Reldan Trading Corp. v. Hause

Motion to dispense with the giving of a written undertaking herein, pursuant to the provisions of section 614 of the Civil Practice Act, to stay the execution of the final judgment appealed from, or in the alternative, limiting such undertaking to the sum of $65,000.

Judgment was entered herein on April 30, 1958, for the sum of $60,872. A notice of appeal was filed with the Appellate Division on June 2, 1958. Although the defendant has had ample time and has stated in his moving papers that he is prepared to submit at this hearing full and complete proof of his net worth in excess of $1,000,000, he has failed to submit any proof except a self-serving copy of a financial statement. True it is, that he states he has cash in banks of $73,445.68, but *774he gives no reason why he does not post said bank accounts as security or why a surety or fidelity company Avould not issue an undertaking based on such net worth.

The defendant asserts no facts which would justify the court varying the requirements of the law as set forth in the Civil Practice Act and Rules of Civil Practice. The court must necessarily give due consideration to the presumptive right of the plaintiff to its judgment, and to have it protected for eventual enforcement if the appeal fails (Regan v. Dillon, 199 App. Div. 622). While a defendant should not be deterred from taking an appeal, the court should not limit the security required to such an extent as to chance the possibility of loss to the plaintiff-respondent should it succeed upon the appeal (McNamara v. Powell, 55 N. Y. S. 2d 483, affd. 269 App. Div. 813). The facts and circumstances herein do not warrant the> court in limiting the security required of the defendant. Accordingly, the motion is in all respects denied.

Settle order.