Sales v. Woodin

Harris, J.

It is provided by law, that “ no order to stay proceedings for a longer time than twenty days, shall be granted by a judge out of court, except upon previous notice to the adverse party.” Here, proceedings have already been stayed forty days, by orders made without notice to the adverse party, and the application is for a further stay of twenty days. Such practice is a clear violation of the spirit, if not the letter, of the provision to which I have referred. The obvious intention of the legislature was, that the power of a judge to arrest the proceedings of a party, by an ex parte order, should be limited to twenty days. To effect a stay for a longer time, by a series of orders, each hy itself, within the statutory limit, but in the aggregate, exceeding that limit, is but an evasion of the statute. It is but an attempt to accomplish indirectly, what could not be done directly. The evil, against which the legislature intended to provide, by thus restricting the power of the. judge in granting an ex parte order, is increased rather than diminished by sanctioning such a course of proceeding. The plaintiff’s attorney would have been justified in disregarding eách of these twenty day orders; certainly the last one, for, in granting it, the judge must be held to have exceeded the jurisdiction conferred upon him by law.

These orders were void for another reason. It is a well settled and long established rule that an order to stay proceedings, in order to render it effectual, must be accompanied with notice of a motion. Roosevelt agt. Fulton, (5 Cowen, 438; Graham’s Pr. 680;) Schenck agt. McKie, (4 Howard, 246.) The order, as was said in Chubbuck agt. Morrison, (6 Howard, 367,) is only a means to an end. The end to be attained by the stay of proceedings must be indicated in the notice that accompanies or precedes the order. Hence it is, that an order to stay proceedings for any given number of days, is never proper. It should always he limited by the time when the party can make application for the relief he seeks.

In this case, the defendant has already appealed from the order denying his motion for a new trial. The notice which is requisite to give efficacy to an order staying proceedings has already been served. The defendant now seeks to suspend the plaintiff’s proceedings until he can be heard upon the appeal. In this he is probably right. But if he is, it cannot be effected by procuring a ■ fresh order to stay proceedings every twenty days, until the appeal can he argued. He should have obtained an order to show cause why the proceedings should not thus be stayed, upon some day within twenty days, and in the mean time directing that the proceedings be stayed.

The defendant may yet have such an order.