Hyperlawhypertext legal database Auditorium Co. v. Sam S. Shubert Booking Agency 148 N.Y.S. 769

← Cases

Auditorium Co. v. Sam S. Shubert Booking Agency

148 N.Y.S. 769 Court N.Y. Sup. Ct. Decision date 1914-07-28 English

Delivered by GIEGERICH, J.

Contents

Majority

p. 769
AUDITORIUM CO. v. SAM S. SHUBERT BOOKING AGENCY.
(Supreme Court, Special Term, New York County.
July 28, 1914.)

Headnote

Judgment (§ 852[1] )—Stay of Proceedings.
Under Code Civ. Proc. § 775, providing that an order to stay proceedings for more than 20 days shall not be made by a judge out of court except to stay proceedings upon an order or judgment appealed from, the court, where no appeal had been taken and there was therefore no “judgment appealed from,” had no power ex parte to grant a stay for longer than 20 days, and the stay would be reduced to that period.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. § 1564; Dec. Dig. § 852.*]
Action by the Auditorium Company against the Sam S. Shubert Booking Agency. Motion by plaintiff to vacate an order granted ex parte and without security, staying all proceedings on the part of the plaintiff of the execution of the judgment until 30 days after service of the said judgment with notice of entry thereof. Modified.
See, also, 148 N. Y. Supp. 1104 .
Louis Sturcke, of New York City, for the motion.
William Klein, of New York City, for opposed.

The papers before the judge who granted the ex parte order showed that an appeal was to be taken to the Court of Appeals. The only authority for granting a stay in such a case is found in section 775 of the Code. Section 1351 relates only to appeals to the Appellate Division. Under section 775 the judge to whom the application was made had power to grant a stay for 20 days, but as no appeal had yet been taken and there was therefore no “judgment appealed from,” in the language of section 775 he had no power to grant a longer stay.

The order must be modified so as to reduce the stay to one of 20 days.