otherwise, according to the nature of the undertaking], to be held by me to abide the result of said appeal. [Date.] [Signature of], Court. FORM No. 2093. Notice of deposit in lieu of undertaking on appeal. [Title of court below, and action.] Please take notice, that in lieu of giving an undertaking, the appellant has this day deposited with the clerk of the county of [or, the clerk of the Court], the sum of dollars for the purpose of perfecting his appeal to the [Appellate Division of the Supreme Court, for the Department] from the judgment [or, order] in this action entered with said clerk [and for the purpose of staying the execution of said judgment - or, order]. [Date, signature and addresses as in Form 815, p. 1171.] FORM No. 2094. [Title of the appellate court and action.] day of The [plaintiff] hereby consents that the [defendant] may appeal to the Court from the judgment [or, order] entered in this action on the 19, and that proceedings under the said judgment [or, order] shall be stayed until the decision of the said appeal, without security [or, may say: without other security than the deposit of a certified check on some responsible bank-by the defendant in the hands of payable to undertaking]. [Date.] 45 Equal to the amount or aggre gate of the amounts, including future costs on appeal, for which otherwise security must be given. N. Y. Code Civ. Pro., § 1306; Pringle r. Leverich, 1 Civ. Pro. Rep. 372. A less sum or a special deposit may be made on stipulation. Jessup v. Carnegie, 45 N. Y. Super. Ct. 310. As to the title to such deposits, see note in 18 Abb. N. C. 323. and to stand in lieu of an [Signature of], Attorney for [respondent]. 46 Sanctioned by N. Y. Code Civ. Pro., 1305. As to implied waiver, see the following cases: Hill v. Burke, 62 N. Y. 111; Halsey r. Flint, 15 Abb. Pr. 367; Beckwith v. Kansas City, etc., R. R. Co., 28 Kan. 484; Howard v. Harman, 5 Cal. 78; Bryan v. Berry, 8 id. 130, 134. FORM No. 2095. Exception and justification. [Notice of exception as in Volume I, p. 480, Form 257. Notice of justification as in id., Form 258. But may designate county judge, if desired, instead of the court where the action is pending, or a judge thereof. Allowance of sureties by court or judge, Form 255, Volume I, p. 480.48 Serve copy of the allowance with notice that it was granted.*"] [Motion for renewal of security, etc., on insolvency, etc., of sureties, see Forms 260-262, Volume I, pp. 481-483, but entitle and move in the appellate court.] FORM No. 2096. Affidavit to move to dismiss for neglect to give new undertaking. [Title of appellate court50 and of action.] [Venue.] A. T., being duly sworn, says: I. That he is the [managing clerk in the office of the] attorney for the [plaintiff and] respondent herein. day of II. That [one of] the sureties in the undertaking given by the appellant on this appeal, after executing said undertaking, became insolvent [or, the circumstances of — etc.— etc. - became so precarious that said undertaking was not sufficient to afford due security to the respondent]; and thereupon, and on due proof thereof, this court, on the last, duly made an order requiring said appellant to file a new undertaking, and serve a copy thereof within twenty days after service of said order; a copy of which order, marked A, together with a copy of the affidavit on which it was granted, marked B, are hereto annexed. day of III. That on, the 19 , a copy of the said order, with notice of entry of the same, was duly served on the appellant's attorney by this deponent, by [stating particulars; see Forms 219-222, Volume I, pp. 406-408, or say: as appears by the affidavit of hereto annexed, and marked C]. IV. That although more than twenty days have elapsed since said service, no new undertaking, nor any copy thereof, has been 47 N. Y. Code Civ. Pro., § 1335. 49 Id., § 1335. 50 Parks v. Murray, 109 N. Y. 646. served upon the attorney for the respondent, personally or in any manner, to the knowledge or belief of deponent, nor has any new undertaking been executed or filed to his knowledge or belief. [Jurat.] FORM No. 2097. [Signature.] Notice of motion to dismiss for neglect to give new undertaking.51 [Title of appellate court, and of action.] day of in on the Please take notice, that upon the annexed affidavits of [names] verified on the 19 [and designate any other papers relied on], a motion will be made at a term of this court, to be held at the day of 19 at the opening of the court, or as soon thereafter as counsel can be heard, that the appeal of the appellant from the [judgment] herein, be dismissed with costs, and with costs of this motion, on the ground that the appellant has neglected to execute, file and serve notice of a new undertaking, as required by the order of this court, entered herein on the day of 19 and for such other or further order as may be just. [Date.] [Signature and office address of], [Address to], Attorney for appellant. Attorney for respondent. FORM No. 2098. Order allowing new notice of justification or new undertaking on appeal.52 [Caption (court order) and recitals, as in Form 820, p. 1174, of this volume.] ORDERED, that the [plaintiff] appellant herein be allowed to give a new notice of justification of the sureties named in the undertaking on appeal herein at a time not less than [five] days, nor more than [ten] days after service of a copy of this order on the attorney for the appellant; or the appellant, at his election, may, on the day named for justification as aforesaid, present a new undertaking with sureties in the form prescribed by law, 51 See last clause of N. Y. Code Civ. Pro., 1308. Move in the appellate court. Parks r. Murray, 109 N. Y. 646. 