Vogel v. Vogel — 131 N.Y.S. 577

Majority

p. 577

VOGEL v. VOGEL.

(Supreme Court, Appellate Term.

October 16, 1911.)

Headnote

Appeal and Error (§ 436*)—Stay oe Proceedings—Power of Tp.ial Court. The trial court, in granting defendant a stay pending an appeal from an order overruling his demurrer, cannot grant him time to plead after the determination by the appellate court.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 436.^[1] ]

p. 578

Appeal from City Court of New York, Special Term.

Action by Lillian B. Vogel against Mark Vogel. From an order granting defendant a stay pending an appeal, plaintiff appeals. Order modified and affirmed.

Argued before SEABURY, GUY, and COHALAN, JJ.

Cass & Apfel, for appellant.

Hartman & Levy (Hugo Levy, of counsel), for respondent.

The order appealed from granted defendant a stay, pending an appeal to this court from an order overruling a demurrer and granting defendant time to plead. The order also granted defendant six days’ time to plead after entry of the order of this court upon appeal. This last provision the court could not grant. The stay was properly granted, but the order must be modified.

Order modified, by striking therefrom the provision granting defendant six days in which to plead, and, as modified, affirmed, with disbursements to the appellant. This court will provide in order No. 21 for time..