[After stating the facts as above.]—It appears from the record submitted upon this appeal that, at the time of the granting of the order to show cause, and of the hearing of the motion thereon, the stay of proceedings contained in the order of November 17,1878, was in full force and effect as far as the defendants to this action were concerned. It is true that the record contains an order vacating this stay, bearing date the 10th of October, 1879, but it appears that such order was never entered so as to become an order of the court prior to the 11th of November, 1879; neither was any copy of it ever served upon the defendants appellant. As far as they were concerned, therefore, the stay still continued, and the court had no power to entertain any motion or application upon the part of the plaintiff.
The court could not disregard this stay and treat it as a nullity before it had been revoked. The plaintiff was bound to respect the same as long as it was in force. (Dunean v. Sun Fire Ins. Co.,2 Wend. 625; Mallory v. East River Ins. Co., 7 Hill, 193; Starrr v. Francis, 22 Wend. 634). This objection is not cured by the fact that the order appealed from was not signed until after the vacation of the stay. The order to show *333cause, which was the foundation of the motion, and the motion ' e itself, was made at a time when the stay was m operation—• entirely unrevoked. Under these circumstances the order appealed from was irregularly made, and must be reversed with costs and disbursements of the appeal.
Appeal from the order denying a motion to vacate the order appointing a new referee.J. F. Daly, J., concurred.
Order reversed, with costs.
Van Brunt, J.This is an appeal from an order of Mr. Justice Labbemore, dated on the 20th of April, 1880, denying a motion to set aside an order of reference made in this action on the 31st of October, 1879. The grounds upon which said motion was based were that certain statements had been made upon the opening of the case before the referee, that the trial of the case would not involve any great amount of testimony upon the part of the plaintiff. The original order of reference in this action having been sustained mpon an appeal to the general term in Devlin v. Mayor, <&c. (54 How. Pr. 50), it is difficult to see where the judge at special term could acquire the authority to vacate the order of reference so affirmed. He was undoubtedly bound in his decision by the previous adjudication of the general term in this case that it was a proper action to refer. He had no right to review such adjudication of the general term, and was bound to follow the decision so made. The order, therefore, denying the application was entirely proper, and must be affirmed, with costs and disbursements.
J. F. Daly, J., concurred.
Order affirmed, with costs.