Gilroy v. Everson-Hicock Co.

Clarke, J.:

On or about .the 20th day of October, 1902, the. plaintiff, as receiver supplementary to execution of the property of the Columbia Publishing Company, commenced, this action in replevin to.recover certain chattels, consisting of presses aiid other materials, of a printing establishment, claimed to be the property of the said Columbia Printing Company. ' •

The United States Fidelity and Guaranty Company, upon the application, of the plaintiff, executed and delivered an undertaking in replevin in. the sum'of $11,000'to indemnify the sheriff, of the county oí ¡New York against all loss and damage which might result from the seizure of' the property.. Said property was thereafter .sold at public auction.

This.action was tried and the complaint dismissed upon the ground that an-action in replevin would not lie on behalf of the receiver, and a judgment was entered on December 7, 1904, in favor of the defendant in the sum of $6,349.06. Upon appeal to this court'in 103 Appellate Division, 574, the dismissal of the complaint was-held proper, but a new trial was ordéred ’ because of error in the ascertainment of the value of the property, which was the basis of the affirmative judgment.' The case was again tried and-' judgment rendered on October 13, 1906, for the defendants for the sum of $7,496.14. Upon appeal to this court a decision was handed down on April 5, 1907 (118 App. Div. 733 ; 103 N. Y. Supp. 620), reversing the judgment and granting a new trial, unless the defendants' stipulated to reduce the judgment to $3,300 and interest .thereon from the'time of the seizure of the property and costs, and' judg-. ment was entered thereon to the amount of $4,402.33 to the Hickok Printing Company and $316.50 to the Everson-Hickolc Company on the 16th day. of April, 1907.' . ■ . •

After the entry of the judgment below on the 13th day of Octo-' ber, 1906, the Hickok Printing Company brought an action in the Supreme Court, ¡New York" county, against the United States' Fidelity and'Guaranty Company to recover the amount of • the judgment upon the undertaking given by it, in which action judg-; ment was entered by default on the 12th day of ¡March, 1907, in favor of the plaintiff against the said defendant United ■ States Fidelity and Guaranty Company for $7,377.05. ¡No appeal has been taken from said judgment-, and as it was taken by default, it is not apparent that an appeal could be taken therefrom, nor lias the default been opened or the judgment vacated or set aside. Upon said judgment an execution has been issued to the sheriff against the ¡property of the said defendant, the United States Fidelity and Guaranty Company.

The order here appealed from provides as follows: “ That the-defendants be and they hereby are stayed from any further proceedings herein, except proceedings upon the prosecution of the appeal herein to the Court of Appeals of the State of New York, and that the defendant Hickok Printing Company be stayed from any further proceedings in the action brought by said defendants against the United States Fidelity and Guaranty Company in the Supreme Court, New York County, upon the undertaking given herein dated September 12, 1902, and that Nicholas J. Hayes, the Sheriff of the County of New York, be restrained from making any levy or taking any proceedings upon the execution issued on the judgment entered in said action in which the defendant Hickok Printing Company is plaintiff and the United States Fidelity and Guaranty Company is defendant until the detennination of the appeal taken to the Court of Appeals of the State of New York by the plaintiff herein from the judgment upon the order of the Appellate Division filed in the office of the Clerk of New York County on the 16th day of April, 1907, modifying and affirming as modified the judgment entered herein on the 13th day of October, 1906, * * * provided that the plaintiff shall duly give a written undertaking in due form • conditioned that if the judgment appealed from, or any part thereof, is affirmed or the appeal is dismissed, he will pay the sum recovered or directed to be paid by the judgment or the part thereof as to which it is affirmed.”

The appellant claims that this order is erroneous, first because an Order made in this action undertakes to stay the issuance of an execution upon a judgment entered in another action. The claim' is well founded. It appears from the papers that a motion was made in,said action wherein the Hickok Printing Company was plaintiff and-the ti nited States Fidelity and Guaranty Company was defendant for a stay and that, said motion was denied, the learned court stating that it knew of no provision of law that would warrant the court in granting the relief sought for in the moving papers. As in said action there was a filial judgment in full force and effect and not appealed from, that decision appears to have been correct. Thereafter the motion w,as made in the case at bar. and the order appealed from granted.

Hr. Justice O’Breeu, speaking for this court, in Belasco Company v. Klaw (98 App. Div. 74), said: “The inherent power of the court to stay proceedings or control the trial of an action is one wliichmust be exercised in the action itself, ánd-where it is sought to enjoin parties from proceeding in,another action such relief must' be by injunction in an action where by formal prayer it is demanded. ETeither under the provisions of the Code of Civil Procedure nor by sanction of any authority to which our attention has been called is the practice permitted to apply in an action brought for an entirely different purpose to stay the trial of another action. * * * The proper' practice was followed when the application for a stay was made in the action of Brooks v. Belasco, and though it was denied, we now have the anomaly of an.-application for what is termed a stay of such action (Brooks v. Belasco) made in the present action and granted.” ' .

In the case at bar we have a more startling anomaly.' In Hickok Printing Co. v. United States Fidelity & Guaranty Co. an application was made for' a stay of execution in that case and was denied upon the ground that after judgment a stay of execution thereon is incident to an appeal therefrom,, and that as no appeal had been taken no stay could issue, and here we'have a stay of the execution issued in'this action upon a judgment in another action which is in .effect an injunction rendered .in an action not brought for an' injunction. .

.' We know of no authority for such a proceeding and so much of the order appealed from as grants the stay of execution in Hickok Printing Co. v. United States Fidelity & Guaranty Co. should be reversed.

Second. The appellant claims that the order staying the issue of an execution in the ease at bar was improper, because it was made contingent upon the filing in the case at bar of an undertaking as provided for by section 1327 of the Code of Civil Procedure, which section applies only to appeals from judgments for the payment of money, whereas it should have been issued under the provisions of section 1329 of the Code of Civil. Procedure, providing that in an action for replevin in order to secure a stay the appellant must give a written undertaking in the sum fixed by the court below or a judge thereof, to the effect that the appellant will obey the direction of the appellate court upon the appeal. This contention seems to be without substance, for it appears that the chattels have long since been sold at public auction and, therefore, cannot he restored and the judgment is a money judgment.

As to whether or not the appeal to the Court of Appeals herein has been perfected, there is an assertion upon the one side that it has and upon the other that it has not, without such facts as enable this court to determine whether the appeal is pending, nor is it of a,ny moment that we should, because if a proper. appeal has not been taken the remedy lies elsewhere.

It follows, therefore, that the order appealed from should be modified by striking out so much thereof as provides for a stay of execution in the case of Hickok Printing Co. v. United States Fidelity & Guaranty Co., ánd as so modified affirmed, without costs to either party.

•Ingraham, McLaughlin, Laüghlin and Scott, JJ., concurred.

Order modified as directed in opinion, and as modified affirmed, without costs.