Opinion
November Term, 1897.
T.M. Tyng, for the appellant.
Franklin Bien, for the respondent.
The judgment of the Special Term in this case was affirmed by this court on the 11th of May, 1896, and a copy of the judgment of affirmance, with notice of its entry, was served on that day, so that the time for the appellant to appeal to the Court of Appeals expired on the 11th of May, 1897. The appeal was taken to the Court of Appeals on the 5th day of June, 1896, but no undertaking to perfect the appeal was ever given. In May, 1897, this motion was made for a stay of proceedings pending the appeal to the Court of Appeals, and such a stay was granted upon the giving of a bond in the sum of $1,500, and from so much of the order this appeal is taken. No undertaking having been given upon the appeal to the Court of Appeals, the notice of appeal was not effectual for any purpose. (Code Civ. Proc. § 1326.) It can only be made effectual, if at all, under the provisions of section 1303 of the Code. Until the court has permitted the defendant to perfect the appeal by the service of an undertaking, there is no power in this court to stay the proceedings upon appeal, because there is no appeal pending. ( Architectural Iron Works v. City of Brooklyn, 85 N.Y. 652.) The stay given by section 1331 of the Code, under which this order was made, does not exist until a perfected appeal has been taken, by virtue of which the case may be heard in the Court of Appeals. As that has not been done here, the order was erroneous, and so much of the order as is appealed from is reversed, with ten dollars costs and printing disbursements, and so much of the motion denied, with ten dollars costs.
VAN BRUNT, P.J., BARRETT, WILLIAMS and PATTERSON, JJ., concurred.
Order, so far as appealed from, reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.