Emigrant Mission Committee of German Evangelical Lutheran Synod v. Brooklyn Elevated Railroad

Majority

p. 624

EMIGRANT MISSION COMMITTEE OF GERMAN EVANGELICAL LUTHERAN SYNOD v. BROOKLYN EL. R. CO.

(Supreme Court, Appellate Division, Second Department.

April 18, 1899.)

Headnote

Appeal—Stay of Proceedings—Vacation—Discretion.

In an action to compel an elevated railroad company, to cease operating, its road in front of plaintiff’s premises or pay a fixed sum as damages, where an appeal by the company from a judgment for plaintiff does not clearly appear to be without merit or for delay resulting in advantage to> it", the denial of a motion to vacate a stay of proceedings is in the discretion of the lower court, regardless of the institution of condemnation pro>--' ceedings by the company after judgment.'

Appeal from special term, Kings county.

Action by the Emigrant Mission Committee of the German Evangelical Lutheran Synod of Missouri, Ohio, and other states, at the;

p. 625

city of New York, against the Brooklyn Elevated Railroad Company, From a judgment for plaintiff, defendant appeals. From an order refusing to vacate a stay of proceedings on appeal, plaintiff appeal©.'

Affirmed.

Argued before GOODRICH, P. J., and BARTLETT, HATCH, s:nS WOODWARD, JJ.

Stephen M. Hoye (James A. Sheehan, on the brief), for plaintiffs

Alexander S. Lyman, for defendant.

It is to be assumed that the stay was? granted in this case because the learned judge who made the order thought that the appeal raised questions which ought to be passe® upon by the court of last resort before the respondent should be compelled either to stop the operation of its railroad in front of the plaintiff’s premises or pay $3,500 for the depreciation in the fee value of those premises. We cannot say that he was wrong in this view; and' the correctness of his conclusion that the questions of law involve® were grave enough to warrant a stay is in no wise affected by the subsequent action of the elevated railroad company in instituting ccmrdemnation proceedings to acquire the plaintiff’s property. If it clearly-appeared that there was no merit in the appeal, and, furthermore*, that it was taken purely for delay, in order to enable the railroad company to procure, through the condemnation proceedings, a lower valuation of the plaintiff’s premises than had been fixed in the equity action, a different question would be presented. Upon the paper© before him, we think that the learned judge at special term properly exercised his discretion in refusing to vacate the stay.

Order affirmed, without costs. All concur.