Page images



(The practice as to stays in general, as incidental proceedings in the cause, is stated here, once for all, reserving, however, for the proper place in later chapters, the forms of stays of a particular character or for particular purposes, such as perpetual stay of a vexatious action, or stays upon appeal.)

1. Distinction between stay,

hibition, and injunction, 2. Stay not an extension. 3. At what stage of action granted. 4. Mode of obtaining. 5. -- in what court. 6. Power of a judge out of court

er parte. 7. Different classes. 8. Stay for purpose of motion. 9. On appeal; special proceedings. 10. Construction of a stay. il. Until decision. 12. Stay until further order. 13. Notice of stay. 14. Disregarding irregular stay. 15. Act in violation of stay. 16. Compliance with irregular stay. 17. Vacating a stay. 18. Stay pending appeal from re

fusal to stay. 19. Stay by nonpayment of costs, or

money awarded by order. 20. - effect. 21. — waiver.

FORMS. (229) Order to show cause contain:

ing a stay of proceedings

pending motion. (230) Another :- shorter Form. (231) Order of court or judge star.

ing proceedings specifically. (232) Clause in an order intended to

be appealed from, allowing

stay pending the appeal. (233) Notion of motion for stay for

non payment of costs of a

former action. (234) Affidavit upon motion for stay

for nonpayment of costs of

a former action. (235) Order for stay until payment

of costs of a former action,

with extension of time to

plead. (236) Notice of stay by nonpay.

ment of costs or other

money awarded by order. (237) Notice of motion to vacate

stay of proceedings. (238) Notice of motion to vacate

proceedings in violation of stay.

1. Distinction between stay, prohibition, and injunction.A stay must, in general, be sought in the action, and from the court or a judge of the court & the proceedings in which it is sought to suspend.10

The Supreme Court, however, has power, by writ of prohibition, to arrest the proceedings of an inferior tribunal in excess

9 Or a judge authorized to make an order in the action. See MOTIONS, pp. 98-101 of this volume. ** 10 Wood v. Swift, 81 N. Y. 31; Liftchild v. Smith, 7 Robt. 306 (denring a motion to compel the defendant to discontinue an action brought in another court, because to grant the motion would be an unjust interference with the right of a suitor to select his own tribunal).

of its jurisdiction; and by statute in New York, the Appellate Division has the same power over a judge or Special Term. And a court of equity may, by injunction, forbid a party from proceeding in another court.12 These are distinct remedies not sought by ordinary motion.13

Defendants seeking a stay may, however, instead of bringing a fresh action, put in an answer constituting a counter-claim, and asking an injunction as affirmative relief, and under the New York statute, in such case a preliminary injunction may be granted upon the answer as setting up a counter-claim.14

2. Stay not an extension.] - A stay of proceedings is not necessarily an extension of the time of the party obtaining it. It does not alone prevent the lapse of time from putting him in default, although it stops his adversary from proceeding on his default.15

On the other hand, the statutory restriction against the allowance of ex parte stays by a judge out of court, for more than twenty days, does not apply to orders extending the time of the applicant to plead, though such orders may have the effect to delay The subsequent proceedings of the adverse party.16

3. At what stage of action granted.]— A defendant who has not appeared is not entitled to a stay of proceedings, nor an extension of time to appear."7 But the court has power to grant it. If the application is to stay proceedings in the pending action, until determination of another prior action, issue should be first joined. 18

11 N. Y. Code Civ. Pro., $ 2093.

12 The substantial distinction in the effect of these two remedies is, that prohibition acts upon the court, the injunction on the party only. It is improper for a court to make an order for a stay of proceedings in another court of record; such relief must be had by injunction, with security. Deyo r. Morss, 14 N. Y. Supp. 841, 38 St. Rep. 477; Baker v. Baker, 36 App. Div. 486, 55 N. Y. Supp. 824; Purdy v. Baker, 86 N. Y. Supp. 1065.

13 See Wood v. Swift, 81 N. Y. 31.

14 N. Y. Code Civ. Pro., 8 720. Contra, under the California Code, Peterson r. Weisbein, 70 Cal. 423, where it was held that a motion for injunction could not thus anticipate the trial of the merits of the cross-complaint.

