
    ANN FORD, as Administratrix of OWEN FORD, Deceased, Respondent, v. JEREMIAH C. LYONS, Appellant.
    
      Practice — the court cannot shorten the time within which an appellant may file and setme copies of the printed appeal papers — nor ean it terminate a stay created by the giving of an undertaking as provided by section 1352 of the Code of Civil Procedure.
    
    On April 17, Í886, an order was made requiring the appellant to file with the clerk of the General Term, and to serve on the respondent’s attorney, the copies of the printed case required by the rules on or before the 23d day of April, 1886, and providing that upon his failure so to do the stay created by the undertaking, given upon the appeal and duly approved and filed, should cease. The next term of the General Term of the First Department was appointed to be held on May 3, 1886.
    Held, that the Special Term could not deprive the appellant of the right, conferred by General Rules Nos. 40 and 41, to serve his papers at any time before April twenty-fourth, that is eight days before the term, nor could it terminate the stay created by the giving of the undertaking.
    Appeal from an order directing tbe appellant to print, file and serve tbe case on appeal from a judgment.
    
      Alexa/nder Thain, for tbe appellant.
    
      James P. Wiemtmn, for tbe respondent.
   Churchill, J.:

Tbe order appealed from, made April 17, 1886, required tbe appellant to file with tbe clerk of tbe General Term, and to serve on tbe respondent’s attorney, tbe copies of the printed case required by tbe rules on or before tbe 23d day of April, 1886, and upon bis failure so to do provided that tbe stay, created by the undertaking given upon tbe appeal and duly approved and filed, should cease. The next term of the General Term of tbe First Department was appointed for May 8, 1886. Ry Rules 40 and 41 tbe appellant bad till April twenty-fourth, or eight days before tbe term, in which to file and serve tbe papers. Tbe Special Term could not deprive the appellant of tbe right given him by tbe rules. (Code of Civ. Pro., § 17; Batter shall v. Davis, 23 How., 383.)

Such shortening of tbe appellant’s time was not necessary to protect tbe respondent, since if tbe former failed to serve the papers within the time required by tbe rules, tbe latter could move on short notice to dismiss the appeal. (General Rule 41; 3d General Term Rules, First Dept., adopted Jan. 4, 1878.) The stay created by giving a proper undertaking on appeal to the General Term was-given by the Code, and was beyond the power of the Special Term to terminate. (Code of Civ. Pro., § 1352.)

The order appealed from should be reversed, with usual costs and disbursements.

Beady, P. J., and DaNiels, J., concurred

Order reversed, with ten dollars costs and disbursements.  