
    Anna H. Carpenter, Respondent, v. Hattie S. Fisher, Appellant.
    
      After a dismissal of the complaint the Special Term cannot continue an injunction pending an appeal.
    
    Upon the dismissal of the complaint, on the trial of an action in which a temporary injunction has been obtained by the plaintiff, the Special Term has no power to suspend the operation of the judgment and continue'the injunction, upon condition that certain security is given by the plaintiff. In such a case the plaintiff is only entitled to the stay of execution to be obtained by a compliance with sections 1326 and 1827 of the Code of Civil Procedure.
    
      Semble, that where the plaintiff has on the trial secured an injunction the court may suspend its operation, but where the- injunction has been dissolved and denied on the trial the court cannot revive it, pending an appeal.
    Appeal by the defendant, Hattie S. Fisher, from an order of the Supreme Court, made at the Monroe Special Term and entered in the office of the clerk of the county of Monroe on the 6.th day of February, 1897, suspending the operation of the judgment entered in the action, and reviving an injunction granted therein which had been vacated, until after the determination of the plaintiff’s appeal from said judgment to the Court of Appeals.
    The action was brought to restrain the defendant from closing an alley or erecting any fence or obstruction thereto by which the plaintiff would be prevented from using this alley. At the commencement of the action a temporary injunction was granted restraining the defendant, as demanded in the complaint, from erecting a fence upon the alley or interfering with the use of the plaintiff therein. The action was tried at. an Equity Term in Monroe county in September, 1895; the trial court dismissed the plaintiff’s complaint with a conclusion of law : “ That the defendant is entitled to judgment dismissing the plaintiff’s complaint and vacating the injunction heretofore granted in this action, with costs.”
    This judgment was duly entered and the plaintiff appealed to the Appellate'Division of the ■ Supreme Court of the fourth department, where the judgment of tlie trial court was affirmed and judgment upon such appeal' duly perfected ; whereupon the plaintiff appealed to the Court of Appeals, giving the usual undertaking to perfect the appeal. Upon application to the Special Term of Monroe county after such appeal the order appealed from was made, and after reciting that a motion had been made upon the return of an order to show cause for the suspension of the operation of the judgment entered, upon the affirmance in the appellate court, describing it, it proceeds as follows: “ It is ordered that said motion be, and the same is hereby granted, and that the operation of the judgment entered herein, on the 28tli day of December, 1896, be, and the- same is hereby suspended until the final determination of this action in the Court of Appeals, and said-injunction remain in full force and effect until such final determination, upon condition that the plaintiff execute and deliver to the defendant a bond with two sureties to be approved by a justice of this court, in the penal sum of five hundred dollars, conditioned for the payment of any damages to the defendant in case of affirmance, which the defendant may sustain by reason of the continued use by the plaintiff of the premises described in the complaint; said bond to be given within ten days of the entry of this order, and in the event that the plaintiff fails or refuses to give such bond, then this- motion is denied, with ten dollars costs, to be paid by the plaintiff to the defendant.”
    
      W. A. Sutherlcmd, for the appellant.
    
      G. 1). Kiehel, for the respondent.
   Ward, J.:

The learned judge who granted the order appealed from made a brief memorandum of his decision and quoted Genet v. President, etc., D. & H. C. Co. (113 N. Y. 472) as authority for the position he assumed. In that case the Special Term óf the New York Superior Court made an order suspending the operation of a judgment during the' pendency of the appeal to the Court of Appeals, on condition of executing a bond to pay such damages as the plaintiff might sustain by reason of the defendant continuing, pending the appeal,, to do the acts, or any of them, prohibited by the judgment appealed from.

