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upon that calendar. If the said defendants request any other disposition of the appeal, the stay of proceedings granted shall cease, unless differently ordered by the Appellate Division upon such application.
[Said stay of proceedings is, however, without prejudice to the right of the plaintiffs to file, maintain and prosecute such actions in equity for the enforcement and collection of their judgments, as they may be advised, and the pendency of such action shall not hereafter be urged by the defendants as barring or interfering with the right of the plaintiffs to continue the supplementary proceedings before said referee, or to institute other proceedings after the stay of proceedings has expired or has been vacated.]
The proceedings before said referee are hereby adjourned without day during the pendency of the aforesaid stay, but at the expiration thereof they may be continued before said referee, and the judgment-debtor is hereby directed to appear before him on a notice of two days to his attorneys.
FORM No. 233. Notice of motion for stay for non-payment of costs of a former action.2
[As in Form No. 237 to *, continuing:] staying all proceedings by the plaintiff in this action until payment to the defendant of the costs of the former action referred to in the annexed affidavit [and granting to defendant an extension of time to plead or to otherwise move against the complaint herein until twenty days after payment of such costs], and for such other and further relief as may be just [with the costs of this motion.]
[If time to answer in the pending action is too nearly at an end to permit usual notice of motion and decision, either procure ex parte order extending time to plead, or obtain order to show cause with a provision for a temporary stay, as in Form 229, incorporating a provision in the order to show cause for an extension of time to plead until days after entry of order upon the motion.]
2 Such a stay is usually granted, where the causes of action are substantially identical, and plaintiff has been non-suited or the former action, has been dismissed upon his application. See Spaulding v. Am. Wood Board Co., 58 App. Div. 314, 68 N. Y. Supp. 945; Cook v. Chicago, etc., R. Co. (Iowa), 99 N. W. Rep. 735, Plumley v. Simpson, 31 Wash. 147, 71 Pac. Rep. 710.
Plaintiff's poverty, and the dismissal of his former action because of failure to obtain material evidence which is now procurable, may prevent the granting of the stay. Plumley v. Simpson, supra.
3 This motion should be made before issue joined, and the granting of a stay will not of itself extend time to plead. See paragraphs 2 and 3, supra, p. 413.
FORM No. 234. Affidavit upon application for stay for non-payment of costs of a former
action. [Title of court and cause.] [Venue.]
A. B., being duly sworn, says that he is [attorney for] the defendant above named. That heretofore and in the [Supreme Court for the county of Erie] in this State, the above-named plaintiff brought an action against deponent upon a cause of action identical with the cause of action alleged in the complaint herein Tas appears from a copy of the complaint in said former action hereunto annexed marked “A”]. That deponent appeared and answered in said former action, and such proceedings were thereafter had that the said action was thereafter and on the day
, 19 , dismissed, and judgment was thereafter duly entered therein in the office of the clerk of the county of on the day of , 19 , dismissing said action with
dollars costs to be paid by said plaintiff to this defendant [as fully appears by a certified copy of said judgment hereunto annexed, marked “ B.”]
That no part of the said sum of dollars awarded to defendant against said plaintiff as the costs of said former action have been paid.
FORM No. 235. Order for stay until payment of costs of former action, with extension of
time to plead. [After appropriate recitals.] ORDERED, that said motion be and the same is hereby granted [with ten dollars costs], and that all proceedings in this action on the part of the plaintiff (except to review this order], be and they are hereby stayed until payment by said plaintiff to the defendant of the sum of dollars costs of the previous action awarded in the judgment entered therein on the day of , 19 ; and it is further
ORDERED, that defendant's time to plead herein, or to make such motion as to the complaint herein as he may be advised, is hereby extended until (twenty] days after the payment of said costs of said former action.
FORM No. 236. Notice of stay by non-payment of costs or other money awarded by order. (Title of court and cause.]
Please take notice that, by virtue of section 779 of the Code of Civil Procedure, your proceedings in this action are stayed for non-payment of [ten dollars, costs of motion], granted by the order of this court, dated , , 19, a copy of which was served upon you on the day of , 19, and that I object to your taking any further proceedings herein until said sum is paid. [Dated.]
[Signature and office address of],
Attorney for [Address] TO
FORM No. 237. · Notice of motion to vacate stay of proceeding8.5 [Title of court and cause.]
