
    Josephine Kager, Appellant, v. Charles Brenneman, Individually and as Surviving Executor, etc., of Frederick Leonhard, Deceased, and Elizabeth Brenneman, Respondents, and Edward Leonhard and Others, Appellants.
    
      Stay pending an appeal to the Court of Appeals —judgment of the Appellate Dims - ion directing the delivery of a deed, stayed on what conditions.
    
    The Special Term of the Supreme Court has power to stay, pending an appeal td the Court of Appeals, the execution of a judgment of the Appellate Division directing the defendants to execute and deliver a conveyance of their interest in certain premises described in the complaint, but such stay should be ' ináde conditional upon the defendants taking the appeal within the time prescribed by law, and delivering the deed required by the j udgment to the clerk of the court to be held by him pending the determination of the appeal and to be disposed of according to the event thereof.
    Appeal by the plaintiff, Josephine Eager, and by the defendants, Edward Leonhard and others, from an order of the Supreme Court, made at the New York Special Term and entered, in the office of the clerk of the county of New York on the 16th day of • day of April, 1900, staying the execution of a judgment.
    
      Henry A. Forster, for the appellants.
    
      Paul Fuller, for the respondents.
   McLaughlin, J. :

Upon a former appeal from a judgment entered in this action, Charles Brenneman and Elizabeth Brenneman, liis wife, were directed by this court to execute and deliver to the appellants a good and sufficient conveyance, in fee, with covenants against their own acts, of an interest in certain, premises described in the complaint, within a given time after service upon them, or their attorneys, of a notice of the entry, of judgment. (47 App. Div.. 63.) Judgment was entered and notice given, and the appellants, desiring to appeal to the Court of Appeals from so much of the judgment as directed "the giving of the deed of conveyance, applied to the Special Term for a stay pending the appeal. The motion was granted on condition that an additional bond in the sum of $8,000 be given, and from such order this appeal is taken.

It cannot be seriously questioned but that the court had the power to grant the stay pending, an appeal to the Court of Appeals." The court always has power, in the interest of justice, to control its judgments, or to suspend the operation of them during proceedings taken to review their validity. (Genet v. President,, etc., D. & H. C. Co., 113 N. Y. 475.) Here it would seem as if the' discretion were properly exercised.. The appeal and the determination of it would serve little or no purpose if Brenneman and wife were compelled, in advance of the appeal, to do the act which substantially satisfies the judgment. We are of the opinion, however, that the order is too broad. It grants an unlimited stay to the enforcement of the judgment. No provision is contained in it for the terminatian of the stay if an appeal be not taken, or if the judgment on appeal be affirmed. We are also of the opinion that provision should be made which, would protect the respondents in case the judgment should be affirmed, and the appellants or either of them, -should die pending the appeal.

The order should, therefore, be modified by inserting therein a provision to the effect that if the Brennemans appeal from the judgment within the- time provided by law in which an appeal may be taken, the judgment and all proceedings thereunder be stayed pending such appeal and until the same be finally determined, on -condition, however, that Charles Brenneman and Elizabeth Bre'nneman, his wife, in addition to giving the bond named, execute a deed of conveyance as directed in our former decision and deliver the same to the clerk of the court, to be by him held pending such appeal, with directions in case the judgment appealed from be affirmed, that he then deliver the same- to the respondents on the appeal, or their attorneys; and that if the judgment appealed from be reversed, that then such conveyance be returned to the appellants, or their attorneys; and as so modified that the order appealed from- be affirmed, without costs to either party.

■ Patterson, Ingraham and Hatch, JJ., concurred.

Order modified as directed in opinion and as modified affirmed, without costs to either party.  