The judgment appealed from restrained the defendant from using a shaft, breaker and structures ere'cted on the plaintiff’s lands, in mining coal from lands of the defendant, contiguous to the lands of the plaintiff, except under certain limitations specified, and also from depositing on the surface of- th.e plaintiff’s lands culm from coal mined from other lands than those of the plaintiff. The court in that case held that, as the Special Term of the Superior Court had the same power as regarded that action as the Special Term of the Supreme Court, there.was an inherent power in that court to suspend the operations of a judgment pending an appeal, and that that was a case for a proper exercise of that power, two of the judges, not voting.

Observe that this was not an attempt to revive a dead injunction or to give relief by way of injunction pending the appeal, but it was simply staying the operation of an injunction which had become permanent in the judgment in the plaintiff’s favor*.

In Jackson v. Bunnell et al. (113 N. Y. 216) the same court that decided the case last, cited (all the judges concurring) passed upon a case more like the one at bar, where there was an appeal from an order of the General Term of the Court of Common Pleas of New York, continuing and making permanent a preliminary injunction. The final judgment in the action did not award an injunction, and Finch, J., lays down the law upon the subject as follows:

“ On these facts (after reciting them) we are met by the question whether a final and permanent injunction can in any case be granted on motion and by a mere order when no action between the parties is pending, but both actions covering the controversy have gone to final judgment (the preliminary injunction restrained the enforcement of another action).
“ Under the law of this State there is no authority for such an order. The Code has abolished the writ of injunction and substituted as a provisional, remedy an" injunction granted by order. (Code of Civil Proc. § 602.) It can be awarded only in the cases and in the manner specifically prescribed, and is impliedly forbidden in any others. (Fellows v. Heermans, 13 Abb. Pr. [N. S.] 9.) Even where after judgment there has been an appeal, the previous temporary injunction is abrogated by the judgment, and any new or further restraints must be contained in the final judgment or order or cannot be granted at all. (Gardner v. Gardner, 87 N. Y. 18; People ex rel. Morris v. Randall, 73 id. 416; Spears v. Mathews, 66 id. 128.) The rule is easily justified on principle. An injunction by order is a provisional remedy and temporary in its character. It assumes a pending litigation in which all questions are to be settled.by a judgment and operates only until that judgment is rendered. If, by that, a permanent injunction is. granted, the temporary one is, of- course, ended and equally so if a permanent injunction is in the end denied.”

In Fellows v. Heermans (supra) the question before us was squarely up. A temporary injunction had been obtained, restraining, the defendant from proceeding under certain instruments.which the plaintiff claimed were executed.under mistake and undue influence and which instruments provided that the grantee should sell and convey certain lands. The plaintiff’s complaint was dismissed upon the trial and the plaintiff appealed to the General Term and made a motion at Special Term for a renewal and' continuance of the injunction during the pendency of the appeal. The Special Term made such an order, which was affirmed at the General Term, but was reversed by the Court of. Appeals upon the ground that the Supreme Court had no power to revive or continue a temporary injunction obtained by the plaintiff after judgment against him in the action, pending his appeal from the judgment.

In Spears v. Mathews (supra) the same question was again up in the Court of Appeals, and the court in that case held that the court had no power after judgment against the plaintiff in an action,, and pending an appeal by him therefrom, to grant an injunction or-to revive or continue a temporary injunction.

The distinction which the cases make is evident. Where the plaintiff has obtained the injunction which the action is brought to secure, the court, on appeal, in a proper case,, may' suspend its. operation ; but where the plaintiff has been. defeated in his action and in maintaining his injunction, and it has been dissolved, there is. no power in the court to revive it pending the appeal.

The judgment in this case denied the relief that the plaintiff sought, and gave costs to the defendant. Upon appeal from that judgment, and on giving the proper undertakings provided by sections 1326 and 1327 of the Code of Civil Procedure, the plaintiff is entitled to a .stay of execution pending'the appeal; that is the only stay, pending the appeal which the plaintiff can have in this action.

The order appealed from should be reversed, with ten dollars costs and the disbursements of the appeal.

All concurred.

Order -reversed, with ten dollars costs and disbursements.  