Opinion
Submitted October 4, 1948
Decided October 14, 1948
Appeal from the Supreme Court, New York County.
David R. Crow for motion.
Isidor Neuwirth and Emil Katzka opposed.
An order requiring security for costs can be made only by "the court in which the action is pending" (Civ. Prac. Act, § 1524). When the motion for security in the present case was made (see Civ. Prac. Act, § 113), no appeal had been taken to this court and the action was pending in the Supreme Court for all purposes. The subsequent appeal to this court did not have the effect of transferring the action to us. Under our practice, the record itself is not transmitted to us but merely a transcript thereof. Hence, with the exception of matters relating to the appeal itself and motions required by statute to be made here (Rules of the Court of Appeals, rule XVIII; Cushman v. Hatfield, 52 N.Y. 653; Civ. Prac. Act, § 149), the action is regarded for all other purposes as still pending in the court of original jurisdiction ( People ex rel. Hoffman v. Board of Education, 141 N.Y. 86, 87; Henry v. Allen, 147 N.Y. 346, 347. See, also, Waldo v. Schmidt, 200 N.Y. 199; Matter of Schaefer, 293 N.Y. 774).
It follows that (even though an appeal is pending here in the present case) a motion for a stay pursuant to sections 1524 and 1528 of the Civil Practice Act must be made in the Supreme Court in which the action was brought.
The motion should be denied.
LOUGHRAN, Ch. J., LEWIS, CONWAY, DESMOND, THACHER, DYE and FULD, JJ., concur.
Motion denied.