Douglas v. Haberstro — 10 Abb. N. Cas. 6

Majority

p. 6

DOUGLAS v. HABERSTRO.

N. Y. Supreme Court, Fourth Department, Eighth District ;

Special Term,

August, 1881.

Headnote

Exceptions to be Heard at General Term.—Stay op Proceedings.

Under Code Civ. Pro., § 1000,—regulating exceptions directed to be first heare? at general term, from which section the former provision that judgment is to be there given is omitted,—the order for such hearing should contain an express direction to stay proceedings, if a stay be desired.

A stay for sixty days, to enable the unsuccessful party to make case and exceptions, is not equivalent to a stay until determination of the exceptions.

Motion to amend order.

The action was by Alice Douglas against Joseph L. Haberstro, as sheriff of the county of Erie.

The trial was concluded December 17, 1880, before Justice Babkee and a jury. The following is an extract from the stenographer’s minutes :

The court said to the jury : “ You are directed by

the court to render a verdict of $1860.20 in favor of the plaintiff. I think those exceptions ought to be heard at general term in first instance.”

Mr. Moot (defendant’s attorney):

“Your honor will note an exception to your ruling, and your honor will give us sixty days’ stay of proceedings.”

The entry in the clerk’s' minutes was as follows :

“ Defendant allowed sixty days to make and serve case and exceptions, with stay of proceedings in the meantime.

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“ And ordered, that exceptions be heard at general term in first instance.”

February 17, 1881, in default of defendant’s so doing, plaintiff entered a formal order, dated December 17, 1880, which read as follows : “On motion

of defendant’s attorney, said defendant is hereby allowed sixty days from date of this order, within which to make and serve case and exceptions, with a stay of proceedings in the meantime, until the expiration of said sixty days. And it is hereby ordered that the exceptions be heard at the general term in the first instance.”

On February 19, 1881, plaintiff entered judgment upon her verdict. The exceptions were argued at the general term in June, 1881, and decision thereon reserved.

Plaintiff issued execution upon her judgment July 22, 1881, and a levy was made thereunder.

This motion was made on affidavits and the record, and- was noticed July 24, 1881.

Adalbert Moot, defendant’s attorney, for motion.

John Campbell Ilubbell, for plaintiff, opposed :

Cited Code Civ. Pro. § 1000 ; Beattie v. Niagara Savings Bank, 41 How. Pr. 137 ; Cole v. Webster, 17 Hun, 507 .

The defendant’s motion is granted without costs, and the order entered by the clerk is to bo amended, so that it will in terms provide for a stay until decision of exceptions at general term.

There can be no fair doubt but that the defendant’s attorneys understood that the effect of the order was to stay all proceedings upon the verdict until the exceptions were heard and decided.

It was intended by the court that judgment be suspended, and I am unwilling that such intention be

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frustrated by an erroneous entry of the order by the clerk.

Mr. Hubbell should not have entered a formal order. • in the form which he did, reciting that it was done on the motion of the defendant’s attorneys. That act was an interference, and the terms of the order are not in strict conformity to the entry in the clerk’s minutes. But Mr. Moot seemed to have acquiesced in the act done by Mr. Hubbell in his name, which mitigates this feature of irregularity.

I am inclined to the opinion that an order sending the exceptions to the general term, there to be heard in the first instance, does not suspend the entry of judgment unless the order, as entered, also provides for the suspension of judgment, upon the verdict. Section 1000 (Code Civ. Pro.) is in the article entitled ‘‘ Exceptions ; case ; and motion for a new trial.” The motion to be made in the general term is for a new trial on the exceptions, and all that the court has power to do is to grant or refuse the motion.

If the opposing affidavits had contained facts showing that the judgment could not be collected if the motion for a new trial be denied, I should have sought to make an order retaining the lien now secured by the entry of judgment; but it would be contrary to the express understanding on the trial to allow this verdict to be collected before the decision at general term.

It was the very object and purpose of the order to have the law of the case settled before further proceedings on the verdict were had.

Cases cited

Beattie v. Niagara Savings Bank 41 How. Pr. 137 N.Y. Sup. Ct. p. 7