
    McMAHON a. ALLEN.
    
      Supreme Court, First Distinct ;
    
    
      Special Term, November, 1861.
    Appeal from Order granting a New Trial.—Stay of Proceedings.
    On appeal from a judgment, the general term ordered a new trial, and an appeal was taken from the order to the Court of Appeals. The appellant gave security on appeal in $250, as required by section 334 of the Code. Sdd, that this did not operate as a stay of proceedings.
    The only way in which a stay of proceedings can be procured in the court below, after an order for a new trial has been made by the general term, is by a motion directly for that purpose.
    Motion to strike cause from circuit calendar for irregularity.
    The facts are sufficiently stated in the opinion.
    
      D. McMahon, for the motion.
    —I. The appellant (being the plaintiff) complied with the requirements of subdivision 2 of section 11 of the Code when he took his appeal and gave the stipulation. The undertaking, under section 334, was. all that was required to make his appeal effectual. .
    H. A careful comparison of sections 334-339 of the Code will prove that on an appeal from an order preceding a new trial, all the appellant is required to give as security is the undertaking under section 334. Section 335 applies to appeals from judgments directing the payment of money. The Code is silent on the subject of appeals from orders.
    III. The defendant, who succeeded in reversing the plaintiff’s judgment, has no fixed- right to costs until the new trial is had arid judgment obtained. Therefore, no security can be given until that event happens, for there is no method whereby his costs may be fixed.
    
      Matthews & Swan, opposed.
    —I. This motion is premature, as the act of the defendant is not prejudicial to the plaintiff, and it will be time enough to move after the defendant has taken a default. (Ford a. Turner, 5 Duer, 686.)
    II. The Code does not provide for a stay, but leaves it to the discretion of the court, upon a proper application made for that purpose. 1. Section 334 provides- an undertaking to pay only costs of appeal (that is, .from the order), and is necessary to the 'validity of the appeal. 2. If the Court of Appeals affirm the judgment of this court, the defendant will have judgment for all the costs in the cause, but no security. 3. Had the defendant appealed, he could not have stayed proceedings without security to pay all.these costs. . 4. Sections 335-339 refer only to judgments. 5. The distinction between appeals from judgments and appeals from orders is fully recognized by the Code in sections 11, 323, 330, 331, 334. So, also, sections 335-340 speak only of judgments. 6. Section 342 provides that, in cases not provided for in sections .345 to 349, the giving the undertaking for costs (section 344) should stay all proceedings upon a judgment.
    III. The case in 10 How. Pr. (Curtis a. Leavitt), referred to by the appellant, has no application to the case of an appeal from an order. It was a special case of an appeal from a judgment, and not meant to conflict with the opinions of the court in previous cases of appeals from orders. Inasmuch as the courts held it was not within section 345, the provisions of section 344 made the appeal- a stay of proceedings.
    IY. In the cases exactly similar, this court and others have held that the appeal from an order was no stay. (Clerke, J., Forbes a. Oakes, 2 Abbotts’ Pr., 120 ; Mitchell, J., Story a. Duffy, 8 How. Pr., 488 ; Gen. T., Hicks a. Smith, 4 Abbotts’ Pr., 285 ; order for new trial, Bacon a. Reading, 1 Duer, 622.) 1. The same cases hold the proper practice is, to make a motion for a stay, which can be had upon proper terms. 2. All the defendant would ask is, security for any judgment that may be rendered against the plaintiff in the Court of Appeals. Upon this the defendant would consent to a stay, of proceedings.
   Ingraham, J.

—The general, term in this case reversed the order of the special term, and ordered a new trial.. From this order the plaintiff appealed to the Court of Appeals, and gáve an undertaking in $250, under section 334 of the Code.

. The defendant, notwithstanding such undertaking being filed, noticed the cause for trial again under the order .of the general term. The plaintiff now moves to strike the cause from the calendar, upon the ground that the undertaking filed by him. stayed all proceedings for a new trial until the decision of the • Court of Appeals.

There is no provision in the Code providing for such a case as the present,—prescribing directly the mode in which proceedings in the court below are to be stayed,—nor does the act of 1857, allowing an appeal in such a case, make any'such provision. Section 334, under which this undertaking is given, however, was not intended to give a stay in any case on filing the undertaking in $250. It is not given as a security for any just claim, but to provide for the costs and damages which may be awarded against the appellant on the appeal, and no appeal is valid without it, whatever other security may be given for the claim. In Valton a. National Loan Fund Life Assurance (19 How. Pr., 515), Hr. Justice Gould held that proceedings on such an appeal did not stay the entry of judgment in the court below, in pursuance of the order appealed from, and the Common Pleas adopted a similar rule in Tiers a. Carnahan (3 Abbotts’ Pr., 69).

And the other sections, from 334 to 343, which apply to a • stay of proceedings, are confined to cases in which a judgment is recovered, and not to an appeal from an order., I conclude, therefore, that the only way in which, in such a case as this, the proceedings in the court below can be stayed after an order for a new' trial has been made by the court, is by a motion directly for that purpose in this court. On such an application, the court can impose such terms as to security as will be sufficient to protect the respondent against loss, if in the Court of Appeals there should be a decision adverse to the decision of the general" term. -Such is the practice on appeals from the special to the general term, where no judgment is entered; and in the absence of any provision in the Code, the same practice should, from analogy, be followed.

The motion to strike the cause from the circuit calendar must be denied. Defendant’s costs, $10—to abide event. 
      
       Reported, 12 Ante,. 275.
     