Majority
p. 442BELMONT against THE ERIE RAILWAY COMPANY. Supreme Court, First District ; Special Term, December, 1868.
Headnote
Appeal.—Motion.—Stay oe Proceedings.Pending a motion to vacate an order which the moving party has appealed from, it is proper to grant a stay of proceedings. An appellant moving to vacate the order from which he has appealed, is not to be required to withdraw his appeal meanwhile.
Motion for a stay of proceedings.
This action was brought by August Belmont against the Erie Railway Company, and the directors thereof, to obtain the appointment of a receiver of the corporation defendant, upon allegations of mismanagement on the part of the directors.
The order for appointment of a receiver having been granted, the defendants appealed therefrom, and also applied to another judge of the court to reopen and discharge the order.
The decision of that application is reported in 52 Barb., 637 .
Pending the motion, the appellant applied for a stay of proceedings.
It is manifestly just and proper, that pending a motion to vacate' an order, the moving party should not be compelled to prepare to argue his appeal from that order ; and the defendant ought not, as suggested by the plaintiff’s counsel, to be required to withdraw the present appeal, because in case of an adverse decision upon the motion, the defendant, if the time to appeal from the original order had then expired, might
p. 443
be remediless. Neither party can be harmed, except to the extent of the delay of one term, by the stay asked for, and which is obviously, right.
The order is therefore granted.