
    BRITTON a. PHILLIPS.
    
      Supreme Court, First District; At Chambers,
    
    
      March, 1861.
    Appeal from Judgment.—Restitution.—Undertaking.—Stay of Proceedings.
    All proceedings under a judgment ordering a new trial and awarding restitution, are stayed by appeal and the giving an undertaking, under section 335 of the Code.
    Where an appeal is taken from an order for restitution made on motion, a stay of proceedings is to be had only by a special order.
    Motion for an attachment for a contempt.
    This action, by Dexter B. Britton against Charles B. Phillips, was brought to recover damages for breach of a contract to convey certain real estate. The cause was referred, and plaintiff had judgment for $1,613.80. On appeal, this judgment was reversed, and a new trial ordered. Judgment was thereupon entered by the defendant as follows:
    
      [Title of cause, and usual recitals.]
    “ It is adjudged that the said judgment be, and the same hereby is, in all things reversed, and that a new trial be, and the same is, hereby granted, with costs, to abide the event. And it appearing to the court, that, notwithstanding the appeal herein, the respondent executed and collected the amount of the judgment below, costs, and sheriff’s fees, to wit, the sum of .$1,855.23, therefore it is further adjudged, ordered, and decreed, that the said respondent make restitution to the said appellant by paying into court to the chamberlain of the city of Mew York, within ten days after service of this decree on him or his attorney, the said sum of $1,855.23, with interest from the date of said collection, on August 5, 1861, by the said respondent, to abide the order of this court after such new trial is had.”
    The plaintiff appealed to the Court of Appeals, and gave the defendant an undertaking, under section 335 of the Code, in double the amount of the money directed to be paid into court and for costs of appeal. Defendant now moved for an attachment against plaintiff for his disobedience of the order directing the payment into court.
    
      Dennis McMahon, for the motion,
    cited McMahon a. Allen (13 Abbotts1 Dr., 126), and contended that section 335 was intended to apply to a different class of judgments.
    
      Anthony D. Dyett, opposed,
    contended that the only way to obtain a new trial when the case had been tried by a referee, was by appeal from the judgment, and not by a motion for a new trial, as where the case is tried by a jury ; that the decision of the general term on such appeal was a judgment, and that the. undertaking stayed proceedings.
   Ingraham, J.

The portion of the judgment which directed a restitution was a part of the judgment, and was authorized to be made a part of the judgment by section 369 of the Code, which provides that “if the order shall be made before judgment is entered, the amount may be included in the judgment.” As such it is to be appealed from as any other judgment for the payment of money, and the amount can be collected by an execution (2 E. D. Smith, 41), if not stayed on appeal. An undertaking given for enough to cover the amount awarded by way of restitution and costs, would stay proceedings as to the whole judgment without an order.

It would be different if the restitution had been ordered on a motion after the judgment; then the undertaking, on appeal, would not apply, and a stay of proceedings would be necessary.

I think the undertaking is valid, and the proceedings stayed.

Motion denied without costs.  