Mallory v. East River Insurance

By the Court,

Although the order to stay proceedings had no effect at the first, it became operative when the motion papers were subsequently served; and then, the motion having been made in due time, the plaintiff’s proceedings were stayed “ until the decision of the court” on the motion; or, as it is also expressed, “ until the order of the court.” (Rule 58.) (a) The “ decision” or “ order of the court” was not made, within the meaning of the rule, until the order was finally settled by the judge and entered in the clerk’s minutes on the 10th of March. Down to that time the order to stay proceedings continued to operate, and the execution, which was issued two days before, was consequently irregular. It is not necessary to say what would be the effect of unnecessary delay in drawing up and entering the order of the court on a motion; for here there was no negligence on the part of the counsel for the moving party.

Should we yield to the argument that the motion was decided on the third of March, it would put the plaintiff equally in the wrong; for the inquest “ and all subsequent proceedings” were set aside. The judgment was gone, and there was no authority for the execution which was afterwards issued. The payment of costs was not made a condition of granting relief, as is usual in such cases. The proceedings were set aside absolutely, and the plaintiff could only get his costs by taxing and demanding them under the order.

In either view of the question the execution was irregular, and must be set aside.

Motion granted.