Please take notice, that upon [the annexed affidavit of A. B., verified on the day of , 19 , and upon the pleadings and proceedings in this action], application will be made to this court, at a Special Term thereof, to be held at the City Hall (or, County Court House], in the [Town] of , on the day of , 19 , at the opening of the court [or, at o'clock in the noon), or as soon thereafter as counsel can be heard [or, if the application is to a judge and not to the court, to Hon. J. K., a judge of the court at , in
on the day of
, 19 , at o'clock in the noon), for an order* vacating and setting aside the stay of proceedings (and extension of time] granted herein by , on the day of , 19 , [if partial relief only is asked indicate it, for instance, thus:- so far as the same affects the proceedings of the plaintiff to bring in additional parties — if
See paragraphs 19-21, pp. 422424 labore).
This notice is not necessary, but may affirmatively disprove a claimed waiver.
5 See paragraph 17, p. 421 (above). See also pp. 91-95 and 103 of this volume.
6 An extension would not necessarily fall with the stay.
based upon any claimed irregularity, see as to stating grounds, p. 122]* or for such other or further relief as may be just (with costs of this motion]. [Date.]
[Signature and office address of],
Attorney for [moving party]. [Address:] To
Attorney for (adverse party].
FORM No. 238. Notice of motion to vacate proceedings in violation of stay.? [As in last Form, substituting between the * *] vacating and setting aside, as null and void all proceedings upon the part of the (plaintiff] in said action taken by him since he was stayed [under section 779 of the Code of Civil Procedure, by reason of his non-payment to the defendant within the time prescribed by law, and the order of this court, dated the day of 19 , of the sum in said order directed to be paid — continue as in last Form.] 8
[For provision staying proceedings meanwhile see Forms Nos. 229, 230, pp. 424, 425 (above).]
7 See paragraph 15, p. 421 (above). See note 5 (above).
81f certain definite proceedings have been taken to the knowledge of
the moving attorney, they may be conveniently specified, and a general clause added, “and all other proceedings taken in violation of said stay."
1. Power to make.
ney's control. 7. Stipulation not to appeal, etc. 8. Stipulation by client. 9. Stipulation to be construed with
reference to its purpose. 10. Relief from stipulation. 11. Rules of discretion. 12. Actions affecting stipulation.
be entered upon referee's re
port. (242) — that one cause abide the re
sult of another. (243) The same; reserving question
of damages. (244) Stipulation limiting issues. (245) Stipulation admitting facts. (246) Stipulation admitting correct
ness of document or transcript.
1. Power to make.]-A stipulation is an agreement as to the conduct of the proceedings in a particular cause ;' and the power to make such agreement for conduct of a pending cause, rests solely with the attorney of record of the client who is to be bound, if he has an attorney of record ;10 the client cannot make it, 11 por can counsel, unless with the sanction of the attorney, express or implied.12 A stipulation should be distinguished from an incidental admission or declaration of the attorney; he is not empowered to make admissions in conversations with third per
9 An attorney cannot bind his client by a general agreement with other attorneys not to try causes during a particular period, as during summer months. Robert v. Commercial Bank, 13 La, 528, 33 Am. Dec. 570. Here plaintiff disavowed the agreement, and employed another attorney (who had not signed the agreement) to try the case. Held, not error to deny defendant's motion for continuance, and give judgment for plaintiff.
10 L'pon a dispute as to whether an attorney's authority had been revoked prior to making the stipulation, the court may relieve the party from it where no prejudice to the adverse party will result. Sperb v. Met. Elev. R. Co., 10 N. Y. Supp. 865, afl'd, 123 N. Y. 659.
11 Mott v. Foster, 45 Cal. 72 (stipulation made by the plaintiff. Order denving motion for new trial affirmed). See paragraph 8, post.
12 Abb. Tr. Brief for Civ. Jury Cases (2d ed.), 40.
Nightingale r. Oregon Central Ry. Co., 2 Sawy. 338 (setting aside order ou continuance based on a stipulation made by counsel resident in another State and not a member of the bar of the court). See also p. 119 of this volume.
The stipulation of counsel having charge of the trial stand upon a different footing, and are enforced equally with the stipulations of the attorney of record. See Slavin r. Germain, 64 Hun, 506, 19 N. Y. Supp. 492.