86 N.Y.S. 958 | N.Y. App. Div. | 1904
The plaintiff has in another action recovered a judgment against the defendant Henrietta L. Baker, individually, for the sum of $758.34 and costs, from which judgment she has appealed to this court; but the case on appeal had not been settled at the time of the granting of the order herein appealed from. In this action the plaintiff seeks to recover from the defendants Horace S. Jenkins and the said Henrietta L. Baker, as executors of the last will and testament of Emeline Jenkins, deceased, the amount of an alleged account heretofore held in trust by the deceased for the plaintiff in a savings bank, less the sums which may be received by the plaintiff under that judgment. A stay of the proceedings of the plaintiff in this action has been granted until the decision by this court of the appeal from the judgment.
The moving papers disclose no ground for the granting of the stay, and the learned counsel for the appellant cites no authority in support of it. It is alleged that the granting of the order is within the discretion of the Special Term, and that it is, therefore, not appealable. The cases cited have-no application to the jurisdiction of this court where the discretion exercised by the Special Term is not only a proper subject of review, but where the disposition of an appeal from the Supreme Court may lawfully be governed by the exercise of an independent discretion -on the review. The alleged
The order should be reversed and the motion denied. \
- All concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.