Majority
p. 403SUPREME COURT. Theodore Van Kleeck agt. Henry A. Nichols. Ulster Special Term, July, 1882.
Headnote
Stay of proceedings—not void under rule 37, though granted within nine days of a circuit at which the cause is noticed for trial, and l>y a judge other than the one who is to hold the -circuit.Rule 37, though a wise rule which a judge could properly respect, is inconsistent with the statute respecting the granting of stay of proceedings.
A judge of the supreme court has power by law to stay proceedings in an action, and no rule can prevent the operation of his order.
There is no power in the court or another judge, without notice, to vacate such order. A vacation without notice can only be granted by the judge who made the order.
p. 404
This case was at issue and noticed for trial by the plaintiff for the Dutchess circuit, to be held at Poughkeepsie, Juñe 12, 1882.
Nine days before the circuit the defendant’s attorney served motion papers that the plaintiff render a more definite bill of items, to be heard on the twentieth of June, at the special term in Hudson.
At the same time the defendant’s attorney procured from justice Osbobh, at his chambers in Catskill, an order staying proceedings until the hearing and decision of said motion, which was served with the motion papers.
No action was taken by the plaintiff’s attorney in relation to- this stay. He did not return it, nor did he apply to the judge granting it to vacate or- modify it, but on the second day of the circuit obtained from justice Dykmah an order vacating the stay granted by justice Osbobn, and took an inquest for over $2,000.
This motion is now before the judge to open the inquest and restore the cause to the calendar, on the ground that the default was taken in violation of the stay of proceedings.
The motion was resisted on the ground that the defendant^ stay was void under rule 37 of the supreme court practice, and that the plaintiff had a right to disregard it.
James B. Ol/ney, for defendant.
W. J. Thorne, for plaintiff.
The general rules of practice cannot be inconsistent with the Code (Sec. 17).
A judge of the supreme court has.power to stay proceedings in an action.
Rule 37, though a wise rule, which a judge could properly respect, is inconsistent with the statute.
A judge has power by law to stay proceedings in. an action, and no rule can prevent the operation of his order (People ex rel. Mayor of New York agt. Nichols, 79 N. Y., 582 ).
p. 405
There was no power in this court or another judge, without notice, to vacate the order. A vacation without notice can only he granted by the judge who made the order.
It follows that the trial and inquest were irregular, and the verdict and judgment must be set aside.
Ho costs can be allowed to the plaintiff, because he is irregular, nor to the defendant, because the rule was proper to be observed.