Hallenborg v. Greene — 84 N.Y.S. 321

Majority

p. 321

HALLENBORG v. GREENE et al.

(Supreme Court, Appellate Division, First Department.

November 6, 1903.)

Headnote

1. Trial—Continuance—Discretion op Court.

The exercise of the court’s discretion in granting a stay of a trial is subject to review.

Appeal from Special Term, New York County.

Action by Axel W. Hallenborg against William C. Greene and others. From an order granting to stay trial and to strike case from calendar, plaintiff appeals. Reversed. See 73 N. Y. Supp. 403 .

Argued before VAN BRUNT, P. J„ and HATCH, PATTERSON, O’BRIEN, and INGRAHAM, JJ.

Alfred B. Cruikshank, for appellant.

James Byrne, for respondents.

The order granting a stay of the trial of this action, and from which this appeal is taken, must be reversed, for the same reason which induced the reversal of the order requiring the plaintiff to reply to the amended answer of the defendant, the appeal from which last-named order is decided herewith. After the cause had been set down for trial, the defendant Greene and others obtained leave to serve an amended answer, and that motion was granted, with the provision that it should not delay the trial of the action. If the court below had discretion to stay the trial of this action, it was a judicial discretion, and subject to review by this court, and, under all the circumstances disclosed in the papers, it was neither just nor proper to exercise that discretion to further delay the plaintiff in the enforcement of his rights in the courts of this state in which his action had been pending for so many months, and had been diligently pressed for trial before the amended answer was served.

The order should be reversed, with $10 costs and disbursements, and the motion for a stay denied, with $10 costs.