Maynard v. Chapin

7 Wend. 520

• Court: New York Supreme Court
• Decided: May 15, 1832
• Status: Published

Opinion

By the Court,

Nelson, J.

By,the ninth rule of April term, 1796, which continued in force until the 1st January, 1830, a rule for a commission to examine witnesses did not operate as a stay of proceedings, unless obtained within the first four days of the term succeeding the joining of the issue, if the cause was put at issue in vacation. If the rule was obtained after such four days elapsed, it did not stay the proceedings, unless so directed by thé court on application for that purpose. 18 Johns. R. 136. The rule of 1796 was founded upon thé statute which authorised the issuing of a commission to examine witnesses upon such terms as the court should think proper. 1 R. L. 519, § 11. The rules adopted in October term, 1829, are silent as to the issuing of a commission, and the effect of a rule for that purpose, in regard" to staying proceedings ; consequently there is no general rule of court declaring that a rule for a commission shall in any case operate as a stay of proceedings, and unless it is so ordered by the court, a rule for a commission does not operate as a stay of proceedings, as the commission still issues upon such terms as the court shall think proper to direct. 2 R. S. 393, § 11.