The motion to vacate the order must be granted. As to the plaintiff it ivas inoperative, both for want of being served, and because it was not followed with a notice of motion. It is well settled, that in the case of an -order to stay proceedings with the view to a non-enumerated motion, this must be accompanied with a notice of the motion; otherwise it does not stay the proceedings. (3 John. 451.) If this were not so, an order like the present would, in all cases, throw the burthen of a motion upon the party against whom it is taken. There is much more reason for holding the party to his notice in this case, than in that of enumerated motions. In these, each party-is considered an actor as to the motion, and may get rid of the order in several ways; as by noticing the motion, placing it on the calendar, and bring ing it to a hearing ; (1 Caines, 484, 5; 3 id. 151, 2;) or by getting the judge to discharge it; (3 Caines, 106;) or by a]) • pealing to the court. (4 Cowen, 539.) Yet it has been holden that notice is necessary even in enumerated motions, within the 4th rule of January term, 1799. (1 Caines, 506.)
But though the plaintiff might have disregarded the order, even if it had been served upon him, it is not so as to the sheriff. He cannot know whether the matter is properly , put in train for a motion or not. He may disregard a naked order, if he will rely on the assurance of the party that no notice of motion is given, or he may be indemnified against *440proceeding; but the party should not be put to the embar rassment- of indemnifying him ; nor should he be required to proceed in the face of an order to the contrary; which, for aught he knows, may be valid; and by violating which, he may be pmiished as for a contempt or a trespass.
The rule to vacate the order must be granted with costs, to be paid by Dale, who obtained the order.
Rule accordingly.