p. 520ANTHONY J. DREXEL and Others, Respondents, v. GEORGE ST. AMANT, Appellant, Impleaded with JOSEPH M. PEASE and Others.Headnote
Stay of proceedings on a reference, pending an appeal from an interlocutory judg ment— the undertaking should cover the loss, sustained by reason of the lower interest received on the money involved, pending the appeal.In this action, in which an attachment was issued and levied upon property, an interlocutory judgment was entered, which involved the question as to the ownership of the property attached, and sustained the right of the defendant thereto; under which judgment a reference was ordered. An appeal was taken from the judgment and a stay of proceedings on the reference was granted.
Held, that it was proper that the undertaking given upon such appeal should provide for the payment of the difference between the rate of interest which would he paid ky the trust company, in which the proceeds of sale of the attached property were deposited, and the legal interest.
Appeal from an order made at the New York Special Term, staying proceedings on a reference ordered by the interlocutory judgment in this action.
The affidavits used on the motion showed that the respondents procured an attachment and a judgment against the defendant Pease, and levied upon certain property which the appellant St. Amant claimed to own and which he claimed had been sent to Pease as his agent, with instructions to Pease to sell it. An interlocutory judgment was recovered sustaining the claim of the appellant St. Amant, and ordering a reference for the determination of certain details. The funds in question, which were claimed by St. Amant, were deposited in a trust company at a low rate of interest, involving an annual loss as com. pared with legal interest amounting to some $600. The action has been pending some four years.
Oliver J. Wells, for the appellant.
Horace E. Demvng, for the Mechanics’ National Bank, respondent.
Oleott,Mestre <& Gonzales, for the National City Bank, respondent.
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
p. 521position, 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 given to pay the difference between the rate of interest paid by the trust company and legal interest on the judgment.
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 for 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.
Present — YaN BbüNt, P. J., Baetlett and Macombee, JJ.
Order modified as directed in opinion, without costs.