
    In the Matter of the Application of The Manhattan Railway Company, Pl’ff, v. John F. Stroub, Def't.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 30, 1893.)
    
    Condemnation pbooeedings—Stay on appeal, when not allowed.
    Where an appeal is taken from a judgment and order confirming award in proceedings under the “ Condemnation Act,” and the judgment is in favor of one who holds the fee to certain property and against one who held the same under a lease from a former owner, the proceedings will not be stayed pending appeal where the defendant tenders no bond for the damages resulting from such stay, and when it does not appear that plaintiff is not entirely able to make good all damages assessed.
    Application for stay of proceedings pending appeal,
    
      Davies, Short & Townsend for pl’ff; Edward C. Perkins, for def't.
   Follett, J.

In February, 1891, the plaintiff acquired the fee of the property affected by these proceedings. The defendant is in possession under a lease granted by a former owner for a term which expires May, 1897. These proceedings were begun June 23. 1892, and the defendant'filed and served his answer, as permitted by § 3365 of the Code of Civil Procedure. The issue so joined was tried at a special term, and an interlocutory judgment rendered adjudicating that the plaintiff had the right to acquire the land and easement described in the petition. Subsequently commissioners were appointed to appraise the damages sustained by the defendant, and they awarded $2,720. On the 5th of June, 1893, their award was confirmed by a special term, and an order of confirmation was duly entered. The defendant refused to receive the award, and it has been deposited, pursuant to the order, with the chamberlain of the city. The defendant has appealed to the general term from the interlocutory judgment and from all the orders granted in the proceedings, and now applies for a stay of all proceedings on the part of the plaintiff until the appeal is decided.

The view we take of the rights of these litigants renders it unnecessary to consider the question, much debated by the counsel for the respective parties, whether, under § 3375, the court has power to stay the plaintiff from entering into possession of the property condemned. The following is a copy of the section referred to:

“Appeal may be taken to the general term of the supreme court from the final order within the time provided for appeals from orders by title 4 of chapter 12 of this act; and all the provisions of such chapter relating to appeals to the general term from orders of the special term shall apply to such appeals. Such appeal will bring up for review all the proceedings subsequent to the judgment, but the judgment and proceedings antecedent thereto may be reviewed on such appeal, if the appellant states in his notice that the same will be brought up for review, and exceptions shall have been filed to the decision of the court or the referee, and a case, or a case and exceptions, shall have been made, settled and allowed, as required by the provisions of this act for the review of the trial of actions in the supreme court without a jury. The proceedings of the plaintiff shall not be stayed upon such an appeal, except by order of the court,, upon notice to him; and the appeal shall not affect his possession • of the property taken, and the appeal of a defendant shall not be heard except on his stipulation not to disturb such possession. ”

It will be observed that by this section, and also by § 3376, the proceedings on an appeal from a judgment are to be governed by the provisions of title 4 of chapter 12 of the Code of Civil Procedure, except in so far as they are modified by the provisions of chapter 23, of the condemnation act. The section quoted provides : “ The proceedings of the plaintiff shall not be stayed upon such an appeal, except by order of the court, upon notice to him.” This cuts off the absolute right of the appellant to a stay of proceedings pending the appeal, under § 1352, by simply giving an undertaking. The appellant’s right to a stay pending appeal is not an absolute one, but whether it shall be granted or refused rests in the discretion of the court, and must be determined by the circumstances of each case. In this case the plaintiff owns the fee of the land, the defendant having only a leasehold interest, of short duration. The right of the plaintiff to acquire the property has been determined "by a judgment, and the amount awarded has been deposited with the chamberlain. The record shows that the plaintiff has expended about $250,000 on the improvement which the acquisition of this property is necessary to make available. The defendant does not tender a bond to pay the damages which will be caused by a stay in case his appeal shall be finally determined against him, and it may be doubtful whether an undertaking indemnifying against such consequences could be procured It is not asserted that the plaintiff is not abundantly able to respond in any sum by which the damages may be increased in case a rehearing is ordered. The Code provides that any additional sum awarded shall be a lien on the land taken, which, with the sum deposited, would seem to be an ample protection to defendant. If it shall be finally determined that the plaintiff is not entitled to acquire the property, it is liable for the damages, and, as before stated, it is not asserted that it is not entirely able to 1 make the damages good. Without" discussing or determining the question of power, we think the application must be denied, with ten dollars costs. ,

O’Brien" and Parker, JJ., concur.  