
    Nachman Kirsner, Appellant, v. The State Bank, Respondent.
    (Supreme Court, Appellate Term, First Department,
    April Term —
    Filed May, 1921.)
    Banks and banking — money paid for transmission to foreign country — court without power to grant stay until recognition of a government in Russia — depositions — Municipal Court of city of New York — laches.
    A sum of money paid to the defendant bank by plaintiff in 1917, for transmission to his wife in Russia, was never paid to her, and soon after her arrival in this country in 1920, plaintiff demanded a return of the money, which was refused. In a Municipal Court action for money had and received, held, that the court was without power to grant a motion for a stay “until three months after the recognition of a government in Russia by the United States of America, and the appointment of and the installation of Ambassadors, Ministers and Consuls, so that a commission may issue to take testimony.”
    Such a stay is too indefinite and uncertain and in effect amounts to a final disposition of the action, and an order granting the motion therefor is appealable and will be reversed and the case set down for trial on a day certain.
    The action having been begun on December 10, 1920, the defendant in failing to apply for the issuance of a commission to take testimony, until February 3, 1921, the day the case was set for trial, was guilty of laches.
    
      Appeal by plaintiff from, an order of the Municipal Court of the city of New York, borough of Manhattan, second district.
    Leopold Klinger, for appellant.
    Max Silverstein, for respondent.
   Guy, J.

In 1917 plaintiff paid $360 to the defendant bank for transmission to his wife in Russia. The money was never paid to her; she arrived in this country in 1920, and plaintiff shortly thereafter demanded the return of the money so paid by him to defendant, which demand was refused. The action was begun by plaintiff by the service of a summons on the 10th day of December, 1920, which was endorsed Money had and received for transmission to foreign country,” and an answer was filed on December fourteenth in the form of a general denial and demand for a bill of particulars. No application was made for a stay or for the issuance of a commission to take testimony until the 3d day of February, 1921, when defend.ant, alleging on affidavits setting forth that under present conditions existing in Russia it was impossible for it to obtain the proof, necessary to establish its defense, moved for a stay “ until three months after the recognition of a government in Russia by the United States of America, and the appointment of and the installation of Ambassadors, Ministers and Consuls, so that a commission may issue to take testimony,” which motion was granted.

The stay granted is so indefinite and so uncertain in duration, its termination being made dependent upon the happening of events which may never happen, that it amounts in effect to a final disposition of the action. We are of the opinion that the court was without power to grant such a stay, and the order is, therefore, appealable. We are also of the opinion that the defendant has been guilty of laches in failing to apply for the issuance of a commission until after the day set for trial.

The order must, therefore, be reversed, with ten dollars costs, and the case set down for trial on the 2d day of June, 1921.

Whitaker and Weeks, JJ., concur.

Order reversed, with ten dollars costs.  