
    New York Security and Trust Company, Respondent, v. Saratoga Gas and Electric Light Company, Defendant; William V. Reynolds and The First National Bank of Saratoga Springs, Appellants.
    
      Appeal — an undertaking under the first clause of Code of Civil Procedure, § 1331, does not stay a sale where the appellant is not in possession, or where personal property is affected thereby.
    
    Pending an appeal from a judgment directing a sale oí real and personal property, an appellant out of possession of the property cannot secure a stay of execution by giving the undertaking prescribed m the 1st clause of section 1331 of the Code of Civil Procedure, conditioned that the appellant while in possession of the property will not commit or suffer to be committed any waste thereon, and that if tile judgment is affirmed or the appeal dismissed, he will pay the value of the use and occupation of the property, as that section only applies to cases where the appellant is in possession and where the judgment appealed from affects real property alone.
    The appellant’s remedy in such case is to apply to the court for a stay, the court having power at all times to grant a stay upon such terms as the equities of the particular case require.
    Appeal by the defendants, William V. Reynolds and another, from an order of the Supreme Court, made at the Schenectady Special Term and entered in the office of the clerk of the county of Saratoga on the 20th day of January, 1896, granting the plaintiff’s motion to confirm the report of sale herein and overruling exceptions of the defendants to said report, and holding that an undertaking, given pursuant to the first clause of section 1331 of the Code of Civil Procedure, did not stay the sale directed by the judgment in the action.
    Also an appeal by the defendants, William Y. Reynolds and another, from an order of the Supreme Court, made at the Schenectady Special Term and entered in the office of the clerk of the county of Schenectady on the 20th day of January, 1896, denying the defendants’ motion to set aside a sale of the premises affected by the action.
    
      Edward Winslow Paige, for Reynolds, receiver, appellant.
    
      William B. Hornblower and Howard A. Taylor, for the respondent.
   Parker, P. J.:

This action is brought to foreclose a mortgage executed by the Saratoga Gas and Electric Light Company upon its franchise and property, real, personal and mixed, whether then owned or thereafter to 'be acquired or constructed, to secure the payment of $300,000 of its bonds. The plaintiff holds the mortgage as trustee for the bondholders, and the foreclosure is asked for upon the ground that default having been made in the payment of the interest, the whole of such bonds had become due and payable. A receiver was appointed at the instance of the plaintiff to take and manage the mortgaged property during the pendency of the litigation, and such receiver had possession of the same at the time the orders from which these appeals are taken were made. During the time of such possession he had to some extent continued the business in which the mortgagor was engaged. The mortgagor was insolvent, and the defendant William V. Reynolds had been appointed a receiver of its property in sequestration proceedings, and as such opposed the foreclosure of the mortgage. The judgment in the action, in substance, directs that all the property of the mortgagor, real, personal and mixed, including easements, rights of way, fixtures, materials, supplies, machinery, plant, franchises, contracts and dioses in action, of which the receiver appointed in the foreclosure proceeding was directed to take possession, or which have heretofore belonged to such mortgagor, or which he may acquire or be possessed of up to the time of turning over possession of the premises to the purchaser, including especially any contracts that the mortgagor or such receiver may have for the public lighting of the village of Saratoga Springs, or any right of action in connection with the bids that such receiver has heretofore put in for further contracts, be sold as an entirety at public auction by a referee therein duly appointed.

Such judgment was affirmed on appeal, to the General Term. An appeal from such affirmance has been taken to the Court of Appeals by the defendants Reynolds and the First National Bank of Saratoga Springs, and is now pending. Such appellants have executed and have had properly approved an undertaking containing the obligations required by the first clause of section 1331 of the Code, and the question presented to us by these appeals is whether such an undertaking was operative to stay the sale directed by such judgment.

We are of the opinion that the provisions of that section are not applicable to the case before us. The evident purpose of the section is to secure to the respondent, upon such appeal, indemnity against loss, by reason of being deprived'of the use of the property during the delay caused by the appeal, and by reason of any waste that may be committed thereon during that period. The section seems to assume that if such losses are made up to him, the respondent will be as fully secured as -if he was allowed to realize the full value of the property by an immediate sale thereof. (Grow v. Garlock, 29 Hun, 598; approved in Werner v. Tuch, 119 N. Y. 632.)

