Majority
p. 487(24 Misc. Rep. 87.) CAMPBELL & THAYER CO. v. FROST et al. (Supreme Court, Special Term, Kings County. June, 1898.)
Headnote
l. Appeal—Denial of Injunction—StayThe only affirmative thing in a judgment denying a perpetual injunction is the judgment for costs, and this may be stayed pending an appeal by the usual undertaking.
3. Injunction—Denial—Grant Pending Appeal.
Where a perpetual injunction has been denied, the court has no power to grant one pending appeal.
Action by the Campbell & Thayer Company to obtain a perpetual injunction restraining John F. Frost and others from obstructing .-an alleged street. Judgment for defendants. Motion .for a stay of judgment pending appeal.
Denied.
A. E. Lamb, for plaintiff.
J. C. Bergen, for defendants.
The judgment for costs may be stayed by the usual -undertaking on appeal. An order for that purpose is neither necessary nor allowable. There is nothing else to stay. That is the only affirmative thing in the judgment. The rest of it is a negative, being m, mere denial of the injunction prayed for by the complaint. There is nothing affirmative there to stay. What the plaintiff really wants therefore is that having rendered judgment denying an injunction the court should now make an order granting one pending appeal. "This would be an inconsistent thing, and the court has not the power Jo do it.
The motion is denied.