Opinion
November, 1893.
Wales F. Severance, for plaintiff (respondent).
Isaac L. Sink, for defendant (appellant).
The sole question to be determined is, whether security is required to perfect an appeal to this court from an order made by the City Court of New York, at a General Term thereof. Section 1343 of the Code of Civil Procedure, which is made applicable to appeals to this court from the City Court of New York by section 3192 of the Code and section 1270 of the Consolidation Act, expressly provides, that on an appeal from an order "security is not required to perfect it." This section reads the same now as it did in 1880, when section 3192 was enacted. Therefore, the reasoning and conclusion of this court in Carling v. Purcell, 3 Misc. 55; 51 N.Y. St. Repr. 835; 22 N.Y.S. 558, cited by the respondent, which was an appeal from a judgment, not an order, and was controlled by section 1341 of the Code of Civil Procedure, have no application to the case at bar.
The case of Lane v. Humbert, 16 Daly, 186; 18 Civ. Proc. Rep. 377, also cited by the respondent, has no application, as the records on file show that the appeal was from a judgment. That case merely holds that a deposit in lien of an undertaking shall, in a case in which security is requisite, be equal to the amount for which the undertaking is required to be given.
The attention of the court was not especially directed to the question whether any security at all could have been required.
My conclusion, therefore, is that security is not required to perfect an appeal to this court from an order made by the City Court. It follows that the motion to dismiss the appeal should be denied. As the precise question involved has not, to my knowledge, been heretofore passed upon, the denial should be without costs.
Motion denied.