It would be an unreasonable and forced construction of tbe statute to presume that it intended to secure any less protection than is above' stated. But in order to secure to the respondent that protection, the appellant must be 'in possession of the land ordered to be sold. He is not required to give security that no one will commit waste during' the appeal, but the provision is that he will not commit any waste “ while in possession of the property.” The phrase “ while in possession of the property” evidently was intended to mean SO' long as he continues in the possession, or until he is forced by the final judgment and sale to surrender it. The statute is. framed upon the assumption that he is in possession, and that ■he is the one from whom waste may be apprehended. Such a construction secures tbe protection which the statute evidently designed. But if a party not in possession, one for instance who-has a mere lien by judgment upon the mortgaged premises, chooses to defend against a foreclosure and to appeal from court to court, ■and may stay the sale by simply giving an undertaking that he will not commit any waste, no protection, whatever, is secured to the mortgagee. In short, unless the statute is construed to apply only to cases where the appellant is in possession, it utterly fails to give any security whatever against waste of the premises, and becomes an absurdity. Moreover, we think that the provisions of the section do not apply to those cases where the judgment directs the sale of both real and personal property. The provision of the statute is that if the judgment directs the sale of real property, or the delivery of the possession of real property, its execution may be stayed by giving an undertaking that will secure the respondent from loss by waste committed thereon, and also secure to him the value of its use and occupation during the pendency of the appeal. The security thus provided for is directed to the protection of the real property only, and a reasonable construction, therefore, is that it was intended to apply to those cases where real estate alone is the subject-matter affected by tbe judgment. Such a construction does not do violence to the phraseology of the section. A judgment directing the sale of real property is a mandate of the court affecting one kind of property only. A judgment directing the sale of both real and personal property is of another kind and may well be placed in a different category. And provisions which would render adequate security for a stay, in the one case, would be entirely inapplicable' in the other. The construction for which the appellants’ counsel contends, to wit, that whenever any provision in a judgment directs the sale of real estate, the execution of the entire judgment, may be stayed by merely giving security that will protect against loss arising from a delay in the sale of such real estate, would, in very many cases, deprive the respondent of any security whatever, and work very grievous injury. Suppose the assets of a co-partnership, consisting of a very trifling amount of real estate, and a very large and valuable amount of personal property, is in the custody of a receiver, and is about to be distributed by a court of equity, can it be that, under the provisions of this section, the 'execution of a judgment directing the receiver to sell and dispose of all the assets in his hands can be stayed by such an undertaking as is therein provided for? Wo think not. Very many other instances might be suggested in which the construction of the section for which the appellants contend would manifestly be injurious and utterly inapplicable. In the case before us the judgment directs not only the sale of the real estate, but of contracts made with the village of Saratoga Springs, both by the mortgagor and the receiver, also rights of action arising out of such contracts, and from bids for contracts made by him, and debts due to the mortgagor and to the receiver; and, in short, not only is the real estate of the mortgagor directed to be sold, but the whole business now in operation and connected therewith. Evidently the undertaking provided for by this section furnishes no security whatever for loss liable to accrue from a postponement of the sale of such property. The purpose of the section is to secure to the respondent indemnity against loss sustained by reason of the delay caused by the appeal. Its. language is not so precise and explicit as to force the construction that it was intended to apply to cases where it would utterly fail to secure that indemnity. It cannot be supposed that such was its intention, and, therefore, it should not be so construed. The appellant, in a case like this, is not without a remedy. He may always, apply to the court for a stay, and the court has always power to-grant one upon such terms as the equities of each particular ease require. (Genet v. Pres., etc., D. & H. C. Co., 113 N. Y. 472.)

Ve conclude tliat the undertaking given did not stay the plaintiff’s right to proceed with the sale as the judgment directed.

As to the claim that the property was sold for an inadequate price, the facts before us do not sustain it. There is no evidence as to what was the real value of the property sold. The affidavit of Reynolds, to which the appellants’ counsel refers us as evidence on that subject, was made in January, 1894, and is to the effect that the net earnings of the mortgagor are $35,000 per year. That might he true and yet the property sold by the referee not exceed in value the price obtained. What those net earnings were derived from does not appear, and evidently refer to a condition existing more than two years before the sale. And the statements of Mr. Taylor as to what the committee were willing to bid is not such evidence of value as should he required in order to vacate this sale. There is no evidence before ns that any greater sum can be procured on another sale; no statement that any one has offered more ; no direct statement whatever by any one of the actual value of the property sold; and on such facts we cannot say that the juice jirocured was an inadequate one.

The orders ajipealecl from must he affirmed, with ten dollars costs and disbursements.

All concurred, except Landon, J., not sitting, and Putnam J., not voting.

Order affirmed, with ten dollars costs and disbursements.  