
    Pocantico Water Works Co., Plaintiff, v. Joseph M. Low, et al., Defendants.
    (Supreme Court, New York Special Term,
    August, 1897.)
    Where a final judgment vacates a temporary injunction, the plaintiff cannot procure a stay, pending its appeal.
    •Where a final judgment, rendered in an 'action brought to restrain a trustee from foreclosing, a mortgage, vacates a. preliminary in- • junction and- denies the plaintiff any right to an injunction, the plaintiff cannot, pending" its appeal from the judgment, procure a . v stay “ of all proceedings so as- to prevent the foreclosure of the mortgage,” as the dismissal of the complaint is res adjudicata and the preliminary injunction, provisional in its character,, is- dissolved by and merged in the final judgment and cannot be revived in any manner whatever. -
    Motion for a stay of proceedings pending am appeal.
    
      Action of foreclosure.
    F. Bien, for plaintiff.
    Turner, McClure & Rolston, for defendant, the Farmers’ Loan & Trust Company.
   Russell, J.

The plaintiff moves for a stay pending an appeal from a judgment herein “ of all proceedings so as to prevent the foreclosure of the mortgage held by the defendant, Fanners’,Loan & Trust Company.”

That judgment follows a decision of the Special Term dismissing the complaint in this action which sought to restrain the Farmers’ Loan & Trust Company from foreclosing a mortgage for $300,000 and awarded costs against the plaintiff.

The stay of the judgment would amount in law to nothing more per se than the stay of the collection of the costs included in the judgment. As to that sum the plaintiff can readily give an undertaking to prevent the collection pending the appeal.

If, however, by the motion for a stay and the general request for relief usually made in notices of motion, the plaintiff desires this com’t to make some order to prevent the Farmers’ Loan cfc Trust Company from foreclosing the mortgage while the appeal from the judgment in this action is pending, the plaintiff asks that which the court cannot give. The dismissaFof the complaint has no operative force except as res adjudicata, and I know of no practice by which that effect may be held in suspense by an order made upon motion, no provision therefor being included in the original judgment.

Aor do I think there is authority for granting an injunction pending appeal which is denied by the judgment entered upon a trial. Any preliminary injunction granted during the pendency of the action is dissolved by final judgment dismissing the complaint, and no provision of law exists for reviving it after trial and judgment, until that judgment is set aside. The interlocutory injunction is provisional in its character and the provisions of the final judgment take its place. Jackson v. Bunnell, 113 N. Y. 216; Spears v. Mathews, 66 id. 127.

If this application were made in an action of foreclosure brought by the Farmers’ Loan & Trust Company, the general power of the court to stay proceedings in an action might be invoked; but & request in one action to stay proceedings in .another action is in ■the nature of an injunction which cannot be granted when final judgment denies the right to' any injunction whatever. Motion denied.

Motion denied.  