In re Pye

Hatch, J. : The basis of attack made upon the order appealed from consists in the claim that the Supreme Court is without power to stay proceedings upon an order made in a Surrogate’s Court, which has been affirmed upon appeal and remitted to such court for its action. We are of opinion that this claim cannot be upheld. When the appeal was taken from the order of the surrogate to the Appellate Division of the Supreme Court, a stay of the execution of the' order was effected by giving the security provided by section 2579 of the Code of Civil Procedure. The only provision of law for the giving of an undertaking to perfect an appeal to the Court of Appeals from such an order is that provided by section 1326 of the Code of Civil Procedure requiring security for costs, etc. Such security was not given when the motion for a stay was made, but the court, in the order staying proceedings, requires such seen [268] rity to be given as a condition of the stay. The giving of the undertaking for the costs of the appeal to the Court- of Appeals perfected the appeal.' We are, therefore, to see what effect, if any, the perfecting of this appeal had in - operating as a stay of the order made by the surrogate. As we have seen, upon appeal to the Appellate Division of the Supreme Court, no stay was obtained until the giving of the undertaking required by section 2579 of the Code of Civil Procedure. The requirement of this undertaking was that the person would surrender himself, in obedience to the decree, to the custody of the sheriff of the county where he was directed to be committed. This undertaking remains in force^ unaffected by the appeal to the Court of Appeals, and is a continuing security for compliance with the decree of the surrogate. It was, therefore, unnecessary for further security to be given so long as this remained in force, and was sufficient to secure the accomplishment of the purpose for which it was given. _ And this ’consideration doubtless led to the omission in the Code to provide for further security, except for the costs in the Court of Appeals. Section 2584 of the Code of Civil Procedure provides: “ Except as otherwise expressly prescribed in this article, a perfected appeal, has the effect, as a stay of the proceedings to enforce the ■ decree or order appealed from, prescribed in section one thousand three hundred and ten of this act with respect to a perfected appeal from a judgment.” Referring to section 1310 it is found to provide: “ Where an appeal * * * to the Court of Appeals, or otherwise, has been heretofore or shall hereafter be perfected as prescribed in this chapter, and the' other acts, if any, required to be done, to stay the execution' of the judgment or order appealed from, have been done, the appeal stays all proceedings to enforce the judgment or order appealed from.” The exception in the remain-' mg portion of the section does not apply to the present case. It is quite evident, therefore, that the appellant in the order had complied with all the provisions of law necessary to perfect his appeal, except the giving of the undertaking for security for costs. When this was done, it, together with the appeal, operated as a stay of proceedings upon the decree appealed from until disposition was made by the Court of Appeals of such appeal. ¡No order Was, therefore, necessary, except for leave to file the security, to stay proceedings [269] upon, the decree upon filing the required undertaking for costs. If,lioweyer, such order was necessary, we have no doubt of jurisdiction in the court to grant it. The argument which denies power in the Supreme Court to grant a stay proceeds upon the ground that the Appellate Division is a court of record distinct from the Supreme Court, and only acquires jurisdiction of a matter when the record is brought before it in a proper proceeding and immediately loses such jurisdiction when it has remitted the record and its order to the court from whence it came; and that as the present proceeding originated in a Surrogate’s Court, and the record has been remitted to that court, no proceeding is now pending in the Appellate Division or in the Supreme Court, and that the Supreme Court is without jurisdiction. The argument makes the Appellate Division of the Supreme Court an appellate tribunal solely, entirely distinct and separate from the Supreme Court. We do not so construe the Constitution creating the court, or the statutes which regulate the course of procedure therein. By section 1 of article 6 of the Constitution, the Supreme Court is continued with general jurisdiction in law and in equity, subject to the appellate jurisdiction of the Court of Appeals. The membership of the Supreme Court is provided, and by the next section of the same article of the Constitution “an Appellate Division of the Supreme Court” is created. While certain limita.tions are placed upon the members designated to sit in such court, yet they are left in specified instances to perform the duties of a Supreme Court judge. In reality, the Appellate Divisions are a continuance of the former General Terms, exercising thé same appellate jurisdiction, but remaining, as did the former court, a part of the Supreme Court of the State. So far as the exercise of jurisdiction is concerned in matters which are brought before it, it possesses the same power and authority as was formerly possessed by the'General Terms, . and the