Pitman v. Smith ( 1909 )

Burr, J. (dissenting):

I agree with the other members of the court that the defendant Caroline A. Smith is entitled to relief restraining the plaintiff from proceeding, to a sale under execution issued under the judgment recovered by him, but I think that she has mistaken her remedy. Her remedy is by an action to enjoin him from so proceeding, in which action proper security may be given to indemnify the plaintiff for his damages in being restrained from enforcing his legal lien in case it appears that she has no equitable lien. Confusion seems to have arisen in the language of many decisions by reason of the fact that the distinction between a stay of proceedings in an action and an order enjoining the prosecution of another action is not kept in mind. An order staying proceedings in an action as the result of a motion must be made in the action sought to be stayed. It cannot be made in another action. If the purpose of the motion is to prevent the prosecution of another action by some one not a party to it, such relief must be by injunction in an independent action where by formal prayer such relief is demanded. (Belasco Co. v. Klaw, 98 App. Div. 74; Gilroy v. Everson-Hickok Co., 120 id. 207.) In each of the cases cited by the respondent either the application was by injunction (Pike v. Mechanics & Traders Bank, 81 Hun, 78), or the motion was made in the action which was sought to be stayed (Dolbeer v. Stout, 139 N. Y. 486), or the question of power was not passed upon. In Ryan v. Benjamin (128 App. Div. 51) a motion was made in the Supreme Court to stay proceedings in the Surrogate’s Court. The order granting the motion was reversed on the merits, and it was, therefore, unnecessary to consider the.question of power. In Burlingame v. Parce (12 Hun, 149) it does not appear in which action the motion was made. In Post v. B a Aiks (67 App. Div. 187) the question of power was not discussed in the opinion, although it seems to have been raised in the briefs submitted on the argument. The later decisions on the subject are those which I have cited, and I think they should be followed. I think, therefore, because of the mistaken remedy, that the order appealed from should be reversed, without prejudice to an action to enjoin the plaintiff from proceeding under his judgment, or to á motion for a temporary injunction therein in which proper security may be given.

Order affirmed, with ten dollars costs and disbursements.

CASES REPORTED WITH BRIEF SYLLABI AND DECISIONS HANDED DOWN WITHOUT OPINION.