
    AUGUSTA G. GENET, Appellant v. PRESIDENT, MANAGERS & COMPANY, OF THE DELAWARE & HUDSON CANAL COMPANY, Respondent.
    
      Injunction judgment, suspending operation of pending appeal.
    
    The final judgment in this case enjoined the defendant from doing certain things. Defendant appealed from the judgment to the general term, where it was affirmed and thereupon appealed to the Court of Appeals— on motion upon notice to the plaintiff, defendant obtained an order suspending, pending the appeal to the Court of Appeals, the operation of the judgment so far as it contained an injunction against the defendant upon certain conditions.
    
      Held, (1). That the court, by reason of its inherent power in respect of its own judgment, had power to stay proceedings upon the judgment, or that might be taken to enforce it. But (2). That it had no power so to suspend the operation of the judgment as to relieve the defendant from the duty of the obeying the judgment therein contained pending an appeal therefrom.
    Before Sedgwick, Ch. J., Freedman and Ingraham, JJ.
    
      Decided January 7, 1889.
    Appeal by the appellant from an order made at special term.
    The facts sufficiently appear in the opinion.
    
      George C. Genet, attorney and of counsel for appellant, on the questions considered in the' opinion, argued:—
    By the order appealed from the defendant has obtained a right, pending its own appeal to the court of appeals, to forbear mining plaintiff’s coal, and to continue to endanger its safety by omitting to shut off the water that it has brought down upon it, but which enables it to make a large profit elsewhere, and to continue to mine its own coal through works that should he devoted to mining plaintiff’s coal, and to continue to extend its illegal use of plaintiff’s land. No single judge can, on motion, lawfully reverse or modify a final judgment so rendered and duly entered. His power is limited to staying proceedings upon it, pending appeal in the cases, and in the manner provided in the statute, and in no other way. Judgments are sometimes suspended before entry by the judge who tries the cause, until the general term can pass on some difficult question of law, but not after judgment entered. The provisions are laid down by the Code Sections 1327 to 1331, and are § 1327, security to stay on judgment for money; § 1328, security to stay on judgment for delivery of personal property; § 1322, on judgment for a chattel; § 1330, on judgment directing a conveyance; § 1331, security on judgment for real property. This section provides, “If the appeal is taken from a judgment which entitles the respondent to the immediate possession of real property, or from a judgment or order directing the sale or delivery of possession of real property, it does not stay the execution of the judgment or order until the appellant gives a written undertaking that he will not while in possession of the property, commit or suffer to be committed any waste thereon, and that if the judgment or order is affirmed, or the appeal dismissed he will pay the value of the use and occupation.” This provision is the same as the provision of 2 E. S. 606, § 85, prior to the Code, and is the only provision of the statute that can in any way be construed into a provision affecting the mandatory or the prohibitory part of this judgment.
    The order appealed from does not conform in any respect to these provisions or to the general policy of the statute on the subject.
    
      Frank E. Smith, attorney and of counsel for respondent, on the questions considered in the opinion, argued:—
    
      The order appealed from- was within the power of the court. Section 1351 of the Code authorizes the court, on appeal to the general term, to “ stay the execution ” of the judgment appealed from. But as a judgment of injunction executes itself, a stay of proceedings upon such a judgment is ineffectual to relieve the party from the duty of immediate obedience to it. Sixth Avenue R. R. v. Gilbert El. R. R., 71 N. Y. 430. In order therefore to “ stay the execution ” of such a judgment an order must be made, which by arresting the operation of the judgment, shall prevent it from executing itself. The usual chancery practice in such cases is to make an order suspending the injunction pending the appeal. Daniel’s Ch. Practice (4th ed.), p. 1468-1470; Rule 93 of Equity Rules of Supreme Uourt of United States; Kerr on Injunctions, 32. But it will doubtless be argued that the authority conferred by § 1351 of the Code only extends to appeals from the special to the general term, and that on appeal to the court of appeals authority must be found in the provisions of §§ 1327 to 1332 relating to appeals to that court. It may be conceded that these particular sections do not in terms provide for arresting the operation of a judgment of injunction. Section 1310, which relates to appeals generally, provides that when an appeal is perfected, and the other acts performed, if any are "required to be done to stay execution, the appeal ipso facto “ stays all proceedings to enforce the judgment.” As regards a judgment of injunction there are no acts required to be done to stay execution. But since a judgment of injunction operates on the defendant without the aid of any proceeding to enforce it, the stay resulting from this section of the Code is not available. This section however, does illustrate the general purpose and intention of the legislature to permit a judgment of any kind to be superseded on appeal. Authority, then, to make the order in question must be found in the general powers of the court and these we think are ample for the purpose.
    
