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the time allowed by law for taking such appeal [or, making such motion]; and that M. N., the heir [or, devisee — or, executor
- or, administrator — of the said Y. Z.], desires to appeal [or, move therefor); and on proof of due notice of this motion given to [the plaintiff] A. B., and after hearing M. T., of counsel for said M. N. and A. T., [or, and no one appearing for plaintiff] in opposition; Now, on motion of M. T., attorney for said M. N.:
ORDERED, that said M. N., as heir [or, devisee — or, executor – or, administrator] of the said Y. Z., be and he hereby is allowed to take an appeal [or, to move for said relief] at any time before the day of , 19 .
Enter: [signature of judge by initials of name and title.]
II. SECURITY AND STAY.
FORM No. 2085. Undertaking for costs, on appeal from judgment or order to the Court of
Appeals.24 [Title of court below and action.]
[If from judgment:] WHEREAS, on the day of 19, the above-named (plaintiff] recovered in the Court a judgment against the above-named defendant, [affirming] a judgment, for dollars [or, for recovery of possession of certain personal property — or otherwise as the case may be] and for the sum of dollars costs.
[Or if from order:] WHEREAS, on the day of 19 , an order of the Court was entered herein [identify it, if necessary, by character].
AND WHEREAS, the said [naming appellant], feeling aggrieved thereby, intends to appeal therefrom to * the Court of Appeals [and if the party adverse to appellant has died, add: And whereas, said died on or about the day of , 19 ]: **
Now, THEREFORE, we,20 M. N., of [specifying residence) and 0. P., of [specifying residence), do hereby, pursuant to the statute, jointly and severallyar undertake † that the appellant will pay
24 This is necessary to perfect the appeal, and does not operate to stay the judgments below. Code Civ. Pro., § 1326.
25 The judgment should be described in the undertaking sufficiently to enable it to be identified as the subject of the instrument. McElroy v. Mul. ford, 128 N. Y. 303.
26 In this case there must be two
or more sureties, unless the one is a fidelity or guaranty company. Code Civ. Pro., 88 811, 1334.
It is not essential that appellant also sign. $ 811; Vol. I, p. 455.
27 The inadvertent omission of these words will not affect the liability of the sureties. Denike v. Denike, 61 App. Div. 492, 70 N. Y. Supp. 629.
all costs and damages which may be awarded against [him] on said appeal, not exceeding five hundred dollars.28 [Date.]
[Signatures.] [Acknowledgment as in Form 822, p. 1176 of this volume; affidavit of sufficiency, as in Form 823, p. 1176; approval not necessary; justification, if required, as in Volume I, p. 467, etc.]
[Notice of filing, as in Form 825, p. 1177 of this volume.] 29
FORM No. 2086. Undertaking to effect stay, on appeal to Appellate Division, or Court of
Appeals, from money judgment or order. [As in Form 2085, adding at the end:] and also in like manner30 undertake that if the judgment (or, order] appealed from, or any part thereof, is affirmed, or the appeal is dismissed, said appellant will pay the sum recovered31 or directed to be paid by the judgment [or, order], or the part thereof as to which it is affirmed32 [or in case of instalments, as in next Form from the t to the $]. [Date.]
[Signatures.] [Authentication, etc., as directed under Form 2085.] [Serve copy, with notice of filing, as in Form 825, p. 1177 of this volume.]
FORM No. 2087. Undertaking to stay, pursuant to order, on appeal from money order or judge
ment (including those payable in instalments, or for alimony, etc.).33
[As in Form 2085 to the **, continuing:] and the court having made an order that all proceedings on the part of the (plaintiff] be stayed pending the said appeal, on the [defendant] giving an undertaking executed by [the defendant34 and — two] suificient sureties, conditioned as herein provided :
28 Such an undertaking is limited to the costs accruing after the appeal to the Court of Appeals. Bennett t. Am. Surety Co., 73 App. Div. 468, 77 N. Y. Supp. 207.
29 Serve copy, with notice of filing with notice of appeal, or before ex piration of time to appeal. Code Civ, Pro., 8 1334.
30 The omission of the words “in like manner ” would not affect the joint and several liability. Donovan 0. Clark, 76 Hun, 339, 27 N. Y. Supp. 686.
31 As to separate recoveries against several defendants, see Er parte French, 100 U. S. 1.
Proceedings under a money judg. ment against one defendant will not be stayed upon an appeal by a codefendant, without an undertaking sufficient to cover the amount of the money judgment. Quinlan r. Russell, 48 N. Y. Super. Ct. 537.
32 The court may limit the security to not less than $50,000, when it would otherwise exceed that sum. Code Civ. Pro., 8 1312; Nat. Cont. Co. 1, Hudson Riv. Water Power Co., 47 Misc. 491, 94 N. Y. Supp. 187, 34 Civ. Pro. Rep. 315.
33 See Post r. Doremus, 60 N. 1. 371. Compare N. Y. Code Civ. Pro., 8 1310. For order, see Form 2102.
Now, THEREFORE, we, M. N. [specifying residence] and 0. P. [specifying residence], do hereby, pursuant to the statute and said order, jointly and severally undertake that the appellant will pay all costs and damages which may be awarded against cn said appeal, not exceeding five hundred dollars; and also, in like manner, undertake that if the judgment [or, order] appealed from, or any part thereof, is affirmed, or the appeal is dismissed, the appellant will pay the sum recovered, or directed to be paid by the judgment [and, if the appeal is to the Court of Appeals from affirmance at Appellate Division, add: and the judgment — or, order — affirmed by the judgment — or, order -appealed from], or the part thereof as to which it shall be affirmed (or in case of a judgment or order for instalments, † will pay each instalment of the sum recovered by said judgment or, order — which shall become payable pending the appeal, or the part thereof as to which the judgment — or, order — shall be affirmed, not exceeding the sum of dollars $]. [The folloving clause is not to be inserted unless required by order of the court, as a condition of stay: and all damages which shall be awarded against the appellant upon the appeal, by the determination of the Appellate Court, or by the court below, pursuant to the determination of the Appellate Court.] [Date.]
