Jaques a. Areson. BY THE COURT*-BIRDSEYE, J.-Upon the complaint in this action, which was duly verified, an injunction was obtained. The defendants put in answers duly verified, and moved thereon to dissolve the injunction. On the motion, plaintiffs offered, and were allowed, to read affidavits in support of the complaint, the defendants objecting. The only question presented on the appeal is, whether they were properly so read. There has been no little contrariety of opinion upon this point. It was early held, by Edwards, J., in Servoss v. Stannard (2 C. R., 56), that the plaintiff could not in such a case read affidavits to contradict the answer; and in Hartwell v. Kingsley (2 Sandf., S. C.. R., 674, and note), that position is stated to have been approved by all of the judges of the Superior Court of New York city. In the Merrimac Manufacturing Company v. Garner (2 Abbotts' Pr. R., 318, 322), in the New York Common Pleas, Woodruff, J., held, at special term, that the plaintiff in such a case could not read affidavits to support the allegations in the complaint. The learned judge declined to express any opinion whether in a case in which the defence rests upon new matter set up in the answer in avoidance of the facts charged in the complaint, but admitting the charges to be true, the answer may be regarded as itself an affidavit of such new matter, so as to let in opposing affidavits on the part of the plaintiffs. The general term gave no opinion upon this question, placing their decision upon a different point. The case of Benson v. Fash (1 C. R., 50) was decided with reference to pleadings verified merely on belief, according to section 133 of the Code as originally enacted. In Krom v. Hogan (4 How. Pr. R., 225), it was held by Parker, J., that affidavits could be read by the plaintiff in a case like the present. The same ruling was made in Schoonmaker v. The Reformed Protestant Dutch Church of Kingston (5 Ib., 265, 268), and in Hascall v. Madison University (1 C. R., N. S., 170), and more recently in Hollins v. Mallard (10 How. Pr. R., 540). Although this point was not directly involved, I think the same conclusion will follow from the cases of Benson v. Fash (1 C. R., 50), Roome v. Webb (1 C. R., 114; S. C., 3 How. Pr. R., 327), Minor v. Terry (6 How. Pr. R., 211): all of which hold that a * Present S. B. Strong, Birdseye, and Emott, JJ. Jaques a. Areson. pleading verified in the manner required by section 157 of the present Code, is, within the meaning of the Code, an affidavit, and to be used as such in moving for the injunction or to dissolve it. The opposite views taken of this point in Millikin v. Cary (5 How. Pr. R., 272 ; S. C. 3 C. R., 250), are, I think, long since and generally abandoned. (See 1 C. R., 170, and 6 How. Pr. R., 210.) It would seem, therefore, that the weight of authority was decidedly in favor of the position taken by the judge at special term, in allowing the plaintiffs' opposing affidavits to be read on the motion. But, upon principle, I think the conclusion right. By section 225 of the Code, applications to vacate injunctions are divided into two classes. The first class includes applications founded on the insufficiency of the case made by the plaintiff. In such instances, the motion to vacate may be made upon the complaint and the affidavits on which the injunction was granted. These are all that can be needed to present for decision the question of the sufficiency or insufficiency of the plaintiff's case. The other class of these applications is where the defendant moves upon a state of facts different from that which the plaintiff has stated. These facts must be shown upon affidavits. This class of motions is, therefore, to be made "upon affidavits on the part of the defendant." He may or may not read his answer, at his election. By section 226:"If the application be made upon affidavits on the part of the defendant, but not otherwise, the plaintiff may oppose the same by affidavits or other proofs in addition to those on which the injunction was granted." It has been truly said that this provision is not very clearly expressed (6 How. Pr. R., 68). But it seems to me that the meaning of the section, taken in connection with the previous one, is, that whenever the motion is not founded on the insufficiency of the plaintiff's own case; or in other words, if the motion falls within the second class above mentioned; and is founded on a different state of facts alleged by the defendant, the plaintiff may rebut the proofs of the defendant by reading affidavits and other proofs in addition to those on which the injunction was granted. These views are well. expressed in Schoonmaker v. The Reformed Protestant Dutch Church in Kingston, and Hollins v. Mallard (supra), and are confirmed by the cases of Krom v. Hogan, Hascall v. The Hicks a. Smith. Madison University, Benson v. Fash, and Roome v. Webb (supra). The order appealed from should be affirmed with costs. HICKS a. SMITH. Supreme Court, Second District; General Term, March, 1857. APPEAL FROM ORDER.-STAY OF PROCEEDINGS. An appeal to the general term, under section 349 of the Code, from an order of the special term, is not per se a stay of proceedings. A stay pending such appeal can only be obtained by the special order of the court. Appeal from an order made at special term denying a motion to set aside a judgment for irregularity. This action was brought by William T. Hicks and Franklin Whiting against Abel Smith and Francis Mather. Pending an appeal taken by the defendants from an order of the special term, the plaintiffs entered judgment. The defendants then moved to set aside the judgment as irregular; contending that their appeal was per se a stay of plaintiff's proceedings. The motion being denied, they now appealed to the general term. S. F. Clarkson, for appellants. S. M. Meeker, for respondents. BY THE COURT*-BIRDSEYE, J.