In re Lyman , 60 N.Y.S. 76 ( 1898 )

Beekman, J.

This is a motion for a stay of proceedings pending an appeal taken by the respondent from an order heretofore made and entered herein revoking a liquor tax certificate. The motion is brought on an order to show cause with an ad interim stay, and the preliminary objection is made by the attorney for the petitioner that the affidavit on which such order was made fails to state any reason for a shorter notice than eight days, as required by Rule 37 of the General Rules of Practice and by section 780 of the Code of Civil Procedure. It is also further objected that the order makes no provision for the service of the same on the petitioner. I think the first objection is well taken. The notice provided for in the order is less than eight days, and no reason is disclosed by the affidavit for thus shortening the time. The order was, therefore, made in violation of section 780 of the Code of Civil Procedure and rule 37 of the General Rules of Practice. The objection is a substantial one, and when raised cannot be disregarded by the court (Proctor v. Soulier, 82 Hun, 353.) The second objection is also well taken. The motion must, therefore, be dismissed, with $10 costs. Notice order for settlement.