Opinion
May 21, 1926.
Appeal from Supreme Court.
J.E. Wilkinson, for the motion.
Edward B. Levy, opposed.
Present — CLARKE, P.J., DOWLING, FINCH, MARTIN and WAGNER, JJ.
The defendant served and filed a notice of appeal from both the order and judgment, and an undertaking on appeal. While the notice of appeal was good with respect to the order, it was of course of no effect with respect to the judgment, which was rendered as upon defendant's default. (Civ. Prac. Act, § 557.) Consequently, the effective appeal being only from the order denying the motion to open default, the filing of the undertaking did not stay execution pending said appeal. Such a stay can be obtained only by motion. This is a motion for such a stay.
The motion should be granted so far as to permit defendant to serve an amended notice of appeal from the order, and staying the enforcement of the judgment pending the determination of the appeal from said order, upon condition that within ten days defendant file an undertaking, with sufficient sureties, to secure payment of the judgment, with interest and costs, including costs of the appeal herein, in the event of affirmance of said order appealed from, or any judgment hereafter recovered herein by the plaintiff against the defendant.
Motion granted so far as to permit defendant to serve an amended notice of appeal from the order, and staying the enforcement of the judgment pending the determination of the appeal from said order, upon condition that within ten days defendant file an undertaking, with sufficient sureties, to secure payment of the judgment, with interest and costs, including costs of the appeal herein, in the event of affirmance of said order appealed from, or any judgment hereafter recovered herein by the plaintiff against the defendant.