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In the Court of Appeals a stay may be revoked by the judge who made it,67 or, in case of his absence or inability to act, by either of the other judges. 68
The act of a judge in subsequently granting an order incompatible with the stay he had previously granted, if done with full knowledge of the facts, may be deemed in so far a modification of the stay, if done on notice in those cases where notice is required.
On application to the court on notice to vacate a stay, even on a ground for which it might have been disregarded, the court may grant a stay by directing that the order stand. 70
Until the order of the court relied on as vacating a stay has been entered, proceedings in disregard of it are irregular.“
18. Stay pending appeal from refusal to stay.]- On appeal from an order denying a stay, the appellate court have power to grant a stay pending appeal, but will not do so except in a very clear and urgent case." When a stay is refused or vacated, and it is desired to appeal, the better practice is to ask the court refusing a stay to allow a temporary stay pending the appeal, on condition of speeding the appeal.
19. Stay by non-payment of costs, or money awarded by order.] - The court may refuse to allow a party to proceed when in default by non-payment of costs of a former action,74 though there is not complete identity between the two." This rule has been extended in New York by a statutee declaring that “where cost3
67 N. Y. Ct. of Appeals Rule No. 18.
68 This seems also to have been the common-law practice in the Supreme Court. 3 Cai. 106, 5 Cow. 439.
69 Fullerton t'. Gaylord, 7 Robt. 551 (holding that an order staying the examination of the defendant as a witness for ten days, unless a bill of particulars shall be sooner served, vacated a stay of the examination previously made).
70 Clumpha v. Whiting, 10 Abb. Pr. 448.
71 Devlin v. Mayor, etc., of N. Y., 9 Daly, 331 (holding entry and service necessary, and that to take another order before the vacatur had been thus perfected, yas irregular).
72 People v. Manhattan R. R. Co., 9 Abb. N. C. 448. 73 See Form No. 232, p. 426 (below).
74 See Muratore v. Pirkl, 109 App. Div. 146, 95 N. Y. Supp. 855, and cases cited.
75 Spaulding v. Am. Wood Board Co., 58 App. Div, 314, 68 N. Y. Supp. 945. 76 N. Y. Code Civ. Pro., & 779.
of a motion," or any other sum of money directed by an order to be paid, are not paid within the time fixed for that purpose by the order, or, if no time is fixed, within ten days after service of a copy of the order,
all proceedings on the part of the party required to pay them, except to review or vacate the order, are stayed, without further direction of the court, until payment thereof.” A similar stay arises upon an award of costs by interlocutory judgment deciding an issue of law, where an issue of fact remains undisposed of.78
20. effect.]— This stay is absolute and peremptory against further proceedings in the same action by the party in default (or his assignee),except to review or vacate the order imposing the costs. 80
But neither a motion to vacate the order, nor an appeal from it, nor any proceedings necessary for the due and orderly bringing such motion or appeal to argument, as for instance the reinstatement of such an appeal after it has been dismissed, are stayed.81
If the party in default makes a motion, except to vacate the order, it will be denied with costs.82
But the stay is not operative until default in payment; and there is no such default until the expiration of ten days from the service of the order or the time fixed in the order for payment.
If the objection is raised against a subsequent proceeding, the party shown to have been ordered to pay must show payment.
77 This is held to include costs on appeal from an order. Phipps v. Carman, 26 Hun, 518; Hunt v. Sullivan, 79 App. Div. 119, 79 N. Y. Supp. 708, 33 Civ. Pro. Rep. 294, 12 Anno. Cas. 328. But does not include motion costs of a former action for the same cause. Wessels v. Boettcher, 142 N. Y. 212.
78 Bigelow v. Drummond, 109 App. Div. 132, 95 N. Y. Supp. 1027. 79 Gardenier v. Eldred, 15 N. Y. Supp. 819, 21 Civ. Pro. Rep. 221.
80 National Bank of Port Jervis v. Hansee, 15 Abb. N. C. 488; Newkirk v. Hooker, 11 Misc. 719, 31 N. Y. Supp. 1131; Kellogg, etc., Co. v. Glen Tel. Co., 121 Fed. Rep. 174.
But a failure to pay costs supplementary proceedings, stays only the supplementary proceedings in the action. Godfrey v. Pell, 5 Monthly L. Bul. 69. And failure to pay the costs of a former action does not of itselt operate as a stay. See Patcher v. D. & H. R. R. Co., 62 App. Div. 543, 71 N. Y. Supp. 122.
81 Anon., 4 Abb. N. C. 11. 82 Thaule v. Frost, 1 Abb. N. C. 298; Lyons v. Murat, 4 Abb. N. C. 13. 83 Marks v. King, 13 Abb. N. C. 374; Pettibone v. Drakeford, 1 How. Pr. (N. S.) 141.
No presumption exists in his favor that such costs have been paid. 84
To prevent the claim of any waiver of the stay, depending on silence, notice that the stay is insisted on may appropriately be given.
21. — waiver.]— This stay, although statutory, the adverse party may waive. 56
Thus it is waived by giving notice of trial,87 or entering upon the trial,88 or receiving and retaining papers upon appeal and notice of argument upon an appeal from another order,89 or proceeding to enforce payment from sureties on an undertaking, or out of a deposit in court.90
FORM No. 229.
Order to show cause containing a stay of proceedings pending motion.91 [Title of court and cause.]