provisions of law which provide for remitting its records, orders and judgments to inferior tribunals for their action and to carry out its orders and judgments relate to methods of'procedure, and are not limitations upon its original jurisdiction. There is nothing in the provisions of the Constitution, except the limitations upon the exercise of authority by its members, which assumes, either in terms or by implication, to limit its jurisdiction in respéct of' which it had formerly been exercised. [270] The exercise of authority generally by the former Court of Cham eery and subsequently by the. Supreme Court over inferior courts, including Probate Courts, has always been recognized and has been continually exercised, except so far as it has been changed either by constitutional provision or by legislative enactment. Brick's Estate (15 Abb. Pr. 12), where Judge Charles P. Daly, in a learned and scholarly opinion, traces the history of Surrogates’ Courts and the jurisdiction of other courts in connection with them, where is made clearly to appear the general jurisdiction formerly exercised by the Court of Chancery, to whose powers the Supreme Court succeeded. It seems clear, therefore, that when the appeal to ■ the Appellate Division from the surrogate’s decision was taken, the matter came into the Supreme Court, and such court has general jurisdiction over it. . Methods of procedure in the Supreme Court are the subject of l'egis*lative control. Limitation upon its jurisdiction is beyond legislative power; it is accomplished only by constitutional provision. Where the Legislature has failed to act in prescribing methods of procedure, parties are relegated to the former practice of the courts, and may invoke any power possessed by the court to assert or protect a right or redress a wrong. In respect of stay of proceedings, the Supreme Court has always had jurisdiction, and exercised it at common law. Indeed, .the old writ of error operated as a stay of proceedings when allowed. (People ex rel. Clarke v. The Commissioners of Highways of Deerfield, 22 Wend. 587.) It was the operation of this writ in staying proceedings that produced .statutes requiring security to be given and thus protecting a party in securing the fruits of his judgment. The first statute makes complaint upon the subject in these words : “ For as much as his highness’ subjects are now more commonly withholden from their just debts, and often in danger to lose the same, by means of writs of error, which are more commonly sued than heretofore they have been. Be it, therefore, enacted * * * that from and after the end of this present session of Parliament, no execution shall ■ be stayed or delayed upon, or by any writ of error or supersedeas thereupon to be sued * * * .in any action or bill of debt,” unless bail be . given. (3 Jac. 1, cap. 8.) In this country the writ of error was a writ of right, and issued without allowance by the judge. But bail seems tó have been required in all cases. (Van Antwerp v. Newman, 4 [271] Cow. 82.) The practice was subsequently regulated by statute, and the writ was allowed by a justice of the Supreme Court or other officer authorized to perform the duties of a justice. Bail was required, and when given and the writ allowed a stay was granted, by order, if execution had issued, and by indorsement of stay'upon the writ if none had issued. (Graham’s Pr. 948, 949.) The Judiciary Act of 1847 (Laws of 1847, chap. 280, § 17) authorized the Supreme Court to grant a stay in all cases where an appeal was - permitted. The earlier statutes have been repealed, writs of error abolished, and the subject-matter regulating procedure, for the most part, has been embodied in the Code of Civil Procedure. But neither in the Constitution nor in the statutes, whether in the Code or elsewhere, so far as we are able to find, has the authority of the Supreme Court to grant a stay of proceedings, upon-appeal, in a case where there is no provision of law regulating it, been taken away, abridged or in any wise limited. The- power exists and may be exercised as it always has been. The case of Deyo v. Morss (38 N. Y. St. Repr. 477) is "in no sense in conflict with this view. In that case the proceeding was in progress in the Surrogate’s Court, from which no appeal had been taken and which still remained undetermined by the surrogate. Even there the authority of the Supreme Court was recognized. The only question determined related to the manner of its exercise. . It was held that an order staying proceedings was improper, but that relief might be obtained by injunction. In like manner the decisions of the Court of Appeals, holding that jurisdiction is lost by a return of the remittitur, are without application for the reason that it is possessed only of the jurisdiction in this respect which the record confers. As we have seen, the jurisdiction of the Supreme Court is original and embraces the subject-matter. In the present ease it became necessary for the appellant to obtain the order, as he had omitted to file security for costs, and consequently there was no stay until the court provided for the.omission, giving leave to file the security. When this was done the stay was complete without further order. The order should be affirmed, with ten dollars costs and disbursements. All concurred, except Bartlett, J., who concurred in the result. Order affirmed, with ten dollars costs and disbursements.