
    CHRISTY against LIBBY.
    
      New York Common Pleas; Special Term,
    
    
      February, 1867.
    Appeal ekom Obdeb.—Stay of Pboceedings.
    An appeal from an order overruling a demurrer, does not operate, by itself, as a stay of proceedings.
    A stay may be granted by the court; but in ordinary cases only, upon terms of' defendant giving security.
    Motion for a stay of proceedings.
    This action was brought by Harriet E. Christy, as administratrix, against James S. Libby. The defendant demurred to the plaintiff’s complaint. The demurrer was overruled at special term, and an order entered giving the defendant twenty days in which to answer on payment of costs. The defendant appealed to the general term from the order overruling the demurrer, within the twenty days provided for in the order. The plaintiff, after the expiration of the twenty days, gave notice of an application for judgment. The defendant now applied for an order staying the plaintiff’s proceedings, claiming that the appeal from the order operated to stay the judgment on the merits until the issue of law was disposed of.
    
      Amos G. Hull, for the motion.
    
      C. Bainbridge Smith, opposed.
   Brady, J.

The appeal in this case, on the part of the defend mt, is one from an order under the provisions of section 349 of the Code (Phipps v. Van Cott, 4 Abb. Pr., 90), and such an appeal does not operate per se as a stay of proceedings. (Hicks v. Smith, 4 Abb. Pr., 285, and cases cited; Ferry v. The Bank of Central New York, 9 Abb. Pr., 100; Genin v. Chadsey, 12 Abb. Pr., 69.) The order overruling a demurrer is not an exception to the rule. The case of Stewart v. The Saratoga and Whitehall Railroad Co. (12 How. Pr., 447), in which a distinction was made between such an order and others, was overruled in Hicks v. Smith, and for reasons which are approved. If the defendant does not answer during the period allowed for that purpose, the plaintiff would be entitled to judgment. The appeal from the order delays the plaintiff’s recovery until it is submitted to and decided by the general term, which would, in effect, extend the period allowed to serve the answer, thus substantially nullifying the order requiring it to be put in within the time named.' The appellant, by bis own act, therefore, withholds from the plaintiff the right to the effective power of the court. A stay of proceedings might also jeopardize the collection of the demand, and should not, as a general rule, be granted without security. If the general term affirm the order appealed from, but give to the appellant liberty to answer, the bond given ceases to exist as a liability, either of surety or principal, unless otherwise provided by the bond. If the leave should be withheld and an appeal be taken to the court of appeals, a stay would follow if the security required by statute in such cases were given.

In this case the defendant received the money claimed to be due, as a collector, and though he sets up jurisdiction over him in another tribunal, he is held to answer in this action by the deliberate judgment of this court. Under such circumstances the stay should not be ordered without security, and such must be the result of this motion. I think the defendant should give a bond in $5,000, conditioned that the defendant will pay any sum that may be recovered in this action, if the order appealed from be affirmed, and the defendant be not granted leave to answer and does not appeal from the general term of this court to the court of appeals within thirty days after such decision.  