, she would have been required to give such security as would guarantee the payment of lawful interest. Such interest would ran upon the judgment. The plaintiff should not be deprived of this interest merely because the money happens to be in court, and the defendant insists upon a further review. We think that her undertaking has effected no stay so far as the direction to pay this money to the plaintiff is concerned. Such a stay should only be granted to her upon condition that she gives a bond with proper. sureties in the penalty of $1,500, conditioned in case, the judgment appealed from be affirmed, or the appeal be dismissed, to pay the plaintiff the difference between what.ever interest may be realized upon tlie money pending tbe appeal and two per cent.

The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted unless the defendant Diepenbrock, within ten days, give the bond herein directed, such bond to be approved of by a justice of the court upon notice to the plaintiff and upon justification of the sureties if required. Upon the approval of such a bond the defendant Diepenbrock may have a general stay.

Rumsey, Williams, Patterson and Ingraham, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motiou granted unless defendant give bond as directed in opinion.  