In re Miller

231 A.D. 759

Opinion

The proceedings before the justice in Long Island City were abortive and did not constitute a motion on the part of the plaintiff, Gertrude B. Mirick. This relegated the matter to the situation as it appeared at the time of the Kings county incident, when the plaintiff attempted to make and in effect made a motion to vacate an ex parte stay granted by the justice. The circumstances were then such that the failure of the justice to act amounted to a denial of the application. The stay theretofore granted by the justice should have been vacated forthwith upon the application made in Kings county as being without warrant in law. Under section 66 of the Civil Practice Act, this court accordingly does that which the Special Term should have done when the application was made in Kings county, and vacates the stay. An order of prohibition is, therefore, unnecessary. Present — Lazansky, P. J., Young, Kapper, Carswell and Scudder, JJ.