Majority
p. [465]ELIZABETH H. EASTMAN, Appellant, v. DANIEL E. STARR, Respondent, Impleaded, &c.
Headnote
Stay of proceedings, after entry of judgment — when it cannot be granted without security being given — Code of .Civil'Procedure, §§ 613, 618 — a stay will not be granted because the defendant'is applying, in another court, for a discharge under the Two- Third Act. ■During, the pendency of this action and prior to the recovery of a judgment herein, the defendant' procured from the ’ Court of Common Pleas of the , City of New York an order directing him to make an assignment of all his property, and discharging him from his debts, under the “ Two-Third Act.” Thereafter,this order was, upon the plaintiff’s application, vacated dud the discharge canceled on the ground that it was fraudulently and irregularly procured. Prom this last order the defendant appealed to the General Term of. the Common Pleas, and procured a stay of all proceedings in the Court of Common Pleas during the pendency of such appeal.
Thereafter the plaintiff having recovered a judgment in this action and instituted proceedings to procure the appointment of a receiver, the defendant obtained an order staying all proceedings in this action pending the stay granted by the Common Pleas.
Upon an appeal from that order, Held, that the stay of proeedings was in effect an injunction staying proceedings upon a judgment for a sum of money, within sections 613 and 618 of the Code of Civil Procedure, and could only be granted upon the payment of the amount thereof into court, or upon security therefor being given as therein provided.
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That in the absence of any averment of fraud or error, it would be subversive of right and contrary to precedent to stay the enforcement of a valid and regular judgment, without statutory authority, merely because another court might hereafter decide that the defendant was entitled to be discharged from his debts.
That the order should be reversed.
Appeal from an order made at a Special Term, staying all proceedings on a judgment recovered by the plaintiff, pending a stay granted by tbe General Term of tbe Common Pleas, in a certain proceeding instituted in that court by the defendant to obtain bis-discharge as an insolvent debtor under tbe Two-Third Act.
This action was commenced in January, 1879, to recover the. sum of $15,000, due upon a bond executed by tbe defendant Starr and one Biker. • In August, 1879, the defendant Starr applied to* tbe Court of Common Pleas of the City of New York to be discharged from bis debts, and thereafter, and in October, 1879, procured an order directing him to make an assignment of all his property, and discharging him from bis debts. Tbe plaintiff thereafter procured an order vacating the orders obtained by tbe defendant,, and canceling and setting aside tbe discharges, on the ground that they bad been fraudulently and irregularly procured. Prom this order tbe defendant appealed to tbe General Term of tbe Common Pleas, and procured an order staying all proceedings in that court during tbe pendency thereof.
The plaintiff having recovered a judgment herein in March, 1880,, upon which an execution bad been returned unsatisfied, moved for tbe appointment of a receiver, with a view of reaching certain property owned by;,the- defendant. Thereupon the defendant moved for and obtained an order staying all proceedings herein, on thes part of tbe plaintiff, pending tbe stay granted by tbe Court of Common Pleas.
George S.'Hastings, for tbe appellant,
Orlando L. Stewa/rt, for tbe respondent.
We think the stay should not have been granted, Tbe plaintiff lias a perfectly valid judgment against the defendant which be
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seeks to enforce. That is a right expressly guaranteed to him by law. The Code of Civil Procedure (§§ 613, 618), following the Revised Statutes, forbids an injunction staying proceedings upon a judgment for a sum of money unless the amount of the judgment be paid into court or security therefor be given. The present order staying proceedings was the equivalent of such an injunction. The form was of no consequence. Further, upon the facts presen, ed there was no basis for the stay. The defendant had no defense to the action which resulted in the judgment, none to the judgment itself. All that he claims is a hope that his proceedings, under the Two-Thirds Act, in the Court of Common Pleas may ultimately result in an effective discharge. The fact that that court, pending the hearing therein, has granted a stay of the creditor’s proceeding m that matter, cannot avail the defendant here. There is no intei’dependence as to the proceedings before the officer in the Court of Common Pleas and upon the judgment of this court. There being no averment of fraud or error it would be subversive of right and contrary to precedent to stay the enforcement of a regular and valid judgment, without statutory authority, merely be-' cause another court may hereafter decide that the defendant is en-' titled to a discharge.
The order appealed from should be reversed, with $10 costs, and disbursements, and the stay vacated.
Present — Davis, P. J., Brady and Barrett, JJ.
Order reversed, with $10 costs, and disbursements.