Remsen v. Metropolitan Elevated Railway Co. — 45 N.Y.S. 536

Majority

p. 536

REMSEN et al. v. METROPOLITAN EL. RY. CO. et al.

(Supreme Court, Appellate Division, First Department.

May 14, 1897.)

Headnote

Appeal—Stay during Pendency.

A stay of proceedings pending an appeal from a judgment enjoining the operation of defendant’s elevated railroad in the street in front of plaintiffs’ premises, unless defendants pay plaintiffs a specified sum for the easements taken, should be granted on condition that defendants give a bond to pay the amount awarded by the judgment, with interest and costs, if the judgment be affirmed or the appeal dismissed, and on the further condition that defendants stipulate not to institute any proceeding to condemn plaintiffs’ easements.

Appeal from special term, blew York county.

Action by Charles Bemsen and another against the Metropolitan Elevated Railway Company. From an order denying a motion for stay of the injunction against the operation of defendants’ railroad pending an appeal to the court of appeals from an affirmance of a judgment of the special term in favor of plaintiffs, defendants appeal.

Reversed.

Argued before VAN" BRUNT, P. J., and RUMSEY, WILLIAMS, PATTERSON", and PARKER, JJ.

B. Tolies, for appellants.

W. G-. Peckham, for respondents.

The motion for a stay should be granted upon condition that the defendants, within 15 days after the entry of the order herein, file in the office of the clerk of the city and county of blew York an undertaking with sufficient sureties to the effect that, if the judgment herein be affirmed or the appeal be dismissed by the court of appeals, the defendants will pay the costs, and, in addition, the sum of $22,434.02 with interest from the 30th of December, 1895, the sureties to justify, etc., in case they are excepted to; and upon the further condition that the defendants, within said 15 days, execute a bond in the penalty of $48,000, with two sufficient sureties, who shall justify, etc.; the bond to be conditioned for the payment of $24,290.27, with interest from December 30, 1895, in case the judgment herein be affirmed or the appeal dismissed by the court of appeals, upon the tender to them of the deed provided for in the judgment appealed from; and also upon the condition that within said

p. 537

15 days the defendants file in the office of the clerk of the city and county of New York a. stipulation that during the pendency of this action they will not institute or prosecute any proceedings to condemn any right, interest, or easement of the plaintiffs described in the complaint herein; the plaintiffs to be at liberty to deposit in escrow with the clerk of the city and county of New York the deed referred to in the judgment, which deed is to be delivered to the defendants upon the payment of the amount of fee damage awarded by the judgment.

The order should be accordingly reversed, and the motion granted, upon compliance by the defendants with the foregoing conditions.