      In Granger v. Craig, 85 N. Y. 619, an order had been made staying proceedings in a foreclosure suit pending appeal to the court of appeals upon the execution of a certain specified undertaking which was not the undertaking required by § 1331 in order to make the appeal itself a supersedeas. The power of the court to make such an order was challenged. The court of appeals say: “ The Code does not abridge the power that the supreme court has always had over its own judgments, to stay proceedings on them for such time, and on such terms as to the court seem proper.” The power to suspend a decree exists inherently in every court of equity, and is freely exercised.
    In Sixth Avenue R. R. v. Gilbert El. R. R., 3 Abb. N. O. 53, an order was made by Judge Van Vorst staying proceedings upon the judgment of injunction which order was plainly intended to supersede the judgment pending the appeal, though the court of appeals in the same litigation held that, as the order merely stayed proceedings to enforce the judgment, it did not stay the execution of the judgment, because the judgment executed itself (71 N. Y. 430). In Amoskeag Co. v. Garner, reported in a note to 3 Abb. N. C. 53, Judge Barrett made an order suspending an injunction pending appeal. In Walford v. Walford, L. R. 3 Ch. App. 812, a decree awarding a perpetual injunction had been made, from which an appeal was taken, and a motion made to suspend the decree pending such appeal, which was granted, the court saying: “ The usual course is to stay proceedings pending an appeal only when the proceedings would cause irreparable injury to the appellant.” In Roskell v. Whitworth, 19 Weekly Report 804, an injunction had been awarded by final decree restraining defendant from operating a steam-hammer on the ground that it was a nuisance. A motion to suspend the decree pending appeal, so as to allow the hammer to be operated as before the decree, was denied by the Vice-chancellor but granted by the Justices of
    
      Appeal. James, L. J., saying : “ If there is a bona fide intention to take the opinion of the court upon it, it is not usual that things should remain otherwise than in statu guo.”
   By the Court.—Sedgwick, Ch. J.

The plaintiff had obtained in the action a final judgment, which with other provisions enjoined the defendant from using in a certain manner described in the judgment, appliances for the mining of coal, placed upon the plaintiff’s property, under an agreement in writing that had been made between the parties, and from depositing upon plaintiff’s land culm or refuse coal from a certain source. The defendant had appealed to the general term where the judgment was modified and affirmed. As affirmed it contained an injunction of the kind described.

Thereupon, the defendant made the motion upon which the order appealed from was granted. The moving papers contained an averment in the affidavit of the defendant’s attorney, “ that defendant intends to appeal to the court of appeals, from so much of said general term judgment as sustains said injunction.”

The order as granted was “ That the operation of the judgment, entered in the above entitled action, etc., so far as the same contains an injunction against the defendant, etc., etc., be suspended, pending appeal by defendant therefrom to the court of appeals, upon condition that, etc., and that it execute a bond to the plaintiff, with good and sufficient sureties in the penal sum of $25,000,” etc.

From the arguments of both learned counsel, it appears that the sections of the Code that refer to what .kind of order or undertaking will stay proceedings upon an appeal to the court of appeals, do not refer to a judgment like the one in this case, containing the injunction, excepting counsel for appellant while admitting, by way of concession, that although the operation of a mandatory injunction may perhaps be suspended, it must be upon condition of filing the undertaking described in section 1331. This section however refers to a judgment which entitles the respondent to the immediate possession of real property, or that directs the sale or delivery of possession of real property. The present judgment is not of a kind referred to in the section.

