National Bank v. Goodwin

Headnote

Order — made in one district staying proceedings in an action in another — effect of— when not vacated.

Appeal from an order made at the Special Term, vacating an order staying proceedings in this action. On December 11, 1874, an order was made in an action pending in the first district, which was brought to settle the affairs of the firm of which the defendants were the survivors, staying all proceedings in this action, which was brought in the fourth district, to secure the payment of an indebtedness due from the said firm to the plaintiff. On the sixteenth of November an order was made in this action, vacating and setting aside the order of December eleventh.

The General Term held, that as the papers upon which the order was granted in the action pending in the first district, staying plaintiff’s proceedings in this action pending in the fourth district, were not before it, it was not in a situation to say that such order was improperly granted. If it was improperly granted, it was either void or voidable. If void, the plaintiff was not bound by it, and could disregard it. If irregular, and therefore voidable, the plaintiff had two remedies.

First. To apply, under the authority granted in the order, for its correction or amendment; or,

Second! To appeal from the order, to the General Term of the first district.

But in no event would it be proper for the plaintiff to move in the fourth district, to set aside an order, granted on a full hearing in the first district, in an action there pending, even though the

obnoxious order affected, plaintiff’s conduct of his action in the fourth district.

Such practice would lead to great confusion and conflict, and would be mischievous in its effects. That undoubtedly the court in the first district would correct any error into which it might have fallen, if any such existed, upon a proper application there made.