This order is challenged as being an abuse of the discretion of the court. That the right to make the limitation in proper cases exists is not disputed. (See Civil Practice Act, § 568.) It cannot be possible, however, that the Legislature *623intended to give to the court the power to Emit the undertaking to the sum of $50,000 in aU cases where the judgment was for a greater sum, irrespective of the circumstances of the judgment debtor and the probability of the payment of the judgment in case it be affirmed. The discretion which the court is called upon to exercise in passing upon a right under this section is a sound discretion, in consideration of the presumptive right of the plaintiff to his judgment and of his right to have that protected so that it may finally be enforced if the appeal fails. In some cases the judgment has become a Een upon real estate owned by the judgment debtor so as to be partly, if not entirely, secured thereby. In the case under review there is no disclosure as to the financial condition of the judgment debtor. His own affidavit shows that the business conditions at the present time are unfavorable, and while he swears to the contribution of his special partner, and that he has standing to his credit on the books of the partnership the sum of $409,677.54, the business itself is such as not to form sufficient guaranty that the judgment will be paid if affirmed, unless it be secured by an undertaking for the full amount thereof.
In our judgment the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.
Clarice, P. J., Dowling, Page and Greenbaum, JJ., concur.
Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.