
    PEOPLE v. MANHATTAN RAILROAD COMPANY.
    
      N. Y. Supreme Court, First Department; General Term,
    
      June, 1881.
    When Motion to make Complaint more Definite should be ‘ • Determined before Motion for Receiver—Stay not Granted pending Appeal from Order refusing Stay—Refusal of Judge to Enter Order.
    
      It seems, that where defendant has moved to make the complaint more definite and certain, in a respect material to the question whether a receiver should be appointed, the motion for that relief should be determined before a motion for a receiver.
    But pending an appeal from an order refusing a stay of proceedings until such first motion has been determined, the general term will not order a stay.
    Á stay should not be granted on appeal from an order refusing a stay.
    To raise the question whether a judge improperly refused to enter an order embodying his decision denying a stay, the proper remedy^s an alternative mandamus.
    
      Ex parte motion before the general term by the. Manhattan Railway Company, for leave to enter an order made by J udge Donohue from which an appeal had been taken. Also a motion that the court fix a day when the appeal could be heard prior to the regular October term, and if not to grant a stay of the motion for a receiver until the appeal could be heard and determined.
    The action was brought to enjoin the corporation from doing any further business, to dissolve it, and to appoint a receiver.
    An order to show cause was granted returnable at the special term on May 27, why a receiver should not be appointed. On May 24 an application was made for an order to show cause why the complaint should not be reformed, and for a stay until the decision of the application. The judge granted the order to show cause on the 26 th, but refused the application for a stay. On the 26th the application to reform the complaint was argued, and on the argument an application for a stay was made and refused, and this denial of the motion the judge declind to enter in the records of the court. On May 27, on the calling of a motion for the receiver, some of the stockholders intervened and asked for a postponement until June 3, which was granted.. On June 2 the defendant appealed to the general term from the denial of the stay. In the affidavit then made the denial contained in the ex parte order of May 24, and that at the close of the'argument of the 26th, were both mentioned. On June 3 an appeal was taken from the second order, the one made in court.
    The ground on which it was claimed that the complaint should be reformed was that it proceeded under different and inconsistent provisions, in that it proceeded under section 1798 of the Code'of Civil Procedure to annul the corporate existence for reason equivalent to the old quo warranto, and the issues under which are triable by jury, and also proceeded under section 1785 to dissolve the corporation for insolvency, which latter cause is triable by the court.
    
      
      David Dudley Field, for the motion.
   Per Curiam.

This is an ex parte application for an order staying the plaintiff’s proceedings in the action until an appeal from an order of the court below denying an application for such a stay until the decision of a motion to make the complaint more definite and. certain can be heard, and decided by this court; arid also from an order directing the court below to enter the order of the court which denied the motion for a stay of proceedings.

It appears that the motion to reform the complaint and make it more definite and certain is still pending and undecided before the special term, and it seems to be assumed that' that court will proceed to hear and determine the motion for a receiver before the decision of the motion to correct the complaint.

We have no right to act upon any such assumption. If it be true, as represented in this application, that the complaint involves several causes of action improperly joined, upon one of which no receiver could lawfully be appointed, or is otherwise seriously, defective, we cannot assume that the court below will entertain and determine a motion for a receiver until after the disposition of the pending motion.

On the contrary, our duty is to presume that the question will be disposed of by the court below in conformity to the right and justice of the case, and without prejudice to the right of the defendants to have their motion in relation to the pleadings first determined.

The necessity of having a proper complaint in cases of this character involving interests so important is so clearly apparent that we must presume that no application for a receiver will be entertained and disposedL of before the question raised upon the motion to correct the complaint shall have been fully considered and determined. The disposition of the application for a stay in regard to this branch of the case was purely in the discretion of the court. To grant a stay on an appeal from an order denying a stay would be to introduce a new and embarrassing practice which would lead to intolerable delays in the administration of justice. Without determining at this time whether an appeal from such an order would lie, it is enough to say that we think it would be an indiscreet exercise of our powers to intervene where the merits of the motion remain' under the consideration of the court below, and wholly undisposed of.

If the motion for a stay of proceedings was made at the special term, and there denied, as is alleged, it was the right of the moving party to have the order of denial entered eos debito justitia.

But this motion is not the proper mode to bring up the question whether or not the court refused to enter the order as made. The proper course, we think, would be an application to this court, upon notice, for an alternative mandamus, upon which application the court can determine whether the question was of sufficient importance to justify the issue of its writ.

The motion, therefore, in both of its aspects, must be denied. 
      
       Present, Davis, P. J., and Brady, J.
     