
    BERNARD BRADY, Appellant, v. THE MAYOR, ETC., OF THE CITY OF NEW YORK, Respondent.
    
      Trial—Stay of pending appeal to general term in another action.
    
    Before Sedgwick, Ch. J., and O’Gokman, J.
    
      Decided May 6, 1889.
    Appeal from order staying proceedings.
    This action is brought to recover a certain sum of money alleged to be due the plaintiff, as assignee of one John Brady, under a contract made between said John Brady and the city of New York for regulating and grading Ninety-fifth street. Previous to the commencement of this action twp judgments had been recovered against this defendant upon the same contract, one by John Brady and the other by Bernard Brady, his assignee. Before the action hereinafter mentioned brought by this defendant, the Laflin and Rand Powder Company and Henry Judson Morris, each claiming an interest in any moneys payable under said contract by virtue of assignments, had commenced actions against this defendant. Thereupon this defendant commenced an action in equity against this plaintiff, John Brady, the Laflin and Rand Powder Company and Henry Judson Morris, making in the complaint various allegations of fraud in procuring the contract, and the said two judgments, and praying that the defendant be ' restrained from offering in evidence the two judgments hereinbefore mentioned and from prosecuting the present action ; also, that said judgments be reviewed, vacated and set aside ; that the contract be declared void, and any moneys paid by the city in excess of the reasonable value of said work be recovered. At the commencement- of said action an order of injunction was granted by this court restraining the prosecution of this action and •-two actions in which the defendant, the Laflin and Rand Powder Company and Henry Judson Morris were, respectively, plaintiffs. The several defendants to that action demurred to the complaint. The demurrers were sustained at special term, and orders and interlocutory judgments sustaining them were entered. Thereupon the defendant in this action moved for an order staying it and all proceedings in it pending, and until the final determination of the said action brought by the defendant herein. Pending this motion, it appealed to the general term from said interlocutory judgment. The motion was granted at special term upon defendant making a stipulation as to the argument of the appeal. From the order entered on the motion plaintiff appealed to the general term.
    
      L. Laflin Kellogg, attorney and of cot.nse_, _or appellant, argued :—
    I. The judge at chambers had no power to grant the order staying proceedings in this action. Spears v. Matthews, 66 N. Y. 128; Fellows v. Heermans, 13 Abb. N. S. 1; Emmons v. Campbell, 22 Hun, 582.
    II. If it were a matter of discretion, it should not be exercised in this or in any other case. First— Because it grants a provisional remedy where a judge of the same court, after full hearing upon all the facts, has denied the right to that provisional remedy. Second—Because it permits one judge to reverse the ruling of another judge of the same court, thus giving him powers which are only accorded to an appellate court. Third—Because the exercise of such a right would render it entirely useless for a person to move to vacate a temporary injunction if upon its vacation another judge could immediately reinstate it upon the same facts. Fourth—Because all the evidence, as appears upon the different appeals herein, shows that there was not the slightest justification for ever granting any injunction.
    III. It was certainly error in the judge at special term to grant a stay of proceedings until the final determination of the action. This order, in effect, says that, even if the general term of this court find against the city both upon the demurrer and upon the injunction, even in that case, notwithstanding the judgment of the appellate court, the stay shall be continued until the Court of Appeals has heard the case. This right should be exercised either, first, by the general term, or, second, after the general term had decided the case, or third, after the city had manifested an intention to or had appealed to the Court of Appeals.
    
      Henry R. Beekman, counsel to the corporation, and David J. Dean and Arthur H. Masten of counsel, for respondent, argued:—
    I. The books show numerous instances where similar orders have been made under analogous circumstances. Franklin v. Catlin, 43 Super. Ct. 138; Matthews v. Shaffer, 19 Week. Dig. 456; Brown v. May, 17 Abb. N. C. 205; Prems v. Smith, 10 Abb. N. S. 90.
    II. The order was a discretionary one, and will not be disturbed unless the court below improperly exercised its discretion. Peo. v. Northern Railroad Company, 53 Barb. 98 (affirmed 42 N. Y. 217; Schmidt Exr. v. Levy, et al., 66 Barb. 496.
    ITT, An entirely different principle was involved in Fellows v. Heermans, 13 Abb. N. S. 1. The decision was based npon the theory that the Code, by providing for an injunction in an action before judgment, impliedly excluded an injunction after judgment, and was expressly limited to the case of a judgment in the same action. Spears v. Matthews, 66 N. Y. 128; Emmons v. Campbell, 22 Hun, 582, etc., were decided upon the authority of Fellows v. Heermans.
   Bt the Court.—Sedgwick, Ch. J.

Under the circumstances of the case, I am of opinion that it was within the power of the court below to postpone the trial for the purpose of gaining the benefit of a decision at general term in the case of the Mayor, etc., against the present plaintiff and others. The order stayed proceedings generally, but the proceeding aimed at was the trial. I think, however, that there should not have been a stay until the final determination of the action.

The order should be modified and affirmed without costs.

O’Gorman, J., concurred.  