Majority
p. 1120SAM WERNER, Inc., v. SYROP. (City Court of New York, Special Term. March, 1910.)
Headnote
Appeal and Error (§ 458[1] )—Stay of Proceedings—Security to Pay Judgment. 0Where defendant appeals In good faith from an interlocutory judgment sustaining a demurrer to his answer, he is entitled to a stay of proceedings, on condition of his giving security to pay the judgment obtained.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 2223; Dec. Dig. § 458.[1] ]
Action by Sam Werner, Incorporated, against Henry Syrop. On motion for defendant for a stay of proceedings.
Motion granted.
May & Jacobson, for plaintiff.
Charles Tolleris, for defendant.
This is a motion why an order should not be granted staying all proceedings on behalf of the plaintiff, pending the hearing and determination of the appeal taken by the defendant to the Appellate Term of the Supreme Court from the interlocutory judgment sustaining the demurrer to the defendant’s answer.
The plaintiff contends that said defendant is not acting in good faith by taking the appeal from the interlocutory judgment entered herein, for the reason that there is no likelihood of the defendant reversing said judgment. On the demurrer to said answer a decision was handed down by one of the justices of this court as follows:
“While the separate defenses abound in allegations of wrongful violation of public and private rights by plaintiff to the damage of defendant herein, yet these are but conclusions, rather than averments of facts, and fatal to that portion of the pleading on demurrer. See Park & Sons Co. v. Nat. Druggists’ Ass’n, 175 N. Y. 1 , 67 N. E. 136 , 62 L. R. A. 632 , 96 Am. St. Rep. 578 . For the same reason the counterclaim pleaded is bad, and the demurrer therefore must be sustained, with $10 costs, with leave to plead over on payment of same. Present decision and interlocutory judgment accordingly on one day’s notice.”
p. 1121
The defendant has taken his appeal in good faith, and an opportunity should be granted him to review the decision made by one of the justices of this court; but it should be upon condition that security should be given to plaintiff to secure the payment of the judgment obtained herein.
Motion will be granted as herein indicated. Settle order on one day’s notice.
Cases cited
- John D. Park & Sons Co. v. National Wholesale Druggists' Ass'n 175 N. Y. 1 at 67 p. 1120