Gertler v. Brooklyn, Queens County & Suburban Railroad

128 N.Y.S. 618

• Court: Appellate Terms of the Supreme Court of New York
• Decided: March 24, 1911
• Status: Published

Opinion

SEABURY, J.

This is an appeal from an order denying defendant’s motion for a stay of proceedings until the payment of the costs of a prior action. [1] As a general rule, such a motion will be granted, “unless special facts are presented which indicate that an exception ought to be made.” Wilner v. Independent Order of A. I., 122 App. Div. 615, 107 N. Y. Supp. 497.

[2] Judgment for costs in the prior action was entered on May 24, 1909. Issue in the present action was joined on November 13, 1909, and this motion was not made until November 30, 1910. The defendant, having delayed making this motion for over one year, until this action was upon the day calendar for trial, and having presented no excuse of any kind for its delay, cannot justly complain that its motion was denied. If the plaintiff was to be stayed from the prosecution of this action, justice required that he should have notice of this fact before he was put to the expense of preparing for trial. Under the circumstances disclosed, we think the discretion of the court below was properly exercised.

Order affirmed, with $10 costs and disbursements. All concur.