
    COURT OF APPEALS.
    Dresser Appellant agt. Brooks, Respondent.
    
      Service of notice of justification of sureties, in an undertaking, when made by mail, should be double time, ten days.
    If such service would carry the time of justification beyond the ten days required by § 341 of the Code, it should either be made personally, or a judge’s order obtained extending the time.
    The non payment of costs of the dismissal of an appeal, is ground for staying proceedings on a second appeal in the same cause, until such costs are paid.
    On the 7th of June the respondent excepted to the sufficiency of the sureties in the undertaking, and served notice of the exception by mail. The notice was received by the appellant on the 10th, who on the same day gave notice by mail that the sureties would justify on the 17th, and the sureties did justify on that day. The respondent did not attend the justification, because the notice of justifying, being served by mail, should have been a notice of ten days (Code, § 341, 412). A former appeal in the cause had been dismissed with costs (Dresser v. Brooks, 2 Comst. 559); and the costs had not been paid.
    H. Denio, for the respondent,
    moved to dismiss the appeal, because there had been no regular justification of the sureties. IT the appeal should not he dismissed, he asked a stay of proceedings on the appeal until the costs of the former appeal shall be paid. He cited 1 John. Cas. 247; 3 Cow. 380; 4 Wend. 216.
    H. Dresser, Contra,
    
    said the sureties were hound to justify within ten days after the exception (Code, § 341); and in his notice of justifying he had given all the time (seven days) that remained to him after notice of the exception was received.
   Bronson, Ch. J.

As the notice of justifying was served by mail, it should have been double time or ten days. If the appellant had not sufficient time to give regular notice by mail, he should either have caused personal service to he made, or should have obtained a judge’s order enlarging the time. As the notice was irregular, the justification amounts to nothing. But there is ground for granting relief, and the appeal will not be dismissed if the sureties justify within thirty days, and the appellant pays the costs of the motion.

If the sureties justify, all further proceedings on the appeal should be stayed until the costs of the former appeal are paid. Two successive appeals in the same case, like two actions for the same cause, tend to vexation; and we think this branch of the motion should be granted.

Ordered that the appeal he dismissed with costs, unless the sureties in the undertaking justify, upon regular notice, within thirty days, and the appellant pays ten dollars costs of the motion. If the sureties justify, then all further proceedings on the appeal are stayed until the costs of the former appeal are paid; and if they are not paid within sixty days from this time, the respondent may enter an order dismissing the present appeal, for want of prosecution, with costs.  