Auditorium Co. v. Sam S. Shubert Booking Agency

The papers before the judge who granted the ex parte order showed that an appeal was to be taken to the Court of Appeals. The only authority for granting a stay in such a case is found in section 775 of the Code. Section 1351 relates only to appeals to the Appellate Division. Under section 775 the judge to whom the application was made had power to grant a stay for 20 days, but as no appeal had yet been taken and there was therefore no “judgment appealed from,” in the language of section 775 he had no power to grant a longer stay.

The order must be modified so as to reduce the stay to one of 20 days.