Manhattan Railway Co. v. O'Sullivan — 37 N.Y.S. 1063

Majority

p. 1063

MANHATTAN RY. CO. v. O’SULLIVAN et al.

(Supreme Court, Special Term, New York County.

February, 1896.)

Headnote

Award of Commissioners—Setting Aside—Appeal—Stay.

An order at special term of the supreme court setting aside an award of commissioners and appointing new ones is an order affecting a substantial right, within Code Civ. Proc. § 1347, and may therefore be stayed pending an appeal.

Action by the Manhattan Railway Company against O’Sullivan and others. Motion by defendants for stay on an appeal from an order of the special term setting aside the award of commissioners. Granted.

Davies, Short & Townsend, for plaintiff.

Evarts, Choate & Beaman, for defendants.

This is a motion for a stay on an appeal from an order of the special term setting aside the award of commissioners. The order appealed from awarded to the defendants $75,000. That order has been set aside, and new commissioners appointed in the proceeding. The trial before the old commissioners occupied several months, and involved large legal expenses. It is claimed on the part of the railway company that the court has no power to grant such a stay, for the reason that the order is not a final, but an interlocutory, order. I am of the opinion that it is within my power to grant a stay under the general provisions of section 1347, Code Civ. Proc. The order affects a substantial right, and it would seem to be a great hardship to compel the property owners to go on with another proceeding, before a new set of commissioners, before having the question determined whether the order setting aside an award for $75,000 was or was not erroneous. See, also, section 3382, Code Civ. Proc. Motion granted upon condition that the appellants stipulate to argue the appeal before the appellate division at the March term, and give an undertaking to pay all costs and damages, not exceeding the sum of $500. Settle order on one day’s notice.