Ferry v. Bank of Central New York , 9 Abb. Pr. 100 ( 1858 )

Mullen, J.

The order granted in January, 1858, swept away every thing that had been done in the suit up to that time. The bank having, in the moving papers, denied many of the most material allegations in the complaint, and prayed leave to come in and defend, permission to answer was granted by the order referred to.

But the court having restored the bank to its directors, it was] very proper to provide that the plaintiff should be permitted to discontinue his suit. Twenty days were allowed him in which to determine whether he would elect to discontinue, and to serve a notice of his election on the defendant’s attorney. A notice of plaintiff’s election to discontinue was enough.

This notice was served on the 13th of September last. The ' order, under which it was served, was made the 21st of January, and a copy served on the plaintiff’s attorneys on the 4th of February. The notice of election was not served within twenty days from either of those dates, and unless the appeal operated to extend the time, or to stay the running of the time, then the right to elect was gone, and the duty imposed on the defendant by the order of January, in the event of the plaintiff’s electing to discontinue, never attached.'

The Code makes no provision as to the effect of an appeal from an order. It does provide, however (§ 469), that the former rules and practice, not inconsistent with the provisions of the Code, should continue in force. It was well settled under the old system that an appeal from an interlocutory order, did not operate as a stay of proceedings. (1 Barb. Ch. Pr., 392, 393.) There is a great difference of opinion among the judges on this question, which prevents their opinions from being taken as authority on either side of the question, and preferring, as I do, to follow a well-settled rule of practice, rather than to go in pursuit of new ones, I am constrained to hold that an appeal from the order in this case did not operate as a stay.

But if it should be held to operate as a stay, it surely could not enlarge the time within-which the plaintiff was bound to notify defendant of his election; to give such an effect to an appeal would be holding out a premium for disobedience to orders.

The order of the 21st of January, allowing plaintiff to discontinue, not only without costs, but entitling him to costs from the defendant, was obviously granted as a fair equivalent for the discontinuance of what might be deemed an unnecessary litigation, as the order virtually disposed of the whole merits of the action. The plaintiff was not willing to accept the terms offered, rejected the conditions, and sought by appeal to overturn the order. He fails in the appeal, and now comes in and asks that he be permitted to derive all the benefit of the order, that he would have done if he had not appealed, but served his notice of election to discontinue within the time specified in the rule. This I think he cannot do. The terms granted, and imposed by the order were granted, not as matters of right, but of favor, and not having been accepted, the plaintiff cannot now demand them as matter of right.

It was only, in the event that plaintiff gave defendant notice of his election to discontinue, that the duty to pay costs, &c., &c., was imposed on the defendant. No such notice having been served in conformity with the rule, all that part of the order from the close of the first paragraph in folio 113 to the end of the order becomes wholly inoperative.

The cause seems to be at issue on complaint and answer, and it can now only be terminated by a trial of the issue, or a voluntary discontinuance.

For these reasons the motion is denied, but without costs to either party.