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while (not exceeding in a judge's order, 20 days), may be taken, instead of giving the ordinary notice of motion.

In the second class of cases a stay for not exceeding 20 days is sometimes sufficient, and that may be granted out of court ex parte ; 36 but such an order may be vacated without notice, 37 and therefore a notice of motion, or an order to show cause, with a stay meanwhile, is often the safer practice. 38

In the third class of cases the stay should always be by a court order.

8. Stay for purpose of motion.]— A stay of proceedings for the purpose of making a non-enumerated motion is not effectual until the motion papers are served.39 If served in advance of them, it becomes effectual when they are served. 40

When not effectual under this rule, a ministerial officer, on thom it is thus served, may, nevertheless, properly conform to it, and refuse to proceed."1

9. On appeal; special proceedings.] — The stay of proceedings effected by an appeal, or ordered by the court pending appeal, is treated in connection with appeals.

Stays on mandamus and in prohibition are specially regulated. 42

10. Construction of a stay. ]— An order staying proceedings does not forbid applying to the same court on notice. 43

An order staying proceedings is reasonably construed with reference to the stage of proceedings at which it is granted, and it

36 See, for instance, Mitchell v. Hall 7 How. Pr. 490; Marvin v. Lewis, 12 Abb. Pr. 482.

37 See p. 91 of this volume. 38 Sales v. Woodin, 8 How. Pr. 349; Chubbock v. Morrison, 6 How. Pr. 369. 39 Roosevelt v. Fulton, 5 Cow. 438; Sales v. Woodin, 8 How. Pr. 349.

40 Mallory v. East River Ins. Co., 7 Hill, 192. And where it was served on the sheriff, and contained a recital that a motion was intended, and the motion papers were served next day, it was held operative on the sheriff from the time of its service on him. Lucas V. Albee, 1 Den. 666.

41 Roosevelt v. Fulton, 5 Cow. 438. 12 N. Y. Code Civ. Pro., 88 2089 and 2012, respectively. 43 Thompson v. Erie Ry. Co. (No. 3), 9 Abb. Pr. (N. S.) 233 (overruling an objection that the defendants have no right to make this motion – to modify the order herein referred to and change the place of trial — because an order for discovery had been granted, not complied with by the defendants, and which, under Rule 16, operates as a stay of all other proceedings).

Compare Wilkinson r'. 'North River Construction Co., 66 How. Pr. 423, holding an order forbidding all actions, to preclude an application for leave

to sue.

does not always extend to all possible proceedings. Thus, for instance, the usual stay after verdict applies only to the ordinary proceedings in the action; and does not have the effect to forbid the party stayed from obtaining a provisional remedy.4 But it does prevent serving a notice intended to limit the right of appeal. A stay after notice of entry of judgment is operative only in case judgment is entered. 46

And obtaining an order permitting the filing of a complaint nunc pro tunc violates a stay granted pending an order to show cause why the judgment should not be vacated because entered without a complaint.*

A stay to enable one to make a case and exceptions, is not a stay until determination of the exceptions.

A stay of a party does not, after his death, stay his representative from moving to continue the action. 49

Nor is a stay allowed unnecessarily to vitiate what has already been done under the sanction of the court, nor sanction what has been done in defiance of the court.51




11. - until decision.]— A stay expressed to be “until the decision” of an appeal, or until the decision of a motion (if the motion be one made to the court, and therefore requiring entry of an order), is not terminated by the announcement of a decision,

44 Lapeous v. Hart, 9 How. Pr. 541 (arrest allowed).

45 White 1. Klinken, 16 Abb. Pr. 109 (holding such notice a nullity); 8. P., Bagley v. Smith, 2 Sandf. 651.

So serving a notice of trial is a breach of an injunction staying the trial. Bird v. Brancker, 2 Sim. & Stu. 186; S. P., Clark r. Wood, 2 Halst. (N. J. Eq.) 458.

