St. Lawrence Wholesale Grocery Co. v. Hobson — 19 N.Y.S. 418

Majority

p. 418

St. Lawrence Wholesale Grocery Co. v. Hobson.

(Supreme Court, General Term, Third Department.

May 5, 1892.)

Headnote

Appeal—Postponing Argument—Power op Judge at Chambers;

A justice of the supreme court at chambers has no power to stay the argument of an appeal pending in the general term, and a stay so granted will be disregarded by the general term.

Action by the St. Lawrence Wholesale Grocery Company against Howard H. Hobson. After an appeal had been taken by plaintiff from a judgment in favor of defendant, an order was made by Mr. Justice Bussell, at chambers, directing a stay of the argument of the appeal, and postponing the same until the next general term. Defendant (respondent) moves to vacate the order.

Motion granted.

The stipulation of counsel and order of the justice at chambers are as follows:

“It is hereby stipulated and agreed by and between the attorneys in this action that the affidavits used by the plaintiff on the motion to vacate the order of arrest herein may be printed and used on the appeal to the general term from the order made herein by Hon. Justice Kellogg, and dated Mch. 8th, 1892. And it is further stipulated that the argument on this appeal go over to the next general term to be held at Saratoga, N. Y., in September, 1892.

“G. S. Dorwin, Atty. for Plaintiff and Appellant.

“McClary & Paddock, Attys. for Defendant & Bespondent. ”

“On reading and filing the affidavit of G. S. Dorwin, and after hearing G. S. Dorwin for plaintiff, and upon reading and filing all the papers upon which a motion is noticed to be heard before the Hon. S. A. Kellogg at Piattsburg, N. Y., on the 10th day of May, 1892, to resettle an order made by Justice Kellogg, March-8, 1892, changing the place of trial in the above-entitled action from St. Lawrence toEranklin county, it is ordered that the argument in the general term of the fourth judicial district upon the appeal in the above-entitled action from an order granted by Hon. S. A. Kellogg, March 8,

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1892, is hereby stayed, and that said argument be, and the same is hereby, puf over until the next term of the general term of the fourth judicial department, appointed to be held at Saratoga on the second Tuesday of September, 1892. And it is further ordered that the service hereof may be made upon McClary and Paddock, Attys. for the defendant herein, and upon the clerk of the general term of the supreme court of the third department, at Albany, FT. Y,, by •depositing a copy thereof in a securely-closed, prepaid wrapper, directed to McClary and Paddock at Malone, FT. Y„ and to the said clerk of the said court at Albany, FT. Y., and deposited in the post office at Canton, FT. Y., this May 2d, 1892. And it is further ordered that the service of the papers in the said motion before said Justice Kellogg on May 10th, 1892, may be made by depositing a copy thereof in the post office at Canton, FT. Y., on this day, in a securely-inclosed, prepaid wrapper, directed to McClary and Paddock, Malone, FT. Y. Leslie W. Russell, J. S. C. ”

Argued before Mayham, P. J., and Putnam and Herrick, JJ.

é?. S. Dorwin, for appellant. McClary & Paddock, for respondent.

An appeal has been taken in the above-entitled action to this court. Such appeal is regularly upon the calendar, and noticed for argument at this time. An application has been made to a special term at chambers, and an order granted staying the argument upon appeal, and putting the same over until the next term of this court; a copy of the order served upon the clerk of this court, and upon the attorneys for the adverse party. Such practice cannot be tolerated. Attorneys practicing in this court, and having cases upon its calendar, if they desire to stay proceedings therein, or to defer arguments thereon, or to have the same put over the term, must apply to the general term, and not to single justices of the court. It is necessary for the orderly transaction of. its business that the court should retain exclusive control of its own calendar, and it cannot tolerate any interference therewith, and attorneys must not apply elsewhere for any relief desired by them as to the disposition of any case pending therein upon appeal; and when, by inadvertence or oversight, any judge has granted an order interfering with the argument or disposition of a case on the calendar of this court, such order will be disregarded. The special term order herein referred to is hereby vacated and set aside, and the case will be disposed of when reached in its regular order upon the calendar.