Opinion
October, 1920.
Present — Clarke, P.J., Laughlin, Dowling, Smith and Greenbaum, JJ.
This is an application to vacate an order signed by a justice of this court during vacation, staying upon terms the execution of a judgment in an action in equity, pending appeal to the Appellate Division. The claim is made that the order is void because it was an absolute stay signed by a justice of this court out of court. It is admitted and it is perfectly clear that if the order had been in the nature of an order to show cause returnable on the first motion day of the October term containing the same provisions as to a stay and security it would have been perfectly proper. It is also conceded that a justice of the Supreme Court not assigned to the Appellate Division would have been justified in making the order appealed from. It is claimed that such an order could not be made by a justice of this court out of court but could only be made by the Appellate Division as a court. The argument presents a mere technicality. The plaintiffs having been heard fully upon their motion to vacate, we will treat the matter as if the order had been one in the usual form of an order to show cause with temporary restraining provisions. We think the order should be modified by inserting after the provision granting a stay, "and also to pay any amount which may be found due to the plaintiff upon the accounting directed by the judgment," and as so modified an order will be made by this court as a court order. No costs.
Order modified as stated in opinion and, as so modified, made the order of this court.