Although no section of the Code regulates or allows the granting of an order like the one appealed from, I am of opinion, that the court might grant a proper order on the general subject by reason of its inherent power in respect of its own judgment. An order would not be proper if the power of the court were limited as to it specifically. The limitation may be found in the obligation on the court to give full effect to other provisions of the law or in the practice of the court on the subject. In a case like the present, the court has the power that the court of chancery had.

The phrase of the order “ suspending the operation of the judgment so far,” etc., seems a little doubtful in meaning. If it should be considered to mean only staying " the proceedings upon the judgment or that might be taken to enforce the judgment, it would seem that the court might competently grant such an order. By the Code, section 1241, a judgment of the present kind may be enforced by punishment for disobeying it. In Sixth Ave. R. R. v. Gilbert E. R. R., 71 N. Y. 430, one question discussed but not determined was, whether proceedings to punish for contempt was a proceeding in an action. If such proceedings were not in the action but were special, that would be a reason for holding, that an order made in them might be taken by appeal to the court of appeals. It would not be a reason for saying that such proceedings would not be stayed by an order granting a stay of proceedings, for such an order stays all proceedings to enforce a judgment, and one method of enforcing a judgment containing an injunction, is by proceedings to punish for disobedience of it, even if they be in their nature special proceedings.

But while this may be, such a stay would not justify a disobedience of the injunction, for in the nature of things, a stay of the plaintiff’s proceedings do not refer to the acts of the defendant, and if during the stay the defendant disobey the injunction, the order of stay would not be an answer to proceedings to punish made after the stay is dissolved. Sixth Ave. R. R. Co. v. Gilbert Elevated R. R., 71 N. Y 430. Therefore if the order appealed from means not a stay of proceedings to enforce the judgment but a release of the defendant from the- duty of obeying it for the time and until the appeal is decided, it is necessary to determine whether the court has the power to make such order. Both counsel have argued the appeal as if the order had the meaning last referred to.

A final judgment fixes, absolutely and unconditionally, the rights of the parties. By the law, as it stands under the Code, no .court, except upon an appeal, can in a proceeding in the action reverse or modify the judgment. There is no reason for excepting from this rule, the time when the judgment by express provision in it or by its implication is to go into operation. The judgment adjudicates finally, that it is the legal duty of the defendant, then and thenceforward, to refrain from" the acts that are injurious to the plaintiff. To order, contrary to the terms of the judgment that the injunction should not operate as between the parties until the lapse of a month, or of a year, would at least modify the judgment. To permit such a delay and such an impairment of the plaintiff’s enjoyment of her rights, would take from her a part of what has been adjudged finally to be her right and without remedy, excepting another action upon the undertaking. For it must be considered that if the operation of the judgment is suspended, there can be no remedy, by proceedings, to punish a disobedience, taken after an affirmance, should the judgment be affirmed. The legislature in the Code has allowed this to be done, in certain cases, but not in a case like the present. In my judgment there was no power to release the defendant from its obligation, under the judgment for a time, and this would be the result of suspending the operation of the injunction.

This conclusion is sanctioned by the observation of the chancellor in Graves v. McGuire, 6 Paige 381, which was decided under the provisions of the Revised Statutes. These provisions do not vary from those of the Code, that refer to the same matter, so as to make the observations inapplicable here. The chancellor said: “ If the order appealed from was an order granting an injunction, the same is not dissolved by the appeal, so as to authorize a party to proceed in violation of such an injunction pending • such an appeal, although the present or immediate power of the court below to punish the party for a breach of the injunction pending the appeal, would perhaps be suspended until after such appeal was disposed of by the appellate court. 2 R. S. 607, § 89. The reference here to an appeal itself staying proceedings means an appeal in connection with a certificate of probable cause, obtained under Chancery Rule, 116. The case cited refers affirmatively only to the powers given by the Rev. Stat. and the Chancery Rules. There was no claim that the court could make any order that would affect the duty of the defendant, under an injunction in a final judgment. I cannot find that the court of chancery of this state, has made, at any time, such an order.

The order should provide for the modification of the order appealed from in accordance with the views expressed without costs.

Freedman and Ingraham, JJ., concurred.  