Kjellgren Realty Corp. v. Galop, Inc.

26 Misc. 2d 30, 207 N.Y.S.2d 637, 1960 N.Y. Misc. LEXIS 2266

• Court: New York Supreme Court
• Decided: October 28, 1960
• Status: Published

Opinion

Bernard S. Meyer, J.

Motion for extension of a stay pending appeal. The judgment granted a stay of 30 days pursuant to section 615 of the Civil Practice Act which specifically provides “ that execution of a judgment or order for the recovery of money only shall not be stayed without security for more than thirty days ”. The stay contained in the judgment expired before the present order to show cause was obtained, but movant claims it was delayed in perfecting its appeal because of its adversary’s failure to return a transcript of the minutes.

Section 615 of the Civil Practice Act specifically prohibits what movant now requests. Further, section 614 makes clear that ‘ ‘ the appeal does not stay the execution of the judgment ’ ’ ; failure to return the transcript has no bearing, therefore, since perfection of an appeal, without the filing of an undertaking, would have no bearing. There is, of course, and has been since the filing of the notice of appeal a right to apply to the Appellate Division for a stay under section 613 of the Civil Practice Act. Whatever movant’s rights may be in that court, no facts have been asserted on this motion that would justify the granting of a stay without security even if the court had the power to do so (Reldan Trading Corp. v. Hause, 13 Misc 2d 773). For all of the foregoing reasons the requested stay is denied, but no objection having been made to movant’s request therefor, the stay contained in the order to show cause has been extended by indorsement on the order to show cause until 5:00 p.m., November 3, 1960 to allow movant time to apply to the Appellate Division pursuant to section 613.