Offset Paperback Mfrs. v. Banner Press

Full title: OFFSET PAPERBACK MFRS., INC., Respondent, v. BANNER PRESS, INC., Appellant

Court: Court of Appeals of the State of New York

Date published: Apr 27, 1976

39 N.Y.2d 770 (N.Y. 1976)

384 N.Y.S.2d 780

349 N.E.2d 880

Opinion

Argued March 25, 1976

Decided April 27, 1976

Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, THOMAS C. CHIMERA, J.

Jerome R. Halperin, P.C., for appellant.

Roy D. Toulan and Simeon Brinberg for respondent.

MEMORANDUM. In this action to recover for goods sold and delivered, defendant concedes the correctness of the Appellate Division's order awarding plaintiff partial summary judgment. We cannot consider his application for a stay of enforcement of that judgment made for the first time in this court. The grant or denial of such a stay lies within the sound discretion of the court below (CPLR 3212, subd [e]; 4 Weinstein-Korn-Miller, N Y Civ Prac, par 3212.09; Cohen and Karger, Powers of the New York Court of Appeals, § 151, p 597).

Accordingly, the order must be affirmed.

Chief Judge BREITEL and Judges JASEN, GABRIELLI, JONES, WACHTLER, FUCHSBERG and COOKE concur.

Order affirmed, with costs, in a memorandum.