Douglass v. Haberstro , 10 Abb. N. Cas. 6 ( 1881 )

Barker, J.

— The defendant’s motion is granted, without costs, and the order entered by the clerk is to be amended so that it will in terms provide for a stay until decision of exceptions at general term.

There can be no fair doubt but that the defendant’s attorneys understood that the effect of the order was to stay all proceedings upon the verdict until the exceptions were heard and decided.

It was intended by the court that judgment be suspended, and I am unwilling that such intention be frustrated by an erroneous entry of the order by the clerk.

Mr. Hubbell should not have entered a formal order in the form which he did, reciting that it was done on the motion of the defendant’s attorneys. That action was an interference, and the terms of the order is not in strict conformity to entry in clerk’s minuies. But Mr. Moot seemed to have acquiesced in the act done, by Hr. Hubbell, in his name, which mitigates this feature of irregularity.

I am inclined to the opinion that an order sending the exceptions to the general term, there to be heard in the first instance, does not suspend the entry of judgment unless the order as entered also provides for the suspension of judgment upon the verdict. Section 1000 [Code of Gvoil Procedure) is in the article entitled “ Exceptions, Case and Motion for a New Trial.”

The motion to be made in the general term is- for a new trial on the exceptions, and all that court has power to do is to grant or refuse the motion;

If the opposing aifidavits had contained facts showing the judgment could not be collected, if the motion for a new trial is denied, I should have sought to make an order retaining the lien now secured by the entry of judgment, but it would be contrary to the express understanding on the trial to allow this verdict to be collected before the decision of the general term It was the very object and purpose of the order to. have the law of the case settled before further proceedings on the verdict were had.