#### Albert G. Lamport, as Administrator, etc., of Hiram H. Lamport, Deceased, Respondent, *v.*Mary Clementine Smedley, Appellant, Impleaded with Chemical National Bank and the United States Steel Corporation, Defendants.

First Department,

June 13, 1913.

Judgment — decree of Appellate Division ordering restitution of property— appeal to Court of Appeals — when Special Term cannot stay execution.

Where the Appellate Division has reversed a decree whereunder certain property was delivered to the plaintiff and ordered that it be restored to the defendant, and that the complaint be dismissed on the merits, a judgment entered pursuant thereto is that of the Appellate Division and not of the Special Term.

Hence, the Special Term has no power to stay the execution of the decree requiring restitution to the defendant, even though the plaintiff has given security to perfect an appeal to the Court of Appeals and has given the property into the custody of the court.

*It seems,*that the Appellate Division may stay or suspend the execution of its own judgment for restitution.

*443Appeal by the defendant, Mary Clementine Smedley, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 12th day of April, 1913, staying the execution of a judgment entered upon an order of said court in so far as it directed a restitution of funds and property for the recovery of which this action was brought, which were delivered to the plaintiff pursuant to a judgment entered upon the decision of the court rendered after a trial at the New York Special Term, which judgment was reversed by the Appellate Division.

*John S. Wise, Jr.,*for the appellant.

*Charles T. B. Rowe [Edmund L. Mooney*with him on the brief], for the respondent.

Laughlin, J.:

On the 12th day of March, 1913, on an appeal by the defendant, this court (155 App. Div. 516) reversed a judgment of the Special Term pursuant to which certain certificates of stock and dividends, and interest thereon, and the sum of $5,993.81, were delivered to the plaintiff on the 4th day of April, 1911, and ordered and adjudged that the certificates of stock and moneys so delivered, together with interest on the moneys, be *forthwith*restored and delivered to the defendant Smedley, and that the complaint as against her be dismissed on the merits together with costs in all courts; and, upon a certified copy of the order of this court, judgment in accordance therewith was duly entered in the office of the clerk of the county of New York on the 19th day of March, 1913. The plaintiff thereupon obtained an order to show cause why an order should not be made staying the execution and enforcement of the judgment pending his appeal therefrom to the Court of Appeals and, pending the motion, he obtained a stay of proceedings on the part of the defendant Smedley to enforce the judgment. The affidavit upon which the order to show cause was obtained showed that the plaintiff had appealed from the judgment and had given an undertaking for the payment of all costs and damages *444which may be awarded against him on the appeal not exceeding $500.

The order from which the appeal was taken stays the execution and enforcement of the judgment pending the appeal to the Court of Appeals upon the delivery into court of the certificates of stock and upon the giving of a further undertaking by the plaintiff in the sum of $6,000, for the payment of all costs and damages which may be awarded against him on the appeal and, in the event that the judgment should be affirmed or the appeal dismissed, the payment of “the sum recovered or directed to be paid by the said judgment.”

It is contended in behalf of the plaintiff that upon giving the further undertaking required by the order, he will have complied with the provisions of section 1327 of the Code of Civil Procedure with respect to giving security to obtain a stay of the execution of the judgment in so far as it requires the payment *or delivery of money,*and that on the delivery of the securities into court as required by the order he will have complied with the provisions of section 1328 of the Code of Civil Procedure with respect to obtaining a stay of the execution of the judgment in so far as it relates to the delivery or return of the *securities,*and that, thereupon, by virtue of the provision of section 1310 of the Code of Civil Procedure he will become entitled to a stay as matter of right.

We are of opinion that these contentions are untenable. The undertaking which has been given by the plaintiff was required by section 1326 of the Code of Civil Procedure to perfect his appeal. The provisions of section 1327 of the Code of Civil Procedure with respect to obtaining a stay of the execution of a judgment for a sum of money or of a judgment or order directing the payment of a sum of money, and of section 1328 of the Code of Civil Procedure with respect to the stay pending appeal on the execution of a judgment or order directing the assignment or delivery of a document or of personal property, other than a chattel mentioned in section 1329, by bringing, the same into court or placing it in the custody of an officer or receiver designated by the court, plainly relates, I think, to an *original judgment*or order for the delivery of ' property or the payment of a sum of money, and not to *an*
      *445
      *order or judgment on appeal*for the *restitution*of property, the delivery of which by one party to another pending the action has been erroneously required. The restitution was ordered by this court pursuant to the provisions of section 1323 of the Code of Civil Procedure upon the reversal of the erroneous judgment under which the defendant Smedley was required to deliver the property and pay the money to the plaintiff; and the judgment entered pursuant to the order of this court was the judgment of this court and not of the Special Term. *(Dwight*v. *Gibb,*208 N. Y. 153.) This court granted the judgment which the Special Term should have granted, and thereupon the defendant Smedley became entitled to have the property and money immediately returned to her. Thereafter the plaintiff was no more entitled to retain possession of the property than he would have been to obtain a delivery of it to him if it had remained in the possession of the defendant until after the decision of this court reversing the erroneous judgment for its payment and delivery to plaintiff. Doubtless this court might have stayed or suspended the execution of its own order or judgment for restitution, but the court at Special Term was without authority so to do.

It follows that the order should be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs.

Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.