[As in an ordinary order to show cause (see Form 60), continuing at the foot of the order] : And in the meantime, and until the hearing and determination of this motion (and the entry of
84 Ager v. Ager, 1 Monthly L. Bul. 2.
80 N. Y. Code Civ. Pro., § 779. Nor does it operate to prevent the party from being heard in self-defense. Tracy v. Lechstenstadter, 113 App. Div. 754.
87 Mattice v. Shelland, 76 App. Div. 236, 78 N. Y. Supp. 537, 12 Anno. Cas. 64 (at least to extent of permitting adversary to take part in the trial); Woodbridge v. Nelson, 1 Monthly L. Bul. 27; Reeder v. Lockwood, 30 Misc. 531, 62 N. Y. Supp. 713.
88 Dout v. Brooklyn Heights R. R. Co., 84 App. Div. 618, 82 N. Y. Supp. 996. 89 Allen v. Becket, 85 N. Y. Supp. 192.
90 In Tunstall v. Winton (N. Y. Sup. Ct., 1882, unreported), defendant having been arrested was allowed to deposit money with the clerk in lieu of bail. Subsequently costs of a motion to vacate the order of arrest and of an appeal thereon remaining unpaid, plaintiff moved for an order that they be paid out of the deposit. Held, that this motion (being likened to an action on an undertaking) was a waiver of the stay, and this decision was affirmed on this ground at General Term.
91 See paragraph 8, p. 417 (above).
For the longer stay which may be made on appeal and in some other cases, see the particular proceedings
in which they are allowed. As to how and where to apply for a stay, see, especially, paragraphs 4-7, pp. 414-417 (above).
an order thereon],92 but not exceeding twenty days from the date hereof,93 let all proceedings on the part of the plaintiff herein be stayed [ and the sheriff of the county of is stayed from interfering with or removing said ,-, or, and the proceedings of the sheriff on the execution herein, so far as relates to specifying particular matters, if any, in question — in said affidavit referred to, are, meanwhile, also stayed.]
[Authentication, etc., as in next Form (below).]
FORM No. 230.
Shorter form.94 [Title of court and cause.] On the within affidavit of A. B., verified on the
day of 19 let all proceedings on the part of the [plaintiff] in the above cause be stayed until [here state limit] but not exceeding twenty days from the date hereof. [Date.]
[Signature of judge and
initials of title.] FORM No. 231 Order of court or judge staying proceedings specifically.95 [For caption and various recitals, see Form No. 101, p. 170.]
ORDERED, that all proceedings on the part of said Y. Z., and his attorneys in this action [or, upon the judgment herein recovered; or, under the order herein made, dated and entered the day of 19,] [including the subpænaing of witnesses for trial],96 be, and the same are hereby stayed [here state limit, for instance, thus], until said shall produce and file with the clerk of this court the [describing paper], and serve on the a copy
of the same with notice of such filing. [Or, thus:] until the determination of the motion for
92 A stay until decision falls with the decision and before service of the order made thereon (Parmenter v. Roth, 9 Abb. Pr. (N. S.] 382) unless the decision continues the stay (Warren v. Wendell, 13 Abb. Pr. 187).
93 The date of the order fixes the time of the beginning of the stay. Marvin v. Lewis, 12 Abb. Pr. 482.
94 Approved in Bailey v. Caldwell, 3 Johns. 451, but held ineffectual because irregularly served.
See note 91 (above).
95 Notice of motion may be as in Form No. 237, substituting for the words between the * *, a statement of relief, as in this Form.
96 See Court Rule No. 37 providing that in some cases orders staying proceedings do not prevent subpænaing witnesses.
97 See paragraph 11, p. 418 (above).
now pending herein. [Or. thus:] until days after the entry and service on the attorneys for said
of the order to be made and entered on the decision of the motion for appeal from the herein).
[Or, if a judge's order ex parte:] for twenty days from the date of this order, 99 or the sooner determination of the motion for
now pending herein. [Direction to an officer of the court may be thus:] and the sheriff is hereby directed to take into his custody the under the execution herein, but to stay all further proceedings on said execution until as aforesaid.
[Saving clauses may be inserted, thus:] except that said may file security for costs, and proceed with his application to bring in additional defendants. [Or, thus:] But nothing herein contained shall prevent said
from proceeding to take testimony by deposition or otherwise for said motion, nor from amending his pleadings as he may be advised.
[Authentication as in Form No. 108, p. 265 (above).]
FORM No. 232.
Clause in an order intended to be appealed from, allowing stay pending the
appeal.1 [At the end of order, add direction, for instance, as follows:] and on motion of said 0. P., attorney for defendant, it is further ORDERED, that the proceedings supplementary to execution, now pending before said referee, for the examination of said defendant as judgment-debtor, be and they are hereby stayed until the hearing and determination of the appeal to the Appellate Division to be taken by the defendant from this order; but only on condition, that a notice of such appeal be served on the plaintiff's attorneys on or before the 19 , that all the papers to be printed, filed and served on said appeal shall be so printed, filed and served on or before the
19 that said appellants will place the appeal upon the Appellate Division calendar for the day of 19 and will be prepared to argue the same when first reached
490. But it is not safe to rely upon this notion.
99 The twenty days are computed from the date of the order, though it be antedated. Marvin P. Lewis, 19 Abb. Pr. 482.
1 See p. 422, paragraph 18 (above)