
    George W. Lane et al., Resp’ts, v. Elias C. Humbert, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed May 7, 1890.)
    
    Appeal—Deposit in lieu of undertaking.
    A deposit of money in lieu of an undertaking on appeal in a less sum than is required by § 1326 of the Code is inadequate to perfect the appeal, but this is an irregularity which may be cured.
    Motion to dismiss appeal for want of prosecution and for irregularity.
    
      Hascall, Clark & Vanderpoel, for motion; P. C. Taiman, opposed.
   Per Ouriam.

Section 1326 of the Code provides that, to render an appeal effectual for any purpose, the appellant must give a written undertaking to the effect that he will pay all costs and damages which will be awarded against him on the appeal, not exceeding $500. This the appellant did not do, but instead1 procured an order from a judge of the city eerert staying all proceedings on the part of the respondents; pending the appeal to this; court upon the deposit of $100 with, the derk of that, court in-lieu of the required undertaking. Section 1806 of the CTbde provides that where- a deposit of money is made1 instead of security, such deposit must be in a sum equal to the: amount for which the undertaking is required to- he given. Therefore the deposit is inadequate, and the appellants’ have failed in that respect to perfect, their appeal as required! by law. But thís&a'üúriegularity which may be cured. J

The appeallant also1 failed toi serve the papers* required within: the time prescribed by therules and practice'of thikoourt, although we think his counsel,- fot his- affidhvit,, has- soffibiéntiy* excused hislaches in this respect.

_ The motion to dismiss'the appeal will therefore b® denied, prcnvided the appellant applies’at-special term on or. before the 9th instant for leave to perfect his1 appeal as required’, by law;,and stipulates to argue the said appeal at this, general term- cm: or before; the 15th instant; otherwise' the1 appeal" will Be*- dismissed^.with' costs. Ten dollars costs' of" tins; motion tro the: respondents; tm abide the event

XiArremore, Oh. J., and Bookstaver;. concur.*.  