15 Platt v. Townsend, 3 Abb. Pr. 9, 5 Duer, 668 (holding that an order for a bill of particulars, although accompanied by a stay of proceedings, no longer operates of itself to enlarge the defendant's time to plead. Order vacating the judgment reversed, but defendant allowed to answer). For this distinction see p. 48 of this volume.

16 White 0. Angel, 2 Civ. Pro. Rep. (McCarty) 440; Condon v. Church of St. Aug., 14 Misc. 181, 35 N. Y. Supp. 382.

17 Bragelman v. Berding, 15 Abb. Pr. (N. S.) 22. The reason is that usually he must acknowledge the jurisdiction of thą court if he asks its indulgence. But see chapter V, post.

In Bonnell v. Neely, 43 Ill. 288, it was held that a statute authorizing "Q partyout of term, intending to move to set aside or quash any execution, replevin bond, or other proceeding, to apply to a judge at his chambers, for an order staying proceedings as preliminary to a notion to be made in terni

If the application is to stay proceedings until the costs awarded in a former action are paid, the motion should be made before issue joined. 19

4. Mode of obtaining.]— An order for a temporary stay is obtained by applying to the court or to a judge thereof, or to a county judge,20 on an affidavit stating the situation of the cause, the reason why a stay is desired, and the facts which render it necessary and indicate how long a stay will probably be required.

If the cause has been noticed for trial at Trial Term, and application is not made in time to serve the stay ten days before the term, the application should be at the Trial Term, or to the judge appointed to hold it, (unless the stay is contained in an order to show cause returnable on the first day of the term) as another judge ought under the rule21 to refuse to interfere ; 22 for after a cause is on the calendar and noticed for trial, it is deemed under the control of the trial court, and a stay obtained from another judge or branch of the court is often disregarded by the former.23

time to quash the same, applies only to "a party" to the proceedings sought · to be quashed, and not, for instance, to a purchaser of the premises at fore closure sale. Order granting stay therefore reversed.

18 Ogden r. Pioneer Iron Works, 91 App. Div. 394, 86 N. Y. Supp. 955; Fuller 1. Read, 15 How. Pr. 236.

19 Spaulding 1. Am. Wood Board Co., 58 App. Div. 314, 68 N. Y. Supp. 945. There need not be a complete identity of the two actions in order to justify the granting of such a stay. Id. Where previous action was dismissed through plaintiff's sole fault, the non-payment of the costs operates as a stay in a subsequent action. Ingrosso v. B. & 0. R. R. Co., 105 App. Div. 494, 94 N. Y. Supp. 177. A stay will not be granted, however, because of the pendency of a prior action unless it appears that the result of the prior action will netessarily obviate the trial of the later one. See Jenkins 1. Baker, 91 App. Div. 400, 80 N. Y. Supp. 957.

20 See pp. 98-101 of this volume.

21 N. Y. Gen. Rule No. 37. Does not apply to first district. Dictum in Oaklev v. Cokalete, 16 Apr. Div. 65, 44 N. Y. Supp. 1070, that the rule was broad enough to include special terms for trials.

22 Walsh . Sun Mut. Ins. Co., 2 Robt. 646, 17 Abb. Pr. 355. As to power, however, see pp. 93 and 420 of this volume.

23 Bank of Genesee 1. Spencer, 15 How. Pr. 14. See Gregory r. Stout, 6 Inill, 380; Hasbrouck 1. Ehrich, 7 Abb. Pr. 76.

5. – in what court.]— If the stay is merely to endure pending some event in the same or another action, it may usually best be sought by motion; if a perpetual stay, it will usually best be sought by action, unless it be founded on a discharge or other judicial decision, or clear evidence of vexation, and does not involve questions inappropriate to be tried on affidavits, in which case it may be sought by motion.24

The motion in either case should be made in the action which it is sought to stay.25

Even the bringing into the present action, of the party who is prosecuting the rival adverse action against the same defendant, does not make it proper, in an ordinary case, to grant an order in the present action enjoining the other action; but the defendant should apply for a stay in the other action.26

Where, however, both actions are pending in the same court, in different districts or departments, the court may, acting in one action, stay all the proceedings before it in another action, though this power is to be exercised only in extreme cases.27

6. Power of a judge out of court,- ex parte.]— If a stay of inore than twenty days is asked from a judge, instead of from the court, for any other purpose than to stay proceedings under an order or judgment appealed from, notice of application must be given to the adversary,28 unless there is some special provision of law, dispensing with notice in the particular case. 29

The twenty days limit cannot be evaded by taking successive ex parte orders to continue substantially the same stay.

