#### WILLIAM E. WARING, Respondent, *v.*JULIUS SOMBORN, Appellant.

*Appeal*— stay *of proceedings*pending— *Oode,*§ *348*— what *condition may be imposed under.*

In an action brought to foreclose a mortgage, one of the defenses set up in the answer was a tender of tlie amount due. Pending an appeal from a judgment therein recovered by the plaintiff, the defendant applied for a stay, which was granted on condition that he executed a bond in a prescribed penalty, and that he waived the defense of tender. Upon an appeal from the latter clause of the order, *held,*that, under section 348 of the Code, the terms to be imposed were left to the sound discretion of the justice, and that, in the absence of all evidence to the contrary, it must be assumed that it appeared to the justice that the alleged defense was not involved in the appeal, and that it would bo inequitable to allow it to remain in the record if, for any reason, a new trial should be granted.

Appeal from an order made at Special Term, fixing tbe terms on whicli tbe proceedings in tliis action should be stayed, pending an appeal from a judgment recorded by tbe plaintiff.

*Mr.*Sanders, for tbe appellant.

*II. H.*Anderson, for tbe respondent.

Davis, R. J.:

This action was brought to foreclose a mortgage. Issue was joined therein, and, amongst other defenses, tbe defendant alleged by bis answer that be tendered, before said suit was brought, tbe moneys dne on tbe mortgage.

On tbe trial tbe plaintiff bad judgment of foreclosure and sale. Tbe defendant appealed therefrom, and after such appeal was taken, applied to tbe judge who tried tbe cause, for an order staying proceedings under section 348 of tbe late Code of Procedure.

Tbe judge granted tbe stay upon defendant’s execution of a bond in a prescribed penalty to pay deficiency, etc., and *wawmg the defense of tender.*

Erom so much of tbe order as required tbe waiver of the defense *82of tender, the defendant appealed. Section 348 of the Code pro vides that the stay granted thereunder may be “ upon such terms as to security, *or*otherwise, as may be just.” This leaves to .the judge a wide field of discretion. But where it appears that such discretion has manifestly been abused, to the prejudice of the defendant, this court should not hesitate to correct such abuse. We cannot, however, presume such abuse. In this ease the papers disclose no fact tending to show that the appeal involves any question touching the alleged tender. Certainly, if it did, it would be improper to require the defendant as a condition of stay, to strike out or waive any substantial ground of such appeal. But, in the absence of anything tending to show the contrary, we must assume that it appeared to the judge who tried the cause not only that the alleged defense of tender was not involved in the appeal, but that it would be inequitable to allow it to remain in the record, if, for any reason, a new trial should be had. lie acted as he had a right to act on every thing that occurred on the trial, as well as on the affidavit and notice brought before us on this appeal. Neither the case made on the appeal, nor the evidence taken on the trial, nor any thing else, from which we can see that the judge acted harshly or improvidently in imposing the condition appealed from, is laid before us. Hnder such circumstances, wo think it our duty to affirm the order. The appellant is, of coarse, not bound to accept the conditions of the order. lie may proceed without stay, or may have leave to file an undertaking, *mino pro 1mio,*under the other provisions of the order.

The order must be affirmed, -with ten dollars costs and disbursements.

Brady, J., concurred; Daniels, J., not acting.

Order affirmed, with ten dollars costs and disbursements.