
    Joseph Walz, Appellant, v. Magdalena Humrich, Respondent.
    Second Department,
    October 10, 1913.
    Judgment — decree requiring execution of mortgage — practice — stay on appeal — filing instrument with county clerk not sufficient — undertaking required by section 1336 of the Code of Civil Procedure.
    A defendant who has been directed by a final decree to execute and deliver a mortgage on lands, and against whom a judgment for costs has been rendered, does not stay the execution of said decree pending an appeal to the Appellate Division by filing with the county clerk a mortgage executed in accordance with the judgment to await the result of the appeal.
    
      It seems, however, that as the judgment for costs can be enforced by execution, a proceeding to punish the defendant for contempt in not discharging that portion of the judgment is improper.
    While a proceeding to punish for contempt is the proper method of enforcing the final decree directing the delivery of the mortgage, a defendant, having deposited the.mortgage with the county clerk under a misapprehension of the law, should be given a reasonable opportunity to file the' undertaking required by section 1336 of the Code of Civil Procedure, which is necessary to stay the execution of the judgment as provided in section 1353 of the Code of Civil Procedure.
    Section 1330 of the Code of Civil Procedure, relating to a stay by filing with the clerk an instrument executed pursuant to a judgment or order, refers to cases in which an appeal has been perfected as required by sections 1353 and 1336 of the Code of Civil Procedure.
    Appeal by the plaintiff, Joseph Walz, from an order of the Supreme Court, made at the Queens County Special Term and entered in the office of the clerk of the county of Queens on the 12th day of June, 1913.
    
      Nicholas Dietz, for the appellant.
    
      John M. O’Neill, for the respondent.
   Carr, J.:

The plaintiff obtained a final judgment against the defendant, which directed her to execute and deliver to the plaintiff a mortgage on certain real estate in the sum of $2,000, and which likewise awarded against the defendant the taxable costs in the action. The defendant has appealed to this court. She then deposited with the county clerk of Queens county, to await the determination of said appeal, a mortgage in accordance with the directions of the final judgment in this action. The plaintiff thereupon moved to punish her for contempt in failing to deliver said bond and mortgage to him as directed by the final judgment. This motion was denied, and from the order denying the same the plaintiff appeals to this court.

The sole question involved is whether or not the defendant, by depositing the mortgage in question with the county clerk of Queens county, thereby stayed the execution of the judgment, pending the determination of the appeal. The defendant does not contend that the money part of said judgment was stayed by the deposit of the mortgage, but she insists that, as execution might issue against her for that portion of the judgment, a proceeding to punish her for contempt in not discharging the money obligation of the judgment is improper. That much may be conceded. However, unless the judgment directing the execution and delivery of the mortgage was stayed pending the appeal, there is no other way in which the plaintiff could enforce the final judgment without resorting to proceedings to punish for contempt. The defendant has obtained no order of court granting a stay of the execution of the judgment, hence her rights in the premises are to be determined exclusively by the provisions of section 1352 of the Code of Civil Procedure, which relates to appeals to this court. By that section, a judgment may be stayed by an appellant without an order of the court, where the appellant gives the security required to perfect an appeal to the Court of Appeals from a similar judgment. Here the defendant has not given the security which would be required to perfect an appeal to the Court of Appeals. She contends, however, that under section 1330 of the Code the deposit by her of the mortgage in question with the clerk of the court was sufficient to stay the execution of that part of the judgment which required the execution and delivery of the mortgage to the plaintiff. Section 1330 provides as follows: “If the appeal is taken from a judgment or order, directing the execution of a conveyance, or other instrument, it does not stay the execution of the judgment or order, until the instrument is executed, and deposited with the clerk, with whom the judgment or order is entered, to abide the direction of the appellate court.” This section, however, refers to a case in which an appeal has been perfected. Unless there is a perfected appeal there can be no stay. An appeal, however, to the Court of Appeals is not perfected until the requirements set forth in section 1326 of the Code are fulfilled, which requires that ordinarily an appellant must give a written undertaking to the effect that he will pay all costs and damages which may be awarded against him on the appeal, not exceeding $500. This the defendant has not done, and she is in no position to avail herself of the provisions of section 1330, which refer, as above stated, to a perfected appeal. (Waring v. Ayres, 12 Abb. Pr. 112.) The order denying the motion to punish the defendant for contempt in failing to obey the final judgment must be reversed, as otherwise the plaintiff is left remediless under the existing situation. Inasmuch as the defendant seems to have proceeded in good faith through a mistaken interpretation of sections 1352 and 1330 of the Code as aforesaid, she should be given a reasonable opportunity to comply with the requirements of section 1326.

The order should be reversed, with ten dollars costs and disbursements, and motion to punish the defendant for contempt is granted, with ten dollars costs, unless the defendant within twenty days complies with the final judgment or files the security required by section 1326 of the Code of Civil Procedure, and pays the costs and disbursements of this appeal.

Jenks, P. J., Thomas and Putnam, JJ., concurred; Rich, J., not voting.

Order reversed, with ten dollars costs and disbursements, and motion to punish defendant for contempt granted, with ten dollars costs, unless the defendant within twenty days comply with the final judgment or file the security required by section 1326 of the Code of Civil Procedure, and pay the costs and disbursements of this appeal.  