Opinion
January Term, 1900.
Order reversed, with ten dollars costs and disbursements, and motion for stay denied, with ten dollars costs.
This action was tried in February, 1896. As to some of the defendants the complaint was dismissed, but the court directed the entry of an interlocutory judgment against the other defendants, some of whom are the respondents on this appeal. Nothing seems to have been done in the action from that time until the 13th of January, 1899, when the defendants who had succeeded caused to be entered a judgment which disposed of all the issues litigated at the trial and established the liability of the defendants against whom the plaintiff had succeeded. A copy of this judgment, with notice of its entry, was served by the attorneys of the defendants, who entered it, upon these defendants as well as upon the plaintiff. Nothing more was done in the matter however, until the month of March, 1899, when the plaintiff caused an advertisement to be published giving notice of proceedings before the referee. That advertisement was published and the matter was in readiness to go before the referee when the motion for this stay was made. The defendants who have made this motion, although they say that it is their intention to take an appeal from the judgment, have not appealed nor does it appear that they have filed or served exceptions to the decision of the court. It is quite clear to us, upon that state of facts, that it was an abuse of the discretion of the court to stay these proceedings. It is not necessary to consider whether the time of the defendants to appeal was set running by the service of the copy of the judgment and notice of its entry by another defendant. It is sufficient to say that the delay which took place after the defendants had become aware of the entry of the judgment and become acquainted with the liability imposed upon them by it, coupled with the facts that they have not yet seen fit to appeal from it, is a sufficient reason for denying them the stay. The order staying these proceedings should, therefore, be reversed, with ten dollars costs and disbursements, and the motion for the stay denied, with ten dollars costs. Van Brunt, P.J., O'Brien and Ingraham, JJ., concurred.