The Code provides that an appeal in an action to the general term of this court does not stay proceedings on the judgment appealed from, unless security be given thereon as on the appeal to the Court of Appeals (§ 348); and, further, that no action shall be commenced upon any undertaking given in pursuance of the provisions of this section in case an appeal shall be taken to the general term, nor shall any recovery be had upon any such undertaking until after the final determination of such appeal.
The agreement or instrument here sued upon is not such an undertaking, nor does it seem that the defendant, down to the time of the trial, so considered it; as one of the defences interposed by his answer was that his signature to the instrument was procured by false representations, and upon the supposition that it was in the usual form prescribed for undertakings in cases of appeal to the general term; and to the defence thus stated, he added : “ Whereas, in truth and in fact, as he is advised by his counsel, and believes that said bond or agreement is not the usual undertaking required and which is given in cases of appeal to the general term, and is not an undertaking in conformity with the statutes and the rules and practice of the courts in such cases made and provided, but is, in fact, an instrument materially different in form and legal effect.”
As this advice meets my full concurrence, I do not see how it is possible for the defendant to invoke in his aid the provision of the Code referred to.
Brady, J., concurred.
Daly, F. J.The perfecting of an appeal from the judgment is no answer in bar to an action upon the undertaking. The defendant’s remedy is to apply to the court for a stay of proceedings. (Burrall a. Vanderbilt, 6 Abbotts’ Pr., 70; S. C., 1 Bosw., 637; Heebner a. Townsend, 8 Abbotts’ Pr., 234; Burr a. Burr, 10 Paige, 169; Cook a. Dickerson, 1 Duer, 674; Wheeler a. Raymond, 6 Cow., 581.)
Judgment affirmed.