
    Smith Davis et al., Plaintiffs, v. Cornelius R. Duffie et al., Defendants.
    1. An appeal to the General Term, from a judgment at the Special Term, under section 348 of the Code, may be taken without giving any undertaking. The undertaking is only necessary except for the purpose of staying proceedings.
    2. A motion to modify a judgment of the Special Term, or to excuse the literal performance of its requirement, must be made at the Special Term, and not at the General Term.
    3. Under a decree that the plaintiff is entitled to redeem lands from a mortgage, and to have a conveyance thereof with covenants against the grant- or’s acts, upon payment of a specified sum, the plaintiff is not bound to pay the redemption money unless the defendant complies with the directions of the decree respecting a conveyance. Hence the inability of the defendant to convey, or to give a covenant against his own acts which will not be broken in its inception, is not a ground for granting plaintiff leave to pay the money into Oourt instead of tendering it to defendant.
    (Before Bosworth, Ch. J., and Hoffman, Woodruff, Moncrief, Robertson and White, J. J.)
    Heard, October 12;
    decided, October 19, 1861.
    Motioh to quash an appeal, and for leave to pay into Court, money, which a judgment allowing the redemption of real property directed plaintiffs to pay to one of the defendants.
    This action was brought by Smith Davis and Oliver Davis, against Cornelius R. Duffie, Gerardus A. 0. Van Beuren, Jonas Conklin and Thaddeus Sherman, Jr., seeking to redeem certain real estate in the City of Hew York, from a mortgage. Judgment was entered at Special Term, allowing plaintiffs to redeem certain lots from the defendant Duffie, by paying him a specified sum; and directing Duffie to convey the premises to the plaintiffs. The terms of the judgment in this respect were, “that the plaintiffs are entitled to redeem, from the mortgage mentioned and described in the complaint in this action, all and singular the lands and premises hereinafter mentioned and described, and are entitled to have and receive from the defendants, Cornelius R. Duffie” (and others named,) “a good and valid deed of conveyance, with covenants by them respectively, against their own acts, of the mortgaged premises now possessed by them respectively; upon payment to them, in the proportions hereinafter mentioned, of the amount due for principal and interest upon the said bond and mortgage mentioned in the complaint; and also all sums paid by them respectively for taxes- and assessments, (with interest thereon,) upon the said premises.”
    The defendants desiring to appeal from the judgment, moved for time to make a case, and for a stay of proceedings pending the appeal, and obtained an order that if the defendants or either of them should appeal in due season, proceedings against the defendants so appealing should be stayed, upon their severally executing undertakings to the effect prescribed by the order, and, also, upon their respectively executing and delivering to the Clerk of the Court, the instruments required of them by the judgment appealed from.
    The plaintiffs, on affidavits alleging that the defendant Duffie, had not complied with the conditions of the order,
    ' and that he had given no undertaking upon serving his notice of appeal; and further alleging that he was irresponsible, and that he had suffered the premises to be sold for taxes and assessments, and the time to redeem therefrom to expire, and that he no longer had possession or control of the premises and could not convey them, now moved the Court at General Term, upon notice to the defendant Duffie, for an order:
    1. To dismiss the appeal by defendant Duffie, because no undertaking was filed or served with the notice of appeal.
    2. For an order to permit the plaintiffs to bring into Court the money (which, by the decree in the action, they were directed to pay or tender to Duffie, in redemption of the mortgaged premises), to be held until Duffie should, on his part, comply with the decree, by conveying the premises to the plaintiffs by an effectual deed.
    
      Solomon B. Noble, for the motion.
    I. Section 334 of the Code states the prerequisites of an appeal, and an appeal taken without giving the undertakings and complying therewith, is ineffectual for any purpose. (Langley, &c., v. Warner, 3 How. Pr. R., 363 ; 1 Coms., 606.)
    TT. This is not alone applicable to the Court of Appeals, for section 348 applies these prerequisites to the present appeal, at least so far as the execution of the judgment is concerned; and the order in this case makes it applicable.
    III. The judgment itself directs the conveyance of these lots by good warrantee deed, with covenants against grantor, and the order indicates the directions of the Court. The defendant Duffie has not complied with the one or the other.
    IV. If the Court will allow the appeal to stand, it is only on such terms as may be just. (Sec. 327.) In this case the covenant would be broken as soon as the defendant Duffie signed the deed.
    
      E. B. Hensdale, opposed.
   By the Court—Woodruff, J.

First. So far as the application seeks a dismissal of the appeal, it is founded upon a misapprehension. It is urged in reliance upon the 334th and 340th sections of the Code, which provide that to render an appeal effectual for any purpose, a written undertaking must be executed by at least two sureties, and that the undertaking shall be served with the notice of appeal.

The 334th section relates exclusively to appeals to the Court of Appeals.

The present appeal is from the Special to the General Term, under section 348. Such an appeal may be taken without giving any undertaking, and it will be so far effectual as to bring the judgment of the Special Term under review.

To render the appeal a stay of proceedings, the appellant must either give such an undertaking as is required to stay the proceedings in case of an appeal to the Court of Appeals, or he must obtain an order that such appeal shall stay the proceedings, on such terms as to security as the Court may direct; but the appeal may be taken without security, and it will be regular, and will entitle the appellant to review the judgment in the General Term.

The respondent is, therefore, not entitled to an order dismissing the appeal. •

Second. The second branch of the motion is liable to various objections:

1st. The General Term has no jurisdiction to grant it; it is an original motion and must be first made at Special Term; it seeks in effect to modify the judgment. This can only be done at General Term on the hearing and decision of the appeal from the judgment, and cannot be done on motion. If it be regarded as asking that the plaintiffs be excused from the performance of the judgment according to its literal requirement, or until the defendant performs on his part, that relief, if it were necessary to the plaintiffs’ protection, should be sought at Special Term and not here.

But there appears to us to be no just occasion for making the motion anywhere.

The plaintiffs appear to have acted on the idea that they are bound to part with their money before the defendant complies with the judgment on his part. We think this is not so. All the plaintiffs are bound to do is to tender performance and demand performance by the defendant. Such performance on both sides must be cotemporaneous. The plaintiffs, therefore, run no hazard. If the defendant do not perform he is not entitled to take the money.

Whether, therefore, the defendant has it in his power to give an effectual deed;

Whether he is bound to give a deed conveying anything but such title or interest as is now vested in him;

Whether, as mortgagee in possession, he was bound to pay the taxes and assessments which have not been paid ; or,

Whether the plaintiffs, (mortgagors,) if they have suffered the property to be sold for taxes or assessments, do not bear the loss;

And whether the judgment below does, in fact, require the defendant Duffle, to do more than execute a deed with covenants against his own acts ;

It is not necessary to discuss or decide here.

The motion should be denied, with $10 costs.  