
    Charles S. Laney, App'lt, v. The Rochester Railway Company, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed November 13, 1894.)
    
    1. Appeal—Stay oe proceedings—Where made.
    An order to stay proceedings upon a judgment, during the pendency of an appeal to the court of appeals, may be made by a justice of the supreme court at chambers. e
    2. Same—Waiter—Stipulation.
    A stipulation that a temporary injunction should he vacated, the issues be referred and, if they he finally determined in favor of the plaintiff, the defendant should institute condemnation proceedings, does not preclude an appeal from the referee's determination.
    Appeal from an order denying a motion to vacate a chamber order staying proceedings.
    
      Quincy Van Voorhis, for app’lt; Charles >7 Bissell, for resp’t.
   Bradley, J.

The main purpose of the action is to restrain the defendant from constructing a railroad in Elm street, in front of plaintiff's premises, in the city of Rochester. In the outset of the action a temporary injunction was Obtained.' This was pursuant to stipulation of the parties, afterwards vacated; and the issues were tried before a referee, who directed judgment for the plaintiff, which was affirmed by the general term. Thereupon the defendant appealed to the court of appeals, and, upon the application of the defendant, an order was made by a justice of this court staying proceedings on the part of the plaintiff to enforce the injunction awarded by the judgment. The motion to vacate that order was denied by the order appealed from. The plaintiff’s counsel insists (1) that it was not within the jiower of a justice at chambers to make ex parte the order staying proceedings ; (2) that the defendant is precluded by the stipulation of the parties from taking an appeal to the court of appeals.

Au order to stay proceedings upon a judgment appealed from may be made by a judge out of court, and such stay may be operative during the- pendency of the appeal. Code Civ. Proc. § 775; Hull v. Hart, 27 Hun, 21. The judgment being in this court, no reason appears why the order may not have been granted by the judge who made it, although an appeal had been taken to the court of appeals. Judson v. Gray, 17 How. Pr. 289.

The other proposition is founded upon the stipulation of the' parties, made before the trial, by which it was stipulated that the temporary injunction should be vacated; that the issues be referred to a referee named ; that, if the issues be finally determined in favor of the plaintiff, the defendant should, within 30 days from such final determination, institute condemnation proceed-, ings ; and that the defendant should give bond conditioned that it would so institute such proceedings, and pay the amount of damages awarded in them. The reference was perfected, the bond given, and the trial had, as before mentioned. The view urged on the part of the plaintiff is that the issues were finally determined, within the meaning of the stipulation, when judgment was entered upon the report of the referee, and therefore the defendant was required to acquiesce in that judgment, and proceed to exercise the right of eminent domain. If that had been the mutual understanding or purpose of the parties, it could have been so expressed as to limit the determination to that which the referee should direct. It is a final judgment, as distinguished from an interlocutory one; and, until the appeal was taken, it was a final determination, and, if affirmed, it" w-ill remain such. But, when appeal is taken from a judgment, the issues are not deemed finally determined until a result of the review is reached. The controversy of the parties arising upon the issues continues on the review, and the determination of it finally by adjudication is that of the issues. It would seem to follow that the use of the word “issues” does not give to the stipulation the restricted meaning sought to be applied to it, and that the substantial import of it would have been no different if the word “ action ” in place of “issues” had been used. The intent of the parties in making the stipulation must be treated as that which its terms import. The order staying proceedings may be so dealt with by the court that it shall not become oppressive to the plaintiff, or prejudicial to his rights. If the defendant fail to proceed with reasonable diligence to permit the appeal to be heard and determined, the plaintiff may by order be relieved from it; and the court will, if occasion requires, direct that the defendant give such further security as may be deemed necessary for the protection of the plaintiff in his remedy for relief. These questions do not arise on this appeal.

The order should be affirmed.

All concur.  