At the close of plaintiff's case, the defendants' counsel moved for a nonsuit on the following grounds:
First. That the undertaking was void as being without consideration, and as not authorized by any statute.
Second. That the appeal had been dismissed by Justice McCARTHY, and that, therefore, no cause of action was proved.
The court granted the motion and dismissed the complaint, and plaintiff's counsel duly excepted.
Several technical questions now raised by the respondents' points, were not suggested at the trial and they are not to be considered here. If they are of any force, it is probable that most, if not all of them, could have been avoided by further evidence had they been raised at the trial.
Justice McCARTHY had no power, "sitting alone as a judge," to dismiss the appeal. His order to that effect was inoperative, and might have been disregarded. It was properly vacated by himself at a subsequent period.
The important question of the case is, whether upon an appeal from a judgment entered by the direction of a single justice of the Marine Court, to the justices thereof at a General Term, security may be given by the appellant which *Page 451 will operate as a stay of proceedings, according to the provisions of the Code.
This question depends upon the construction to be given to the fifth section of chapter 617, of the act of 1853 (Laws 1853, p. 1166), which is in these words: "An appeal may be taken upon the same, from a judgment entered by the direction of a single justice of the said court, to the justices thereof at General Term, in the same manner and with the like effect as appeals in the Supreme Court from the decision of a single judge to the General Term."
Section 348 of the Code of Procedure authorizes the appeals to the Supreme Court, referred to in the foregoing provision, and declares that "such an appeal does not stay the proceedings unless security be given as upon an appeal to the Court of Appeals, and such security be renewed as in cases required by section 335, on motion to the court at Special Term, or unless the court or judge thereof so order, which order may be made upon such security or otherwise as may be just, such security not to exceed the amount required on an appeal to the Court of Appeals."
The manner of making the appeal is prescribed by section 327; the time within which it is to be done by section 332; and sections 329 and 330 declare the power of the appellate court in reviewing the judgment and any intermediate order involving the merits, and necessarily affecting the judgment.
The principal "effect" of an appeal taken in the manner indicated, is undoubtedly "to bring the judgment for review before the appellate tribunal, where it may be reversed, affirmed or modified; but there is another "effect" which flows from the appeal, to wit, a stay of all proceedings on the judgment appealed from, provided the appellant comply with the requirement, by giving the security or obtaining the special order which makes that effect operative. This latter effect of an appeal is optional with the appellant; but when he chooses to comply with the requirements that produce it, the stay ofproceedings in the court below is as much an *Page 452 effect of the appeal as is the bringing up of the judgment for review.
In using the general language of the section relating to appeals in the Marine Court, above quoted, the legislature intended to adopt the practice on the subject of such appeals in the Supreme Court, as laid down in the Code with all its concomitants and incidents. It was not thought necessary to repeat the provisions of the Code, but the declaration that the appeals should be taken "in the same manner and with the like effect as appeals in the Supreme Court, from the decision of a single judge to the General Term," was designed to be equivalent to such a repetition. Hence I think it quite clear that on an appeal in the Marine Court, the appellant is at liberty to stay all proceedings on the judgment appealed from, by giving security as upon an appeal to the Court of Appeals.
In The People v. The Clerk of the Marine Court (3 Abb. Pr., 320), this court incidentally considered this question, though it was not directly involved. MITCHELL, J., said "the manner relates to the mode of proceeding in effecting an appeal, the notice and security to be given; the effect relates to the consequences produced by the appeal, as under what circumstances it shall operate as a stay of proceedings." But without considering the subject further, I think the court below erred in not adopting the dissenting opinion of BRADY, J., as a correct exposition of the law on this point.
It follows that the undertaking, on which this action is brought, was authorized by the statute, and if properly executed, operative as a stay, and therefore was based upon sufficient legal consideration.
The judgment should be reversed, and a new trial ordered, with costs to abide event.
Judgment reversed. *Page 453