
    Matter of the Application of the Manhattan Railway Co. et al., Plaintiffs, V. Christina O’Sullivan et al., Defendants.
    (Supreme Court, New York Special Term,
    February, 1896.)
    Stay — Condemnation proceedings — Appeal from order «setting aside award.
    An order; setting aside an award of commissioners in condemnation' proceedings is one affecting a substantial right, and the court has power in such a case to stay the proceedings pending an appeal from "such order.
    Motion for stay of proceedings.
    Evarts, Choate & Beaman,' for motion.
    Davies, Short & Townsend, opposed.
   Lawrence, J.

This is a motion for a stay on an appeal from an order of the Special Term setting aside the award of commissioners. The order appealed from awarded to the defendants $75,000. That order has been set aside and new commissioners appointed in the proceeding. The trial before the old commissioners occupied several months and involved large legal expenses. It is claimed on the part of the railway company that the court has no power to grant'such a stay, for the reason that the order is not a final, but an interlocutory order. I am of the opinion that it is within my power to grant a stay under the general provisions of section 1347 of the Code of Civil ■ Procedure. The order affects a substantial right, and it would seem to be a great hardship to compel the property owners to go on with another proceeding, before a new set of commissioners, before having the question determined whether the order setting aside an award for $75,000 was or was not erroneous. See also § 3382, Code Civ. Pro. Motion granted upon condition that the appellants stipulate to argue the appeal before the Appellate Division at the March term and give an undertaking to pay all costs and damages not exceeding the sum of $500.

Ordered accordingly.  