Deyo v. Morss

14 N.Y.S. 841, 38 N.Y. St. Rep. 477

Opinion

Learned, P. J.

This court, and many other courts of record, can stay proceedings by order in actions pending before them. But a court cannot, by order, stay proceedings in an action pending in another court of record. Belief of that general nature must be obtained, when proper, by injunction. The plaintiff cites us to no case to sustain his practice. 8 Pom. Eq. Jur. § 1371, speaks only of injunctions. Bank v. Habel, 80 N. Y. 273, was the case of an injunction. So was Rogers v. King, 8 Paige, 210. The distinction is plain and important. An injunction cannot be granted without security. Code, § 620. And it is most important, where legal proceedings in another court are restrained, that the court granting the injunction should carefully consider what protection by way of security should be required. Special provisions are made in many such cases. Section 611. Stays of proceedings are granted in the free discretion of the court; but injunctions are to be granted only when authorized by section 603 et seq. We do not decide whether in this case an injunction restraining the authority in the surrogate’s court would or would not be proper. It is enough to say that a stay of proceedings should not be granted to control the proceeding pending in that court. Order reversed, with $10 costs and printing disbursements; and motion denied, with $10 costs, without prejudice to any application for an injunction.