Wood v. Kimball

9 Abb. Pr. 419, 18 How. Pr. 163

• Court: New York Supreme Court
• Decided: October 15, 1859
• Status: Published

Opinion

Ingraham, J.

A motion is made to set aside an order staying proceedings upon a referee’s report, and judgment thereon, until the decision of an appeal thereon, taken to the general term'—because the same is for a longer time than twenty days, and was made without notice.

By section 401 it is provided, that no order to stay proceedings for a longer time than twenty days shall be granted by a judge out of court, except on previous notice.

Judge Harris (in 8 How. Pr. R., 49) has held that this section is applicable to such an order as the present.

In Lottimer a. Lord (4 E. D. Smith, 184), the general term of the Common Pleas, Judge Woodbuff delivering the opinion, fully examined this question, and he came to the conclusion that the section did apply to orders staying proceedings on appeal, although the case was decided on other grounds,

I understand that orders have heretofore been made, in this district similar to the present; and it seems idle to say that the same judge, sitting at the same time in special term and chambers, may make an order valid if he states it to be made in court, and that it is void if made by him in chambers. Tet such is the distinction made in the Code, and sustained by these decisions.

As no harm can come to the parties from requiring them either to have the order made by the judge at' special term, or, if he is not holding court, on notice to the other party, I see no great evil in following these decisions, and requiring the party to obtain a new order, either on notice or from the judge in court.

The motion is granted, but the proceedings stayed to allow the defendant to renew his application for a stay until the decision of the appeal. Such stay to be for ten days. Costs to abide event.