Opinion
April 16, 1937.
Order dated March 23, 1937, denying defendant's motion to require a return of securities deposited under an undertaking made pursuant to an order staying the issue of execution pending appeal from a judgment, reversed on the law, with ten dollars costs and disbursements, and the motion granted, without costs. Assuming, without deciding, that the undertaking under which the deposit was made was a statutory form of undertaking and, therefore, had infused in it the effect of the statutes regulating the stay of execution pending an appeal, the defendant was entitled to the return of the bonds deposited as a matter of right, since the security thus given would not be available for the payment of any new judgment obtained as a consequence of the plaintiff's availing himself of the opportunity for a new trial accorded to him on the reversal of the judgment by the Appellate Division. ( Jackson v. Lawyers' Surety Co., 95 App. Div. 368; affd., 184 N.Y. 521, on opinion below; Tripi v. United States Fidelity Guaranty Co., 237 App. Div. 866.) Appeal from order dated March 1, 1937, dismissed. The decision in respect of the order of March 23, 1937, renders the appeal from this order academic. Hagarty, Carswell, Davis, Adel and Close, JJ., concur.