
    N. Y. COMMON PLEAS.
    John C. Struve agt. Carsten Droge.
    
      District cou/ti,—Appeal from judgment to court of common pleas—No undertaking or deposit required unless stag of execution is desired—Oode of Oiml Procedure, sections 3047, 3050.
    On an appeal from a district court judgment to the court of common pleas no undertaking or deposit is required to perfect the appeal. The payment of the costs of the action only is required hy section 3047 of the Code of Civil Procedure.
    • By section 3050 no undertaking is required unless a stay of execution is desired.
    
      Special Term, September, 1881.
    Motion to dismiss appeal for irregularity in failing to execute and file a proper undertaking on appeal as required by the Code of Civil Procedure, or making a deposit in lieu thereof.
    
      G. S. Yam, Pelt, for motion, contended that the appeal "should be dismissed on the ground that the appellant had failed to either file an undertaking or deposit the costs awarded in the judgment in the court below, as required by the Code of Civil Procedure or the rules and practice of the court.
    
      George F. <& J. O. Julius Langbeim,, in opposition, made and argued the following points:
    
      Fi/rst. By section 3050 of the Code of Civil Procedure, applicable to the district courts in the city of New York, no undertaking on appeal is required unless the appellant desires a stay of execution (Langbein's Law and Practice, p. 268). No stay of execution is desired, and the respondent is at liberty to issue execution if so advised.
    
      
      Second. There is no such permission or requirement of law as an undertaking to be filed, or that the appellant make a deposit in lieu thereof as desired by the respondent. By section 3047 the appellant at the time of serving the notice of appeal must pay to the justice, or if he be dead to the clerk, the costs of the action included in the judgment and the sum of two dollars as the fee of the justice for making the return. By section 3050 the justice must, after ten and within thirty days from the service of the notice of appeal and the payment of the costs and fees as prescribed in section 3047, make a return to the appellate court.
   J. F. Daly, J.

— The moving papers do not show that appellant has failed to pay to the justice or the clerk of this court the costs of the action as required by section 3047 of the Code. The affidavit merely states that “ no undertaking on said appeal has ever been approved, filed or served, and that said appellant has not given the security on appeal by deposit or otherwise as required by the rules and practice of this court.” lío undertaking or deposit is required to perfect an appeal. The section cited provides for the manner of perfecting the appeal so far as service on the justice is concerned, and that only requires the payment of the costs of the action. The motion is evidently not based on a failure to comply with that section.

Motion denied with five dollars costs, to abide event of appeal.  