President, Directors & Co. of the Bank of Genesee v. Spencer

15 How. Pr. 14 | N.Y. Sup. Ct. | 1857

By the court—Johnson, Justice.

A judge at chambers cannot make an absolute indefinite and continuing order, either to set aside or to stay proceedings. At most, he has only power to stay the proceedings for a time, as until the next term or until a rule nisi, has been applied for, so as to afford a party an opportunity of applying to the court to set them aside, or stay them generally. (3 Chit. Gen. Prac. 26; Tidd, 511.) We do not understand that the Code of Procedure has enlarged the powers of judges, at chambers, except in cases specially provided for. The general distinction between term and chamber duties is still retained in our practice. And whether these supplementary proceedings are proceedings in the original action, or are special proceedings, founded upon the judgment and return of the execution unsatisfied, it is quite obvious that a general stay by another judge, at chambers, must fall within the general rule. The judge before whom the proceedings had been instituted, and were then pending, had sole and exclusive jurisdiction over them, until they were finally disposed of; and it must be apparent, we think, that no other judge or officer, at chambers, could have any power to come in and stay such proceedings by a general order, upon terms. The order in question suspended the proceedings entirely, on terms, until an appeal from an order, in a distinct and separate proceeding, should be disposed of by the court of appeals. This, we think, is a power which a court alone could exercise. It belongs to the duties of a judge sitting as a court, and not at chambers.

He might, we think, at chambers, have granted a stay, until an application could be made to the court, for such an order as he undertook to make, but this would be the extent of his power. To get rid of an order improperly made by a judge at chambers, the proper practice is, to move the court to set it aside. The special term erred, .we think,.in refusing to set aside the order in this case. The order of the special term must therefore be reversed, and an order entered, vacating the chamber order," with ten dollars costs of appeal.