I concur with Justice Ingraham in his dissent. The learned judge below decided the application upon an erroneous view of the -effect of an appeal from an order. He intimates that the order appealed from was suspended by the appeal. And he granted the plaintiff’s application upon this theory. As I understand it, my brethren do not concur in this view. ■ There is, in fact, no provision of the Code which sustains it.- Hpon an appeal from an order, a •stay or suspension can only be had- by an application to the court. The majority opinion places the jdaintiff in precisely the same position as though he .had asked for a' stay or suspension. The effect • of such a decision is to encourage loose practice. ■ If the defendant had appealed from the conditions as oppressive, without asking for .a stay or suspension, and had been defeated upon1 his appeal, he would certainly have lost his right to a new trial. He would not thereafter be permitted to fulfill conditions' which he had deliber*219ately rejected. It seems to me that what would be a fair rule for the one should be a fair rule for the other. The plaintiff deliberately rejected the terms, asked no suspension of the order, and relied entirely upon his appeal. He does not say that his neglect to apply for a stay or suspension was inadvertent, and ask to be relieved. On the contrary, he "demands the terms once rejected, and demands them as his right. My brethren apparently think he is entitled to them as matter of right, seemingly, however, upon a different theory from that upon which the Special Term acted. They treat the terms, namely, the costs and bond, as in the nature of a debt due by the defendant to the plaintiff. With great respect, I think this view as mistaken as that of the Special Term. The correct view of the matter is that the court granted the defendant a new trial upon •certain terms and conditions. These terms and conditions were not a debt or obligation of his to the plaintiff, such as could only be satisfied by payment or extinguished by a release under seal. They were independent of any real obligation as between the parties, and were imposed by the court without regard to any such obligation. The defendant could fulfill them or not, as he pleased. The plaintiff could take them or leave them, as he pleased. It pleased the defendant to fulfill them. It pleased the plaintiff to reject them.
And now, without a suggestion of an excuse for the plaintiff’s failure to apply for a stay of suspension upon the appeal, the court wipes out both the fulfillment and the rejection, compels the defendant to fulfill over again, and gives the plaintiff the privilege of rejecting or accepting over again.
This seems to me to be purely arbitrary. Certainly no rule of law or practice has been found to sustain it, and it establishes a dangerous precedent.
Order modified as directed in opinion, and as modified affirmed, ■ without costs.