Christy v. Libby
New York Supreme Court
Motion for a stay of proceedings. This action was brought by Harriet E. Christy, as administratrix, against James S. Libby. The defendant demurred to the plaintiff’s complaint. The demurrer was overruled at special term, and an order entered giving the defendant twenty days in which to answer on payment of costs. The defendant appealed to the general term from the order overruling the demurrer, within the twenty days provided for in the order.
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Motion for a stay of proceedings. This action was brought by Harriet E. Christy, as administratrix, against James S. Libby. The defendant demurred to the plaintiff’s complaint. The demurrer was overruled at special term, and an order entered giving the defendant twenty days in which to answer on payment of costs. The defendant appealed to the general term from the order overruling the demurrer, within the twenty days provided for in the order. The plaintiff, after the expiration of the twenty days, gave notice of an application for judgment. The defendant now applied for an order staying the…
1Opinion of the CourtBrady, J.
The appeal in this case, on the part of the defend mt, is one from an order under the provisions of section 349 of the Code (Phipps v. Van Cott, 4 Abb. Pr., 90), and such an appeal does not operate per se as a stay of proceedings. (Hicks v. Smith, 4 Abb. Pr., 285, and cases cited; Ferry v. The *424Bank of Central New York, 9 Abb. Pr., 100; Genin v. Chadsey, 12 Abb. Pr., 69.) The order overruling a demurrer is not an exception to the rule. The case of Stewart v. The Saratoga and Whitehall Railroad Co. (12 How. Pr., 447), in which a distinction was made between such an order and others, was…
2Cases cited4 opinions
- Ferry v. Bank of Central New YorkNew York Supreme Court · 1858
- Genin v. ChadseyThe Superior Court of New York City · 1861
- Hicks v. SmithNew York Supreme Court · 1857
- Phipps v. Van CottNew York Supreme Court · 1857