American Bank Note Co. v. Metropolitan Elevated Railway Co.

Majority

p. 375

The American Bank Note Company, Resp’t, v. The Metropolitan Elevated Railway Co. et al., App’lts.

(Supreme Court, General Term, First Department,

Filed November 18, 1892.)

Headnote

Stay—Conditions.

Where a stay of injunction is granted pending appeal conditioned upon

p. 376

the defendant’s stipulating not to take condemnation proceedings or contest the plaintiff’s rights except in the act.on, the defendant after accepting the benefits of the stay cannot refuse to comply with the stipulation or be h1 ard to claim that the condition was i equitable or an abuse of discretion.

Appeal from that portion of an order staying an injunction pending appeal which required defendants to give a stipulation not to take condemnation proceedings, or contest the plaintiff’s rights except in the action.

Davies & Rapallo (Julian T. Davies and Alexander S. Lyman, of counsel), for app’lts; Peckham & Tyler (W. G. Pechham, of counsel), for resp’t.

The facts connected with the giving of the stipulation, and the stipulation itself, are stated in the opinion herewith handed down. In re Metropolitan R. Co., ante. The principal insistence upon this appeal is that the court had no power to compel the railway company to give a stipulation which would deprive it of the right of eminent domain beyond the life of the judgment appealed from, and that, though it be conceded that the court had such power to exact it, it was inequitable and an abuse of discretion. In this connection, however, it should be remembered that the defendant was applying to the judge for a favor; and we are referred to no reason or authority -which would prevent a court or judge from imposing conditions, no matter how onerous, as a consideration for granting a stay pending appeal. It was entirely competent for the defendants, when the terms were made known, not to accept the same. But we fail to see how, after having taken advantage of the favor granted, they can now refuse to comply with the stipulation imposed as a condition for the granting of such a favor. This view is inconsistent with our right to pass upon the hardship or the inequitable claim urged against the stipulation. All the facts were before the judge, and whatever our view might be in reference thereto, we would not be justified, after the railway company has accepted of the benefits, to absolve it from the obligations imposed by the judge. We think, therefore, that the order appealed from should be affirmed, with costs.

Van Brunt, P. J., concurs.