52 Sustained in Mason v. Libby, N. Y. Supm. Ct., Gen. Term, 1881, not reported (security on appeal to Court of Appeals). This order must be made by the court. N. Y. Code Civ. Pro., § 1303; Wheeler v. Millar, 61 How. Pr. 396 (vacating a judge's order extending the time to justify). which last-named undertaking shall, if the sureties duly justify [before a justice of this court], stand in the place of the undertaking on appeal now on file in the office of the clerk of this court, and have the same force and effect as if filed on the same day when the notice of appeal was filed, and as if the sureties therein named had justified within the time prescribed by law. Enter: [signature of judge by initials of name and title.] FORM No. 2099. Order dismissing appeal or vacating stay.53 [Title of appellate court, and of action; recitals according to the case; see Form 820, p. 1174.] ORDERED, that the appeal taken by from the judgment day of [or, order] entered herein on the 19, be and the same is hereby dismissed, with costs and with ten dollars costs of this motion54 to respondent [or, that the order-or, judgment-appealed from be executed as if the original undertaking had not been given]. Enter: [signature of judge by initials of name and title.] FORM No. 2100. Affidavit to obtain stay on appeal from an order or judgment. [Title of court55 and action.] [Venue.] the Y. Z., being duly sworn, says: I. That he is the [defendant above named.] II. That on the day of 19, an order [or, judgment] was entered in this action, at a [Special] Term of Court [describing it as thus: directing deponent to deliver to the plaintiff certain property alleged to be in deponent's custody or control]. 53 Formerly an appeal to General Term could not be dismissed for failure to file new security, except in a case where security was essential to perfect the appeal. Genter r. Fields, 2 Abb. Ct. App. Dec. 253. And the present statute. § 1308, last clause, seems to bear the same construction. 54 As to costs, compare Dunseith r. Stark, 3 Monthly L. Bul. 42; White r. Anthony, 23 N. Y. 164; Brown r Leigh, 50 id. 427. 55 Entitle in court in or from which the appeal is taken (McDonald t. Hanlon, 71 Cal. 535, 12 Pac. Rep. 515; N. Y. Code Civ. Pro., § 1351), unless the appeal is to the Supreme Court from an inferior court, in which case the application must be to the appellate court or a judge thereof. N. Y. Code Civ. Pro., § 1343. III. [That the value of the said property is not more than dollars.] IV. That deponent intends in good faith, to [or, has perfected an] appeal from said order, and will suffer serious inconvenience and loss if proceedings under the said order are not stayed until the decision of the appeal [stating briefly how and why]. [If order to show cause is asked, state as on p. 1172.] [Jurat.] FORM No. 2101. [Signature.] Notice of motion (or order to show cause) for stay pending appeal,56 [Title, in court below; move the court or a judge thereof57 for an order:] staying all proceedings on the part of the respondent under the order [or, judgment] entered herein on the day of 19 [or describe the nature of the order if necessary to identify it], until the decision of the [Appellate Division] upon the appeal taken from the said [order] by the appellant, or for such other relief as may be just.58 [If order to show cause is taken, may insert: and let all proceedings on the part of the defendant be stayed until the hearing and decision of the application to be made on this order.] FORM No. 2102. Order for stay pending appeal on giving security.59 [Name of] Court [or if court order], At a Special Term [etc., as in Form 820, p. 1174 of this volume.] [Title of action.] An order [or judgment] having been entered herein on the day of [briefly stating effect, for instancc 19 56 If a case has been made on the appeal, move on that, in connection with the affidavit. Otis v. Spencer, S How. Pr. 171. 57 Such an order to show cause, in the Supreme Court, First District, may be made by a judge in any part fo the State. Hull v. Hart, 27 Hun, 21. 58 It seems that the Special Term may extend the time to redeem fixed by an Appellate Division decision, when staying proceedings on that decision pending an appeal to the Court of Appeals. Gray v. Green, 14 Hun, 18. 59 As to the inherent power of the court to order a stay, see Hudson v. Smith, 9 Wisc. 122; and Polini v. This order may be made by the court in or from which the appeal is taken, or a judge thereof, upon such terms as to security or otherwise, as justice requires; except that execution upon a money judgment shall not be stayed more than thirty days without security. N. Y. Code Civ. Pro., 1351. An undertaking on appeal from an order denying motion for new triai will not stay execution on the judg ment without an order therefor. Carter v. Hodge, 150 N. Y. 532. Nor an |