46 Kenney v. Sumner, 12 Misc. 86, 33 N. Y. Supp. 95. 47 Ward 0. Sands, 10 Abb. N. C. 60.

48 Douglas r. Haberstro, 10 Abb. N. C. 6 (allowing a motion of the defendant to amend the order of stay so as to make it until the determination of the exceptions).

49 Matter of Bainbridge, 67 Barb. 293; mem. s. C., 4 Hun, 674 (hence, notwithstanding the stay, such motion not having been made within a year, an order granting an application of the personal representatives to revive, was reversed).

50 Reid TM. Lindsey, 104 Pa. St. 156, 15 Wkly. N. of Cas. 134, holding that it does not impair a levy, even though the order does not expressly continue the lien.

51 The better opinion is that a stay of the enforcement of a judgment, though it prevents steps to carry it into execution, does not hinder the court from punishing a previous disobedience. Sixth Ave. R. R. Co. v. Gilbert Elev. Ř. R. Co., 71 N. Y. 430.

but continues in effect until entry of a formal judgment or order upon the decision. 52

When the order of court or judgment is entered, or the judge's order is made in such case, and a clause giving a further stay is not inserted therein, the former stay ceases without notice being given to the party who relied on the stay.53

If the decision contemplated be that of a motion made before a judge, not before the court, and therefore not requiring entry of an order, such a stay is terminated by the making of the order. 64

12. — until further order.]— There is room for much uncertainty about the meaning of a direction expressed to be “until the further order” of the court. This expression is construed in practice, with due reference to the subject of the order and the nature of the adjudication embodied in it.

In an action in which a part of the appropriate final relief is sought by anticipation, by a motion before judgment, an order granting such relief“ until the further order of the court,” means no more than until the determination of the merits; and if the court afterward award a judgment that is silent as to such relief, the silence being equivalent to a refusal, the previous order falls.

And upon the same principle, if, pending a motion for relief against proceedings, the moving party takes an order staying such proceedings until the further order of the court, he gains nothing more than by a stay until the decision of the motion, for on the entry of an order on the motion, though it be silent as to stay, the original stay falls. If, on the other hand, the court by order determines a question of right not in anticipation of judgment, and directs payment accordingly, until the further order of the court, the question of right may be deemed res judicała against an application for a further order, not founded on new facts.55

62 Mallory v. East River Ins. Co., 7 Hill, 192; Bowman v. Tallman, 3 Robt. 633.

53 Warren v. Wendell, 13 Abb. Pr. 187; Petrie v. Fitzgerald, 2 Abb. Pr. (N. 8.) 354; s. P., Cox v. Dorwin, 29 Hun, 293, holding a stay ordered by Bankruptcy Court, enjoining all proceedings in other courts “ until the further order of the court,” to be vacated ipso facto by its granting a discharge in bankruptcy.

54 Parmenter v. Roth, 9 Abb. Pr. (N. S.) 385. Here it appeared that the judge made an order on his decision, and the objection overruled was that the stay continued till service of the order.

55 Peareth v. Marriott, L. R., 22 Ch. Div. 182, 31 Wkly. Rep. 68 (reversing contrary decision below).

In a stay of proceedings not incidental to a motion to stay, this clause, unless the context indicates differently, means until the court either on a direct application or otherwise, makes some order inconsistent with the stay.

But it is not understood to give the party stayed a right to apply ex parte for such a further order, nor is it equivalent to leave to re-open the motion without

express leave.

13. Notice of stay.]— To secure the effect of a stay, service of the order on the attorney is not always practically enough. If proceedings which it is desired to stop are pending in another place in charge of counsel there, it may be desirable to bring the stay to his notice also.56 Service of notice in any way prescribed by the statute for service of papers upon an attorney, charges him with knowledge of it although he may have taken further proceedings before he actually receives it. 57

14. Disregarding irregular stay.]— It was formerly held that a stay of proceedings is not to be treated as a nullity merely because irregular, or even fraudulently obtained, by a party apply. ing for it in violation of special statutory restrictions on the general power of the court or judge.58 But an order made without jurisdiction is a nullity, and may be wholly disregarded. 59

The present practice, however, at least in New York, sanctions the disregard of a stay which on its face is granted in violation of law, unless the statute or a rule of court provides that the remedy is to vacate or revoke.

