p. 247Gotthelf Pach et al., Resp’ts, v. Nicholas Geoffroy, Impl’d, App’lt.(Supreme Court, General Term, First Department,Headnote
1. Injunction—Stay on appeal—Undertaking.An undertaking to stay an injunction pending an appeal should not be conditioned for the payment of liquidated damages in case of affirmance, hut for the payment of such damages as the respondent will suffer by reason of the continuance during the pendency of the appeal of the acts enjoined.
An affidavit of an attorney of statements made to him by his clients as to the damages sustained by them will not be regarded by the court where the client himself can make the affidavit.
Appeal from order staying proceedings pending an appeal on condition that defendant furnish an undertaking to pay fifteen thousand dollars as liquidated damages in case of affirmance.
Action to restrain the use by defendants in their business of certain machinery causing vibration.
D. C. Crosby, for app’lt; Abram Kling, for resp’ts.
—The order made staying proceedings on the appeal from the judgment herein was within the discretion of the
p. 248judge to whom the application was made, and we see no reason . for disturbing that order so far as the stay is concerned. But the conditions imposed we regard.as onerous in the extreme. There was nothing presented as reliable proof which justified fixing the amount of the undertaking to be given at fifteen thousand dollars or establishing that amount as liquidated damages. The plaintiffs did not nor did either of them make affidavit as to the expenses they had incurred or thé amount of damage they had suffered or probably would sustain by reason of the acts of the defendant enjoined by the decree appealed from. All that appears is a statement in the affidavit of the plaintiffs’ attorney “ that the said plaintiffs have informed your deponent that expenses of this liti- ■ gation have, independent of the suffering and annoyance caused by the acts of the defendants, amounted to the sum of five thousand dollars.”
Why neither of the plaintiffs have deposed as to this statement does not appear, and we have held time and time again that such a statement as this, made by an attorney where the party himself can make the affidavit, will not be regarded by the court. It is perfunctory swearing and must be discouraged. There was nothing before the court to justify the requirement of an undertaking in so large an amount; nor is it proper to require on such a motion that the undertaking shall be for liquidated damages. This order should be modified. The stay of proceedings will be maintained for the present, but the appellants must within ten days apply anew to the special term to fix the amount of an undertaking to be given as a condition of continuing the stay until the decision of the appeal from the decree, and on that application whatever is to be presented on either side for the consideration of the court must be by affidavits of persons competent to make them. The undertaking must be filed within a time to be fixed by the special term, and be conditioned that the defendants will pay to the plaintiffs such damage as may be sustained by the plaintiffs by reason of the defendants continuing during the pendency of the appeal the acts enjoined by the decree. No costs of this appeal to either party.
Van Brunt, P. J., and O’Brien, J., concur.