
    PHILIP QUINLAN, Appellant, v. JEREMIAH P. RUSSELL, Respondent, Impl’d., Etc.
    
      Appeal, undertaking on—when defendant claiming interest in litigated fund, not permitted to appeal from judgment from which plaintiff and co-defendant do not appeal, without filing bond for payment of judgment, ete., fund not being in court's custody.
    
    Before Sedgwick, Ch. J., Freedman and Russell, JJ.
    
      Decided April 3, 1882.
    Appeal from an order staying proceedings pending an appeal to the court of appeals.
    The plaintiff, as the assignee, through several mesne assignments, from one Terence Smith, sued to recover from the city a balance of $700, due Smith for work done upon the Ninth avenue. The defendant Russell, making a claim to the sum of $544.60 out of the fund, because he had furnished to Smith the materials, &c., for the work done by him, was made a party defendant. The action was tried at special term, and judgment was rendered for the plaintiff, against the city, for the sum of $700, and $76.18 costs, and against the defendant Russell, finding that he was not entitled to any lien upon the fund, and for costs. The city did not appeal. The defendant Russell did appeal to the general term, where the judgment was affirmed with costs. After affirmance at the general term, the defendant Russell made this motion for a stay upon the plaintiff and upon his co-defendant, the city, and it was ordered, upon his filing the usual bond to perfect appeal to the court of appeals, and for the judgment for costs rendered against him at special and general terms. No bond of any kind has been given for the payment of the amount of the j udgment, ordered to be paid by the city, nor has the amount been paid into court.
   The court at General Term held :

“ That the defendant has the inherent power to stay execution upon its judgment, without an undertaking •on the part of appellant, is not open to question (Granger v. Craig, 85 N. Y. 619). We think, however, the court ought not to exercise such power except in those cases where the respondent is protected by the fact that the property or money for which he has a judgment, is within the custody or control of the court. In the case at bar, the plaintiff has a money judgment against a party who has not appealed. The defendant claims a portion of the money. It has not been paid into court, nor is it in any way within the control of the court. That the defendant, the city, is responsible and probably will be at the determination of the appeal in the court of appeals, does not take the case out of the usual rule. If the money were paid into court, we should think it necessary to require from the defendant Russell a bond for the payment of accruing interest pending the appeal. As it is not paid into court, we think the defendant, Russell, ought not to have a stay without giving a bond for the payment of the amount of the judgment with interest.”

J. H. Strahan, for appellant.

L. L. Kellogg, for respondent Russell.

Opinion by Russell, J.; Sedgwick, Ch. J., and Freedman, J., concurred.

Order reversed, with costs and disbursements; but defendant permitted, under section 1303, to file a proper bond within ten days after entry order.  