
    Alexander Woollcott, Respondent, v. Lee Shubert and Others, Appellants.
    First Department,
    November 5, 1915.
    Practice—judgment on pleadings with leave to plead over — extension of time to plead pending appeal improper — stay.
    Where after the reversal of an order granting an injunction pendente lite, the defendants were granted a judgment on the pleadings with leave to plaintiff to serve an amended complaint within twenty days, from "which order the plaintiff appealed, a motion by the plaintiff for an order extending his time to serve an amended complaint until twenty days after the decision of the appeal should not be granted.
    The plaintiff after appealing should apply to the Special Term on notice before pleading over for a stay of proceedings, and thus leave it to the appellate court to determine whether or not in the event of an affirmance he should be given leave to plead over.
    Dowling, J., dissented.
    
      Appeal by the defendants, Lee Shubert and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 8th day of September, 1915, as resettled by an order entered on the 10th day of September, 1915, extending plaintiff’s time to serve an amended complaint.
    
      William, Klein of counsel [Charles H. Tuttle with him on the brief], for the appellants.
    
      Alfred A. Cook of counsel [Emil Goldmark with him on the brief], Leventritt, Cook & Nathan, attorneys, for the respondent.
   Clarke, J.:

This is an action brought by the dramatic critic of a New York newspaper to enjoin the defendants from refusing to permit the plaintiff to enter any theatre, music hall or other place of public amusement controlled by them upon the same terms as the public generally.

The plaintiff claimed that he had been arbitrarily excluded-from such places of public amusement and discriminated against solely because defendants professed tq be displeased with a certain dramatic criticism written by him. An injunction pendente lite having been granted by the Special Term an appeal was taken to this court which resulted in the reversal of the order and a denial of the motion for such injunction. (169 App. Div. 194.)

Thereafter the defendants moved for judgment on the pleadings, which motion was granted by Mr. Justice Weeks by an order which gave leave to the plaintiff to serve an amended complaint within twenty days after the service of said order and that in the event that the plaintiff should fail to serve an amended complaint within the time specified the defendants should have judgment against the plaintiff dismissing the complaint, with costs. Upon the argument the .plaintiff’s counsel conceded that the decision of this court upon the injunction pendente lite proceedings required the granting of the motion for judgment and stated that no amended complaint would be served, but that for the purpose of getting the real question involved before the Court of Appeals at the earliest possible moment he would appeal to the Appellate Division from the order about to be made granting the motion for judgment. It was suggested that a stipulation be entered into to extend the time of the defendants to answer or demur until after the decision of the Court of Appeals. A stipulation to that effect was sent by the attorneys for the defendants to the attorneys for the plaintiff, but it contained the further stipulation that the plaintiff should make no effort to obtain admission to any theatre controlled by the defendants until said determination and to institute no proceedings looking to the enforcement of any criminal liability under the Civil Eights Law (Consol. Laws, chap. 6 [Laws of 1909, chap. 14], §§ 40, 41, as amd. by Laws of 1913, chap. 265) until after such determination. These clauses were obnoxious to the plaintiff and the stipulation was, therefore, returned unsigned.

Thereafter the plaintiff took an appeal to this court from the aforesaid order of Mr. Justice Weeks and also instituted four suits against defendants in the Municipal Court, claiming in each instance a penalty of $500, because of alleged acts of the defendants in refusing to permit him to enter certain theatres. Thereupon the plaintiff made a motion for an order extending the plaintiff’s time within which to pay the costs and to serve an amended complaint, as provided by the order of Mr. Justice Weeks, until twenty days after the decision 'of the Appellate Division of the appeal taken from said order. Said motion was granted by Mr. Justice Sheark, and from the order entered thereon this appeal is taken.

The order appealed from is clearly wrong. (Nillson v. Lawrence, 148 App. Div. 155; Schwabe v. Herzog, 157 id. 672.)

The proper practice as indicated would have been for the plaintiff, after appealing, to apply to the Special Term on notice, before pleading over for a stay of proceedings, and leave it for this court to determine whether or not, in the event of an affirmance, he should be given leave to plead over. The notice of motion was broad enough to permit of that relief. The order appealed from should, therefore, be modified by striking out the provision for the extension of time in which to serve an amended complaint and by inserting in lieu thereof a stay of proceedings pending the appeal to this court, without costs.

Ingraham, P. J., Laughlin and Scott, JJ., concurred;' Dowling, J., dissented.

Order modified as stated in opinion, without costs. Order to be settled on notice.  