24 On this question, see Watt v. Rogers, 2 Abb. Pr. 261, and N. Y. & Harlem R. R. Co. v. Haws, 56 N. Y. 175, and pp. 77–81 of this volume.

* Dederick r. Hoysradt, 3 Code Rep. 86, 4 How. Pr. 350; Savage v. Allen, 59 Barb. 291, aff’d, 54 N. Y. 458; Purdy v. Baker, 92 App. Div. 242, 86 N. Y. supp. 1065; Belasco Co. v. Klaw, 98 App. Div. 74, 90 N. Y. Supp. 593. 28 Wood v. Swift, 81 N. Y. 31 (conflicting claims to recover on life policy).

27 Erie Ry. Co. v. Ramsey, 45 N. Y. 637; Phænix Foundry v. North River Construction Co., 33 Hun, 156. ** N. Y. Code Civ. Pro., 8 775.

» The principal cases of express statute authority under the N. Y. statutes, are a stay pending an order that plaintiff's attorney in ejectment produce his authority (8 1513); and a stay to give opportunity to apply for the removal of a cause from the City Court of the city of New York, or a County Court, to the Supreme Court (88 319, 345).

Security for costs. Washburne v. Langley, 16 Abb. Pr. 259.

After one such order a prolongation of the stay must be sought on notice. 30

In the New York Court of Appeals any one of the judges may make orders to stay proceedings, which, when served with papers and notices of motion, shall stay the proceedings according to the terms of the order.31 Any order may be revoked or modified by the judge who made it; or, in case of his absence or inability to act, by either of the other judges. 32

After a court has granted one stay, application to a judge, instead of the court, for a further stay, is irregular. 33

Judicial sales in partition and foreclosure cannot be stayed by a judge out of court, except on at least two days' notice.**

7. Different classes.]— Applications for stay are more commonly either (1) Because of some alleged fault or irregularity of the adversary, on which it is claimed that his proceeding should be stopped, at least until he corrects it, in which case the stay is permanent or indefinite, its termination commonly being contingent on the adversary's correcting his course;

(2) Because the applicant desires to take some proceeding, or secure some relief, before the adversary goes further, in which case a stay for a definite period is sometimes sufficient, or

(3) Because the proceeding is so clearly futile that the time of the court and the applicant ought not to be taken up with it.

In the first class of cases the order should be an order of court made on notice ; 35 but an order to show cause, with star mean

30 Marvin v. Lewis, 12 Abb. Pr. 482, holding that a judge out of court, without notice, has no more right to grant two successive stays of twenty days each, than one of forty days.

31 Rule 16. A temporary stay of a remittitur may be valid, though not accompanied by notice of motion. Cushman v. Hatfield, 52 N. Y. 653, 15 Abb. Pr. (X. S.) 109. A stay of proceedings of a party pending return of the remittitur to the Court of Appeals, may be granted by a judge of that court for a period of more than twenty days. Franklin Bank Note Co. 8. Maokey, 158 N. Y. 683.

32 Rule 16.

33 Stansbury v. Durell, 1 Johns. Cas. 396, Col. & C. Cas. 102; Sales R. Woodin, 8 How. Pr. 349. Especially if conditions imposed by the court have not yet been performed.

34 N. Y. Gen. Rule No. 67.

A stay in violation of this rule may be disregarded. Asinari v. Volkening, 2 Abb. N. C. 454.

35 Mitchell 1. Hall, 7 How. Pr. 490 (saying “the safest and best practice is to make it an order of court, which will give it a vitality commensurate with the necessities of the case "); Bank of Genesee v. Spencer, 15 How. Pr. 14; Den r. Matlock, 2 Harr. (N. J.) 354 (where the court declined to hear a motion for a stay without notice).

« PreviousContinue »