
    Alexander Potter and William Tuteur, Respondents, v. Clinton L. Rossiter, Toluca Electric Light and Power Company and Others, Appellants.
    (No. 3.)
    First Department,
    November, 1905.
    Stay of proceedings on interlocutory judgment for money and delivery of stock.
    Where an interlocutory judgment authorizes a money judgment, the plaintiffs are not entitled to security as a condition of a stay of proceedings, for they are not yet entitled.to enforce such part of the interlocutory judgment.
    As to that part of an interlocutory judgment requiring the delivery of stock, the defendant is entitled to a stay on condition that the stock be transferred to the names of the plaintiffs upon the proper books so that they may vote thereon.
    Appeal by the defendants, Clinton L. Rossiter 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' 28th day of August, 1905, denying the defendants’ motion to stay the ..plaintiffs’ proceedings under an interlocutory judgment.
    
      William W. Goodrich, for the appellants.
    
      J. Aspinwall Hodge, for the respondents.
   Laughlin, J.:

The motion for a stay of proceedings was brought on and heard with the plaintiffs’ motion to punish the defendant company for contempt considered in the opinion delivered on the appeal argued and decided herewith (109 App. Div. 32). We are of opinion that the motion should have been granted. The terms offered by the defendants in their moving papers were more favorable to the plaintiffs than can be required. The defendants offered to give security for the payment of the money judgment authorized by the interlocutory judgment in case it should be affirmed on appeal. Inasmuch as the plaintiffs are not now entitled to enforce that part of the judgment they are not at present entitled to security as a condition of their not enforcing it. The plaintiffs were, however, entitled to enforce the judgment for the delivery of the stock and bonds and, as has been suggested in the opinion delivered on the appeal by the defendant company, the defendant should be required, as a condition of staying the enforcement of that part of the judgment, to consent that the stock be transferred to the names of the plaintiffs upon the books of the company and that they be permitted to vote thereon pending the final determination of any appeal that may.be taken from-the final judgment herein.

The order should, therefore, be reversed, with ten dollars costs and disbursements, and motion for a stay granted, without costs, upon condition that within ten days after the entiy of the order and service thereof the defendant' corporation cause the stock to be transferred to the names of the plaintiffs upon the- appropriate books and that the plaintiffs be permitted to vote thereon until after the determination of the appeal from the final judgment, if one be taken, with like effect as if they had actual possession, of the stock.

O’Brien, P. J.; Patterson and McLaughlin, JJ., concurred; Ingraham, J., dissented.

Order reversed, with ten dollars costs and disbursements, and' motion for stay granted, without costs, upon the conditions stated in opinion,  