Epstein v. Sussman — 134 N.Y.S. 20

Majority

p. 20

EPSTEIN v. SUSSMAN et al.

(Supreme Court, Appellate Division, Second Department.

March 21,1912.)

Headnote

Appeal and Ebbob (§ 1102*>—Orders—Reversal.

An ex parte order, obtained by one not a party to the suit, "will be vacated, where the papers on appeal disclose no grounds for granting it, or for refusing to vacate it, and the party at whose instance it was granted does not appear on the hearing of the appeal or present'a brief.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 4382; Dec. Dig. § 1102.*] , .

Appeal from Special Term, Kings County.

Action by Samuel Epstein against Hyman Sussman and others. From an order denying a motion to vacate an order, granted on motion of Edward Gribbon & Sons, Limited, staying proceedings towards obtaining a personal judgment against defendant Abraham Epstein, plaintiff áppeals. Reversed, and1 motion to vacate order granted.

Argued before JENICS, P. J., and HIRSCHBERG, THOMAS, CARR, and RICH, JJ.

Samuel Leavitt, for appellant.

This action appears to be brought for the foreclosure of a mortgage on certain real estate, and the complaint seeks to obtain a deficiency judgment against certain defendants, including the defendant Abraham Epstein. The said defendant is now bankrupt, and the respondent Edward Gribbon & Sons, Limited, a creditor of said bankrupt and not a party to the action, obtained from the Special Term.in Kings county an ex parte order in said action, restraining, and staying all proceedings in the action “directed toward obtaining a personal judgment against Abraham Epstein.” The plaintiff moved at Special Term for an order vacating and setting aside such ex parte order, which motion was made on notice to the creditor, Edward Gribbon & Sons, Limited, and after a hearing the motion was denied.

As no grounds are disclosed in the papers on appeal for the granting of the ex parte order, or for the refusal to vacate ait, and as the sole respondent, the creditor at whose instance the stay was granted, has not appeared on the hearing of the appeal or presented a brief, it would seem proper that the order be reversed, with $10 costs and disbursements, and the motion to vacate the ex parte order granting the stay be granted, with costs.