Van Kleeck v. Nichols

63 How. Pr. 403

Opinion

Westbrook, J.

The general rules of practice cannot be inconsistent with the Code (Sec. 17).

A judge of the supreme court has.power to stay proceedings in an action.

Rule 37, though a wise rule, which a judge could properly respect, is inconsistent with the statute.

A judge has power by law to stay proceedings in. an action, and no rule can prevent the operation of his order (People ex rel. Mayor of New York agt. Nichols, 79 N. Y., 582). There was no power in this court or another judge, without notice, to vacate the order. A vacation without notice can only he granted by the judge who made the order.

It follows that the trial and inquest were irregular, and the verdict and judgment must be set aside.

Ho costs can be allowed to the plaintiff, because he is irregular, nor to the defendant, because the rule was proper to be observed.