Deyo v. Morss — 38 N.Y. St. Rep. 477

Majority

p. 477

Edmund Deyo, Resp’t, v. Foster S. Morss, Ex’r, et al., App’lts.

(Supreme Court, General Term, Third Department,

Filed May 21, 1891.)

Headnote

Stay—Injunction.

A court of record cannot by order stay proceedings pending in another court of record. Such relief must be obtained by injunction when security can be required.

Appeal from an order of the special term staying all proceedings in an accounting of an executor in the surrogate’s court of Greene county until the determination of the action or the further order of the court.

Howard Chipp, Jr., and Sidney Crowell, for app’lts; John A. Griswold, for resp’t.

This court and many other courts of record can stay proceedings by order in actions pending before them. But a court cannot by order stay proceedings in an action pending in another court of record. Belief of that general nature must be obtained, when proper, by injunction. The plaintiff cites

p. 478

us to no case to sustain his practice. 8 Pomeroy’s Equity, § 1371, speaks only of injunctions. German Savings Bk. v. Habel, 80 N. Y., 273 , was the case of an injunction. So was Rogers v. King, 8 Paige, 210.

The distinction is plain and important. An injunction cannot "be granted without security. Code, § 620. And it is most important, where legal proceedings in another court are restrained, that the court granting the injunction should carefully consider what protection by way of security should be required. Special provisions are made in many such cases. Section 611 et seq.

Stays of proceedings are granted in the free discretion of the court. But injunctions are to be granted only when authorized by §§ 603, etc.

We do not decide whether in this case an injunction restraining the authority in the surrogate’s court would or would not be proper. It is enough to say that a stay of proceedings should not be granted to control the proceeding pending in that court.

Order reversed, with ten dollars costs and printing disbursements, and motion denied, with ten dollars costs, without prejudice to any application for an injunction.

Landon, J., concurs; Mayham, J., not acting.