The plaintiff obtained a judgment against the defendant in a court of a justice of the peace for more than fifty dollars, and the defendant apjiealed to the County Court from the judgment, and stated in the notice of appeal that such appeal was taken upon questions of law only. No undertaking was given and a motion *235was made in the County Court to dismiss the appeal for that reason, which was granted, and now the defendant appeals from that order.
By section 352 of the Code of Procedure no new trial could be had in the appellate court on this appeal. Section 355 of the Code provides that when, by the terms of section 352, the appellant is entitled to a new trial in the appellate court, he shall, at the time of taking his appeal, give security as provided in the next section ; and in all other cases he shall give security if he desires a stay of execution of the judgment. In this action, therefore, as the appellant was not entitled to a new trial in the appellate court security was not necessary for the perfection, of the appeal, and was only necessary to stay the execution of the judgment.
The order dismissing the appeal must therefore be reversed* with ten dollars costs and disbursements.
Barnard, P. J., concurred. Present — Barnard, P. J., Gilbert and Dykman, JJ.Order reversed, with costs and disbursements.