56 Ramsey v. Erie Ry. Co., 57 Barb. 450, 3 Lans. 181, holding that an order obtained by counsel proceeding in a distant place, in good faith and ignorant of the stay, was valid, and motion to set it aside denied.

57 Troy Carriage Works v. Muxlow, 16 Misc. 561, 38 N. Y. Supp. 938.

88 Gould v. Root, 4 Hill, 554. There has been some perplexity in the effort to reconcile this and the next cited decision, though rendered by the same able judge. But attention to the facts makes the contrast clear. In this case the commissioner had power to grant a stay, but the application to him was forbidden by the statute, because a previous application to another judge had been refused. It does not appear that this fact was disclosed to the commissioner, and hence the defect was not in want of jurisdiction, but on a statutory prohibition to exercise it under particular circumstances. In such case the remedy was to move to vacate. In the next case the stay was one which the commissioner had no power to grant under any circumstances. In such case the stay may be disregarded.

59 Spencer v. Barber, 5 Hill, 568.


But it is not enough that the stay is in violation of law, if the constitutional power of the court sanctions it; 60 nor that it is in violation of a general rule of court, if a statute sanctions it.61

15. Act in violation of stay.] — A step taken in the cause by the attorney or party, in violation of a stay, is a nullity to this extent, that it gives him no new right and no better position.

But an act of the court, such as an order or judgment, though obtained in violation of a stay, is not therefore absolutely void, but relief is to be had by motion.63

If the act so done affects a substantial right, as in the case of an execution issued in disregard of a stay of proceedings on the judgment, a motion by the party whose right is impaired is not to be deemed founded on mere irregularity so as to be defeated by omission to specify the ground in the notice or order to show cause as well as in the affidavits.64

16. Compliance with irregular, etc., stay.]— A person served with a stay which he might treat as ineffectual,65 is nevertheless protected in complying with it in good faith, though such compliance be what otherwise would be a breach of duty, as, for instance, where he is an officer of the court, bound to act but for a stay.

17. Vacating a stay.]— The rules which govern motions to vacate have been already stated. 66

60 Blackmar v. Van Inwager, 5 How. Pr. 367. Stay granted in wrong county irregular, but not void, because Supreme Court have inherent power under the Constitution, exercisable without distinction of county.

61 Van Kleeck v. Nichols, 63 How. Pr. 403, holding Rule 37 not operative to render void a stay of proceedings granted within ten days of circuit by a judge other than the one to hold circuit.

62 See, for instance, White v. Klinken, 16 Abb. Pr. 109; Bagley v. Smith, 2 Sandf. 651; Smith 1. Caldwell, Sneed (Ky.), 406. Whether an act other than a step is the cause is void, because done in contempt of the court, is another question.

For the plaintiff to apply for leave to discontinue does not violate a stay contained in an order for security for costs. Rourke 0. Domestic Sewing Mach. Co., 2 City Ct. Rer. (N. Y.) 359.

Harris v. Clark, 10 How. Pr. 415. See, also, People es rel. Cantrell v. Alker, 12 Hun, 88.

64 Jackson 1. Smith, 16 Abb. Pr. 201, 25 How. Pr. 476.

85 Roosevelt v. Fulton, 5 Cow. 438 (stay served without notice of motion); Ramsey v. Erie Ry. Co., 57 Barb. 450, 3 Lans. 181 (stay deemed void for want of jurisdiction because made in another district) ; Commonwealth v. Magee, 8 Pa. St. 240 (stay granted by judge in vacation without notice).

66 See pp. 91-95 and 103 of this volume. The Special Term may vacate a stay granted by the trial judge. Long v. Statiord, 103 N. Y. 274.

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