Majority
p. 181Brady v. Mayor, Etc., of the City of New York. (Superior Court of New York City, General Term. May 6, 1889.) Argued before Sedgwick, C. J., and O’Gorman, J.
Headnote
Practice in Civil Cases—Stay of Proceedings.The trial of an action may he stayed in order to obtain the benefit of the decision at general term of a similar case pending there, but a stay will not be granted until the final determination of that case.
Appeal from special term.
Action by Bernard Brady against the mayor, etc., of the city of Hew York, on a street grading contract. An order opening a judgment entered by default for plaintiff was reversed by the general term, (54 H. Y. Super. Ct. 457,) and defendant’s appeal to the court of appeals was dismissed, (14 H. E. Hep. 608, mem.) An order was then entered staying proceedings until the determination of the case of Mayor, etc., v. Brady, ante, 179, and plaintiff appeals.
L. Laflin Kellogg, for appellant. David J. Dean and Arthur R. Masten, for respondent.
Under the circumstances of the case I am of opinion that it was within the power of the court below to postpone the trial for the purpose of gaining the benefit of a decision at general term in the ease of the mayor, etc., against the present plaintiff and others. The order stayed proceedings generally, but the proceeding aimed at was the trial. I think, however, that there should not have been a stay until the final determination of the action. The order should be modified and affirmed, without costs.
O’Gorman, J„ concurs.