47 N.Y.S. 689 | N.Y. App. Div. | 1897
The basis of attack made upon the order appealed from consists in the claim that the Supreme Court is without power to stay proceedings upon an order made in a Surrogate’s Court, which has been affirmed upon appeal and remitted to such court for its action. We are of opinion that this claim cannot be upheld. When the appeal was taken from the order of the surrogate to the Appellate Division of the Supreme Court, a stay of the execution of the' order was effected by giving the security provided by section 2579 of the Code of Civil Procedure. The only provision of law for the giving of an undertaking to perfect an appeal to the Court of Appeals from such an order is that provided by section 1326 of the Code of Civil Procedure requiring security for costs, etc. Such security was not given when the motion for a stay was made, but the court, in the order staying proceedings, requires such seen
It is quite evident, therefore, that the appellant in the order had complied with all the provisions of law necessary to perfect his appeal, except the giving of the undertaking for security for costs. When this was done, it, together with the appeal, operated as a stay of proceedings upon the decree appealed from until disposition was made by the Court of Appeals of such appeal. ¡No order Was, therefore, necessary, except for leave to file the security, to stay proceedings
. Methods of procedure in the Supreme Court are the subject of l'egis*lative control. Limitation upon its jurisdiction is beyond legislative power; it is accomplished only by constitutional provision. Where the Legislature has failed to act in prescribing methods of procedure, parties are relegated to the former practice of the courts, and may invoke any power possessed by the court to assert or protect a right or redress a wrong. In respect of stay of proceedings, the Supreme Court has always had jurisdiction, and exercised it at common law. Indeed, .the old writ of error operated as a stay of proceedings when allowed. (People ex rel. Clarke v. The Commissioners of Highways of Deerfield, 22 Wend. 587.) It was the operation of this writ in staying proceedings that produced .statutes requiring security to be given and thus protecting a party in securing the fruits of his judgment. The first statute makes complaint upon the subject in these words : “ For as much as his highness’ subjects are now more commonly withholden from their just debts, and often in danger to lose the same, by means of writs of error, which are more commonly sued than heretofore they have been. Be it, therefore, enacted * * * that from and after the end of this present session of Parliament, no execution shall ■ be stayed or delayed upon, or by any writ of error or supersedeas thereupon to be sued * * * .in any action or bill of debt,” unless bail be . given. (3 Jac. 1, cap. 8.) In this country the writ of error was a writ of right, and issued without allowance by the judge. But bail seems tó have been required in all cases. (Van Antwerp v. Newman, 4
The Judiciary Act of 1847 (Laws of 1847, chap. 280, § 17) authorized the Supreme Court to grant a stay in all cases where an appeal was - permitted. The earlier statutes have been repealed, writs of error abolished, and the subject-matter regulating procedure, for the most part, has been embodied in the Code of Civil Procedure. But neither in the Constitution nor in the statutes, whether in the Code or elsewhere, so far as we are able to find, has the authority of the Supreme Court to grant a stay of proceedings, upon-appeal, in a case where there is no provision of law regulating it, been taken away, abridged or in any wise limited. The- power exists and may be exercised as it always has been. The case of Deyo v. Morss (38 N. Y. St. Repr. 477) is "in no sense in conflict with this view. In that case the proceeding was in progress in the Surrogate’s Court, from which no appeal had been taken and which still remained undetermined by the surrogate. Even there the authority of the Supreme Court was recognized. The only question determined related to the manner of its exercise. . It was held that an order staying proceedings was improper, but that relief might be obtained by injunction. In like manner the decisions of the Court of Appeals, holding that jurisdiction is lost by a return of the remittitur, are without application for the reason that it is possessed only of the jurisdiction in this respect which the record confers. As we have seen, the jurisdiction of the Supreme Court is original and embraces the subject-matter. In the present ease it became necessary for the appellant to obtain the order, as he had omitted to file security for costs, and consequently there was no stay until the court provided for the.omission, giving leave to file the security. When this was done the stay was complete without further order.
The order should be affirmed, with ten dollars costs and disbursements.
All concurred, except Bartlett, J., who concurred in the result.
Order affirmed, with ten dollars costs and disbursements.