Bagley v. G. & E. M. Smith — 4 N.Y. Super. Ct. 651

Majority

p. 651

Bagley v. G. and E. M. Smith.

Headnote

A notice of the entry of the judgment, given to-foreclose an appeal, is a proceeding in the cause, within the meaning of an order staying proceedings on the judgment; and will be set aside as irregular.

June 20, 1849.

After a trial in this cause and a verdict for the plaintiff, the defendants on the 26th of April last, obtained and served a judge’s order staying the proceedings, and granting them thirty days in which to prepare a case or bill of exceptions. On the 14th of

p. 652

May, the order wag modified by the judge, so as to allow the plaintiff to'perfect his judgment, “and all other proceedings on the judgment to be stayed.” On the 18th of May, the plaintiff served on the defendants’ attorney, a notice of the entry of the judgment. On the 23d of June, the defendants filed and served a notice of appeal, and gave the requisite security.

The plaintiff now moves to dismiss the appeal; and the defendant moved for an enlargement of the time, or an amendment of the notice, or that the orders to stay, &c. bo deemed notices of appeal, or for relief in some other mode, if irregular.

D. P. Hall, F. B. Cutting, and D. Lord, for the defendants.

J. Slosson, and E. Sandford, for the plaintiff.

after advising with Oakley, Ch. J., and Vanderpoel, J., held the appeal to have been made in time. The notice of the entry of the judgment was a proceeding in the cause, which was prohibited by the stay of proceedings, and was set aside as irregular, on the defendants stipulating to give to the plaintiff ten days in which to except to the defendants sureties on the appeal. Leave given to the plaintiff to serve a new notice of the entry of the judgment, and his motion to dismiss the appeal denied. No costs to either party.