Drexel v. Pease — 14 N.Y. St. Rep. 938

Majority

p. 938

ANTHONY J. DREXEL et al„ Resp’ts, v. JOSEPH M. PEASE et al., App'lts.

Headnote

Practice—Stay pending appeal—Terms.

Appeal from order granting stay of proceedings on reference- ordered by interlocutory judgment pending appeal.

Oliver J. Wells, for app’lts; W. O. Judge, for resp’ts.

There seems to be no reason why, pending an appeal, the funds in question should be kept at a low rate of interest, and the appellant have no indemnity therefor.

The parties should be put in the same position as nearly as possible, pending the appeal as though the stay had not been granted, and indemnity against this loss of interest is necessary in order that if the appellant herein should finally succeed in the action, he may not be called upon to bear the same.

As a condition of the stay, the order should have provided that a bond should be givi.n to pay the difference between the rate of interest paid by the trust company, and legal, if the judgment should be confirmed.

The suggestion upon the part of the appellant that the testimony of two of his witnesses should be taken so that their testimony may be perpetuated in case of their death, seems, also, to be a reasonable one and provision should be made therefor.

The order should be modified by providing for the giving of a bond for the payment of the difference in interest and frr the taking of the testimony of the two witnesses upon the part of the defendant.

An order should be entered modifying the order as above suggested, without costs.