Shambach v. Shambach

4 A.D.2d 996, 167 N.Y.S.2d 975, 1957 N.Y. App. Div. LEXIS 3876

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 20, 1957
• Status: Published

Opinion

Motion to vacate a stay. Since the plaintiff was stayed by an order of the Special Term of July 31, 1957, granted after the parties had come before the court on an order to show cause, dated July 23, 1957, why the judgment should not be vacated and why the court should not grant “ such other relief as may be just”, we determine the stay of plaintiff from proceeding under the judgment is not ex parte and plaintiff must review it by appeal rather than by motion to vacate as an ex parte order. This stay made by the court must be distinguished from the stay in the order to show cause and it superseded that stay. The order to show cause of November 4, 1957, returnable November 15 at Special Term contains an ex parte stay, but this merely stays plaintiff from “ all proceedings to conclude the reference herein.” This is not the stay to which plaintiff objects. She objects to staying the enforcement of her money judgment. Since the defendant has sought from the court in New York, and obtained, affirmative relief by way of a stay after the default judgment was entered, the Special Term may well consider terminating the stay unless defendant proceeds promptly to litigate the jurisdictional issue and may, as a condition of continuing the stay, require that he make reasonable provision for the support of his wife and during the litigation of this question without prejudice to his basic contention on jurisdiction. If plaintiff has appealed from the order of July 31, or if the time to appeal therefrom has not expired, the court will facilitate the hearing thereof. Motion denied. Present — Foster, P. J., Bergan, Coon, Halpern and Gibson, JJ. [See post, p. 997.]