[Signatures.) [Authentication, etc., as directed under Form 2085.] [Notice of filing as in Form 825, p. 1177 of this volume.]
FORM No. 2088. Undertaking to stay, on appeal from a judgment or order for possession of
personal property.35 [As in Form 2085, inserting at end, before signatures:) and also in like manner undertake in the sum of dollars36 that the appellant will obey the direction of the appellate court upon the appeal.
34 See Vol. I, p. 455.
Whether on appeal from a judg. ment or order requiring both the pay. ment of money and the delivery of property security is in all cases required. Compare Elliott v. Buckland, 37 How. Pr. 71: Bank of Havana t. Moore, 8 Wkly. Dig. 198.
Where the stay is discretionary, the
court may, if the property be perishable or depreciable by time and use, add a provision indemnifying the respondent for the use and depreciation in case the judgment is affirmed. Read v. Potter, 11 Abb. Pr. 413.
36 The sum must be fixed by the court, or a judge thereof. Dady, r. O'Rourke, 65 App. Div. 465, 72 N. Y. Supp. 827.
FORM No. 2089. Undertaking to stay, on appeal from judgment for possession of real prop
erty.37 [As in Form 2085, adding at end: and also in like manner undertake * that the appellant will not, while in possession of the property, commit, or suffer to be committed, any waste38 thereon ; and that, if the judgment or order is affirmed, or the appeal is dismissed, [in case sale is ordered, and there is a deficiency upon a sale] he will pay the value of the use and occupation of the property, or the part thereof, as to which the judgment or order is affirmed,39 from the time of taking the appeal until the delivery of the possession thereof,40 pursuant to the judgment or order, not exceeding the sum of dollars. 41 [Date, authentication, etc., as directed under Form 2085.]
[Notice of filing as in Form 825, p. 1177.]
FORM No. 2090. Undertaking to stay, on appeal from judgment in foreclosure by one adjudged
liable for deficiency.42 [As in Forms 2085, 2089, to the end, continuing:] * that if the judgment is affirmed, or the appeal is dismissed, the appellant will pay any deficiency which may occur upon the sale, in discharging the sum to pay which the sale is directed, with interest and costs, and all expenses chargeable against the proceeds of the sale, not exceeding dollars [to be fixed by a judge of the court below].
[Date, authentication, etc., as directed under Form 2085.]
37 Code Civ. Pro., § 1331, as amended in 1903. The section only applies where the appellant is in pos. session of the property, or liable for a deficiency. See Com. Bank r. Foltz, 35 App. Div. 237, 54 N. Y. Supp. 764; Sternbach 6. Friedman, 29 App. Div. 480, 51 N. Y. Supp. 1068.
On appeal from final judgment for dower, there must also be an order for stay. N. Y. Code Civ. Pro., $ 1616.
38 This clause is essential. State r. Thiele, 19 Nebr. 220, 27 N. W. Rep. 937.
39 Heinlin v. Beans, 71 Cal. 295.
40 Includes the value pending the determination of the appeal. See
('lason 1. Kehoe, 87 Hun, 368, 34 N. Y. Supp. 431.
41 To be fixed by a judge of the court appealed from.
42 Where an undertaking as on appeal from a money judgment had been incorrectly given, the court held it valid as a common law agreement, but only to the extent of the costs. Concordia Savings, etc., Assoc. t. Read, 124 N. Y. 189.
An order for a stay is necessary when the appellant is not in possession of the property or liable for the deficiency. Rosenbaum v. Tabler, 31 App. Div. 312, 53 N. Y. Supp. 722. See Form 2102.
FORM No. 2091.
ment in the : 19
[Title of court below, and action.]
WHEREAS, on the day of , 19 , the abovenamed plaintiff recovered a judgment in the Court for the county of , against the above-named defendant, awarding to plaintiff possession of premises admeasured and laid off to her as her dower, and whereas defendant, feeling aggrieved thereby, has appealed therefrom to [the Court of Appeals), and has applied for a stay of the execution of said judgment pending such appeal:
Now, THEREFORE, we, 43 A. B. [specifying here one or more sureties and their residences], do hereby, pursuant to the statute. jointly and severally undertake that, if the judgment appealed from is reversed or modified, and restitution is awarded, the plaintiff will pay to the person entitled thereto, the value of the use and occupation of the part so admeasured and laid off to her, or of the portion restitution of which is awarded, during the time she holds possession thereof by virtue of the judgment. [Date.]
[Signatures.] [Acknowledgment as in Form 822, p. 1176 of this volume; affidarit of sufficiency as in Form 823, p. 1176; approval by the court or judge as in Form 824, p. 1176.]
[Notice of filing as in Form 825, p. 1177.]
a restitution of seadmeasured on the value of
FORM No. 2092. Certificate of deposit in lieu of undertaking on appeal. [Title of court below, and action.]
This is to certify that T. Z., attorney for the defendant and appellant in the above entitled action, has this day deposited with me, as clerk of the Court, the sum of dollars. Said sum is deposited in lieu of the undertaking required to be given on appeal to the Court of Appeals from the judgment [or, order] entered herein on the day of
, 19 [or
43 It is not essential that plaintiff sign this undertaking, nor that there be more than one surety if the court or judge accepts it without. N. Y Code Civ. Pro., 88.811, 1616; Vol. I, p. 455.
44 Approval in this case is expressly required. N. Y. Code Civ. Pro., § 1616. But no express provision seems to be made for exception and justification.