
    Marcus M. Beeman, Resp’t, v. George A. Banta, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed March 12, 1889.)
    
    Appeal—Security to stay execution—When appellant will not be ALLOWED TO SUBSTITUTE THEREFOR SECURITY FOR COSTS.
    An appellant to the court of appeals who has stayed execution hy filing an undertaking securing the judgment will not afterward he allowed to-substitute therefor an undertaking for costs only.
    Motion for leave to file new undertaking for costs only.
    
      William O. Tracy, for motion; John II. Parsons, opposed.
    
      
       See 45 Hun, 598, mem.
      
    
   Per Curiam.

We refuse the request of the defendant to be allowed to file an undertaking for costs only, because by virtue of his original undertaking the plaintiff has been stayed from enforcing his judgment ever since the appeal to this court was taken.

The appellant ought not to have the benefit of such stay up to the present time, and then by the filing of an undertaking for costs only, retain his appeal and leave the plaintiff- in a possibly much worse condition towards obtaining the fruits of his judgment than he would have been in had the right of enforcement continued from the time of its-entry.

All concur.  