Renault Freres Selling Branch, Inc. v. Sewall & Alden

Majority

p. 313

RENAULT FRERES SELLING BRANCH, Inc., v. SEWALL & ALDEN.

(Supreme Court, Appellate Division, First Department.

November 29, 1912.)

Headnote

Appeal and Error ('§ 440*)—Effect of Appeal—Stay of Proceedings in Lower Court.

While a resettlement by the Appellate Division of an order from which an appeal had' been taken to the Court of Appeals would warrant an application to the higher court for a dismissal of the appeal, the Appellate Division could not restore the cause to the calendar until such appeal was dismissed or otherwise disposed of.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 2198-2201; Dec. Dig. § 440.*]

*For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes

Action by the Renault Ereres Selling Branch, Incorporated, against Sewell & Alden. From a judgment for defendant, plaintiff appealed to the Appellate Division, and from a judgment of reversal therein defendant appealed to the Court of Appeals. Motion for stay of proceedings pending appeal granted.

See, also, 137 N. Y. Supp. 1139 .

Argued before INGRAHAM, P. J., and McLAUGHLIN, CLARKE, SCOTT, and DOWLING, JJ.

Joseph M. Allen, of New York City, for the motion.

Henry Hoelljes, of New York City, opposed.

The defendant appealed from an order of this court reversing a judgment and granting a new trial. That appeal has not been disposed of by the Court of Appeals, and is still pending. The fact that this court subsequently resettled the order appealed from, while it would be the basis of an application to the Court of Appeals to dismiss the appeal, does not supersede the appeal; and we do not think the court was justified in restoring the case to the calendar until the appeal was dismissed or otherwise disposed of by the Court of Appeals.

The motion will therefore be granted.