Roberts v. White — 37 N.Y. Super. Ct. 168

Majority

p. 168

WIS ROBERTS, Plaintiff and Respondent, v. HENRY WHITE, et al., Defendants and Appellants.

Headnote

In September, 1864, the plaintiff made a stipulation in this action-to file additional security to the amount of five thousand dollars, on

p. 169

his appeal from an order entered September 19,1864. Said security to be filed and served before the argument on appeal. The stipulation was not fulfilled and defendants made no motion nor took any action to enforce it until 1871.

Held, that because of the lapse of time the court has no power to make an order now (Dec. 1873), that the plaintiff shall carry out his stipulation. s

Before Freedman, Curtis, and Speir, JJ.

Decided February 28, 1874.

Apppeal from an order at special term.

William B. Martin and Ojiarles Tracy, for plaintiff and respondent.

George A. Black, for defendants and appellants.

This is an appeal by the defendants from an order made at special term, denying a motion to compel the plaintiff to file additional security, in pursuance of a stipulation given by plaintiff’s attorney.

This stipulation was made before the argument of appeal was heard, on October 8, 1864, and which seems to have been the occasion for, if not the reason of giving it. It is uncertain whether the stipulation refers to the making and filing a new undertaking, or to the responsibility of the sureties whose names on the old one, then already executed, approved, and filed. It was by its terms to be performed before the argument of the appeal, and it was, I think, in the power of the defendants to enforce it,, both before and in a reasonable time after the argument.

This the defendants neglected to do. The appeal was heard and decided. It is quite likely that before the court could have acted on the motion, had it been

p. 170

made in time, an inquiry into the surrounding circumstances would have been necessary to determine precisely what relief the defendants were entitled to. This consideration gives great force to the decision of the court below, that because of the lapse of time the court cannot make an order that the plaintiff carry out his stipulation. There'does not appear to be any valid excuse of a delay of seven years before invoking the aid of the court to carry into effect a stipulation so indefinite in its terms, and which was in the power of the defendant to enforce at the time it was given.

The order below must be affirmed.

Freedman and Curtis, JJ., concurred.