Dyckman v. Valiente

19 Abb. Pr. 130

• Court: New York Supreme Court
• Decided: May 15, 1865
• Status: Published

Opinion

Barnard, J.

The order of 23d February, 1865, signed by me, must be amended by striking out the words “ and that if the defendants want a stay, they must give the security required by the Code.” This language was used in the decision of the motion merely for the purpose of showing the ground on which the motion was denied. I was of opinion, and am still, that the Code makes ample provision for the staying of proceedings in cases of this character. The Code having made such provision, a party desiring a stay must comply therewith. The court will not make an order staying proceedings on any different terms than those required by the Code, nor will it make an order directing proceedings to be stayed upon the giving of the security required by the Code. The giving of that security stays proceedings by force of the statute, without any interference of, or order from the court.

The question whether a party has complied with the provisions of the Code, can only arise upon a motion to set aside the proceedings of the opposite party taken subsequent to the giving of the security.