Connolly v. Manhattan Railway Co.

Headnote

Appeal—Stay DtritiN» pendency.

Under Const. 1895, art. 6, § 9, providing that no unanimous decision of the appellate division of the supreme court that there is evidence supporting the finding of fact or a verdict not directed hy the court shall he re viewed hy the court of appeals, a stay will not he granted pending an appeal to the court of appeals from a judgment which has been unanimously affirmed by the appellate division.

Appeal from special term, New York county.

Actions by Ellen M. B. Connolly against the Manhattan Railway Company and the Metropolitan Elevated Railway Company, and by Mary A. Durup De Balaine against the same defendants. From ah order denying a motion by defendants for stay in each case pending an appeal to the court of appeals, defendants appeal.

The opinion of- Mr. Justice LAWRENCE at special term is as follows:

Motions are made in each of these cases for an order staying the operation of the injunction contained in the judgments therein pending an appeal to the court of appeals, and extending the time of the defendants to make the tenders and payments provided for by said judgments until such time as may be reasonable af ter the decision of the appeal which the defendants have taken to the court of appeals. The granting of such motions would be a matter of course, in ordinary cases. But in these casesit appears that each of the judgments after modification as to damages, were unanimously affirmed by the appellate division; and, inasmuch as the new constitution (article 6, sec. 9) provides that no unanimous decision of the appellate division of the supreme court that there is evidence supporting or tending to sustain

the finding of fact on a verdict not directed by the court shall be reviewed by the court of appeals, there is no necessity for a stay, because, upon the face of the papers, the ap-. peal must be fruitless. Motions denied, with costs.