Fermetal Steel Corp. v. Western Steel Corp. , 182 N.Y.S.2d 100 ( 1958 )

Francis X. Conlon, J.

Motions numbered 85 and 94 on the calendar of December 2, 1958 are consolidated and will be decided together. These motions are made by two defendants in the same action and request extensions of time to serve their answers until five days after the disposition of pending appeals from adverse decisions on motions addressed to the complaint. On the decisions from which they are appealing the court provided that answers be served within 10 days after service of copies of the orders with notice of entry. It is this time that they seek to enlarge. The plaintiff does not contest on the merits but in memoranda argues that this court does not have jurisdiction. While this contention is incorrect as section 98 of the Civil Practice Act permits such extension of time in the discretion of the court, nevertheless the court does not believe these motions should be granted. They are in effect motions requesting a stay pending appeal and will be so treated. Under section 615 of the Civil Practice Act, the Supreme Court or a Justice thereof may stay execution of an order pending appeal. However, as is the ease here, the court would have no power to stay proceedings on an order under which there would be no execution (Kessel v. Virgin Isle Hotel Corp., N. Y. L. J., June 15, 1954, p. 13, col. 3). Only the Appellate Division may entertain such motion pursuant to section 613 of the Civil Practice Act. Accordingly, the motions are denied without prejudice to such application as the defendants may make to the Appellate Division.

Settle order.