-The only question presented by the appeal in this case is, whether an appeal to the general term, taken under section 349 of the Code, from an order made at special term, is, per se, a stay of proceedings on the order appealed from. That the appeal operates as a stay has been held in the seventh district, both at special term (Emerson v. Burney, 6 How. Pr. R., 36; Trustees of Penn Yan v. Forbes, 8 Ib., 285; Cook v. Pomeroy, 10 Пb., 103) and at general term (see 8 lb., 287), and * Present, S. B. Strong, P. J., Birdseye and Emott, JJ. Hicks a. Smith. in the fourth district at special term (Stewart v. The Saratoga & Whitehall Railroad Company, 12 Ib., 435). The opposite was held at special term in the first district (Story v. Duffy, 8 Ib., 488, and in Forbes v. Oaks, 2 Abbotts' Pr. R., 120), and in the eighth district (Hibbard v. Burwell, 11 How. Pr. R., 572), and by all the judges of the Superior Court of New York (Bacon v. Reading, 1 Duer, 622). The only reasons given for the course of decisions in the seventh district are given in the case of Emerson v. Burney; for the later cases there are decided solely on the authority of that decision. These reasons are stated at 6 How. Pr. R., 36, thus:-"The Code nowhere declares an appeal in any case a stay of proceedings, not even in cases where security is required. In several cases it provides that the appeal shall not stay the proceedings, unless certain undertakings are given; clearly assuming, I think, that the appeal does so operate, whenever the required security is given in those cases where it is required, and that it equally suspends proceedings upon the order appealed from in those cases where security is not required." It is obvious that in making these remarks, the learned judge overlooked section 339 of the Code. This section directs that whenever an appeal is perfected to the Court of Appeals, and security given as required by law, it shall "stay all further proceedings in the court below upon the judgment appealed from, or upon the matter embraced therein." And sections 345 and 348 refer to and adopt this provision as to appeals from an inferior court to this court, and from the special to the general term of this court. The learned judge proceeds :-" The review by appeal is substituted for a writ of error in the cases where formerly a writ of error would lie; and by the common law a writ of error suspended the proceedings upon the judgment or order appealed from, excepting where otherwise provided." I am unable to perceive the force of the analogy here sought to be drawn. There was never any such a thing as a writ of error to review orders like those before the court in the present case, and the others above cited. And the present appeal is not a substitute therefor. The reason why a writ of error stayed the proceedings was, that it removed, or was in law supposed to remove, the record to the court of review (Hibbard a. Burwell, Hicks a. Smith. 11 How. Pr. R., 573). But no such reason applies to the appeals now under consideration. The court still remains in full possession of the case and the record, ready at all times to proceed. It is true that the learned judge, in Emerson v. Burney, says it is only in cases where a writ of error would formerly lie, that a review by appeal is now substituted therefor. But as a writ of error would not formerly lie in a case like the present, no analogy on this point could be drawn from the former to the present practice. And did there appear to be in the nature of things any such analogy, in my opinion it is destroyed by that provision of the Code which entirely abolishes writs of error (§ 323). If there is no better rule than that of analogy to govern the practice on the point in dispute here, in my opinion, resort should be had to the system of appeals in chancery, from which the provisions of the Code as to the review of judgments and orders are evidently borrowed. The Revised Statutes contained provisions carefully and minutely framed for the stay of proceedings on appeal from the chancellor to the Court of Errors. The security required to be given was pointed out, and was applicable to most, if not all, cases that could arise (2 Rev. Stat., 605, §§ 78-89). And in section 86 is found a provision from which section 339 of the Code above referred to is taken, making the appeal when duly perfected a stay of proceedings on the decree appealed from. But no similar provision was made as to the stay on appeal from the vice-chancellor to the chancellor. By 2 Revised Statutes, 178, § 61, the chancellor was by general rules to prescribe "in what cases, to what extent, and on what terms, any order or decree of the vice-chancellor should be suspended or affected by an appeal." By the rule made pursuant to this statute (see Rule 116 of 1844), no appeal from any interlocutory order or decree of a vice-chancellor was to operate as a stay of proceedings, unless a special order to that effect should be made by the chancellor, or unless a certificate of probable cause for the appeal was obtained from the vice-chancellor. And security was required to be given in the same manner, and to the same extent, as on appeal from the chancellor. The principle upon which all these regulations were based is |