Hicks v. Smith
New York Supreme Court
Appeal from an order made at special term denying a motion to set aside a judgment for irregularity. This action was brought by William T. Hicks and Franklin Whiting against Abel Smith and Francis Mather. Pending an appeal taken by the defendants from an .order of the special term, the plaintiffs entered judgment. The defendants then moved to set aside the judgment as irregular; contending that their appeal was per se a stay of plaintiff’s proceedings.
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Appeal from an order made at special term denying a motion to set aside a judgment for irregularity. This action was brought by William T. Hicks and Franklin Whiting against Abel Smith and Francis Mather. Pending an appeal taken by the defendants from an .order of the special term, the plaintiffs entered judgment. The defendants then moved to set aside the judgment as irregular; contending that their appeal was per se a stay of plaintiff’s proceedings. The motion being denied, they now appealed to the general term.
1Opinion of the Court
By the Court*—Birdseye, J.
—The only question presented by the appeal in this case is, whether an appeal to the general term, taken under section 349 of the Code, from an order made at special term, is, per se, a stay of proceedings on the order appealed from.
That the appeal operates as a stay has been held in the seventh district, both at special term (Emerson v. Burney, 6 How. Pr. R., 36; Trustees of Penn Yan v. Forbes, 8 Ib., 285; Cook v. Pomeroy, 10 Ib., 103) and at general term (see 8 Ib., 287), and *286in the fourth district at special term (Stewart v. The Saratoga & Whitehall Railroad…
2Cases cited1 opinion
- Bacon v. ReadingThe Superior Court of New York City · 1852
3Cited by2 opinions
- Christy v. LibbyNew York Supreme Court · 1867
- Hoyt v. TerwilligerNew York Supreme Court · 1872