Kirsner v. State Bank , 115 Misc. 404 ( 1921 )

Guy, J.

In 1917 plaintiff paid $360 to the defendant bank for transmission to his wife in Russia. The money was never paid to her; she arrived in this country in 1920, and plaintiff shortly thereafter demanded the return of the money so paid by him to defendant, which demand was refused. The action was begun by plaintiff by the service of a summons on the 10th day of December, 1920, which was endorsed “ Money had and received for transmission to foreign country,” and an answer was filed on December fourteenth in the form of a general denial and demand for a bill of particulars. No application was made for a stay or for the issuance of a commission to take testimony until the 3d day of February, 1921, when defend.ant, alleging on affidavits setting forth that under present conditions existing in Russia it was impossible for it to obtain the proof, necessary to establish its defense, moved for a stay “ until three months after the recognition of a government in Russia by the United States of America, and the appointment of and the installation of Ambassadors, Ministers and Consuls, so that a commission may issue to take testimony,” which motion was granted.

The stay granted is so indefinite and so uncertain in duration, its termination being made dependent upon the happening of events which may never happen, that it amounts in effect to a final disposition of the action. We are of the opinion that the court was without power to grant such a stay, and the order is, therefore, appealable. We are also of the opinion that the defendant has been guilty of laches in failing to apply for the issuance of a commission until after the day set for trial.

The order must, therefore, be reversed, with ten dollars costs, and the case set down for trial on the 2d day of June, 1921.

Whitaker and Weeks, JJ., concur.

Order reversed, with ten dollars costs.