
    George Sponenburgh, Plaintiff, v. The City of Gloversville, Defendant.
    (Supreme Court, Fulton Special Term,
    February, 1904.)
    Judgment—Power of the court to suspend operation of injunctive' provisions.
    The Supreme Court has always had power, in its discretion, temporarily to suspend the operation of its judgments or stay proceedings upon them for such time and on such terms as the court deems proper.
    The judgment, in an action for damages to the plaintiff’s farm occasioned by the pollution of the waters of a creek into which a city discharged its sewage and which was in turn discharged on the farm,- after directing the city so to arrange its sewage system as not to pollute the creek and injure the farm or cause offensive odors, suspended operation of the mandatory and injunctive relief for a period fixed and also gave the city leave to apply at' Special Term for a further suspension for such further reasonable time as might be necessary to obtain appropriate legislation or establish a different sewage system. After obtaining one suspension for one year the city applied for a second extension of one year.
    Held, that the court had power to grant it for sufficient reasons and that it was not an amendment of the judgment changing the substantial rights of the parties but was only a regulation of the manner in which the rights fixed by the judgment were to- be enforced.
    
      Application by the defendant for an order suspending the operation of the injunctive provisions contained in the judgment entered in favor of the plaintiff.
    Wm. A. McDonald, for motion.
    M. D. Murray (A. J. Nellis, of counsel), opposed.
   -Spences, J.

This is an application for an order suspending the operation of certain injunctive provisions contained in the judgment herein. Eighteen other motions are made in as many other actions, and, as the cases are substantially alike, the decision in one will serve for all.

This action was brought to recover damages to the plaintiff’s farm occasioned by the pollution of the waters of the Oayadutta creek by the discharging of the defendant’s public sewage therein. It appeared upon the trial that a large number of leather dressing establishments, and the city of Johnstown also, discharged their sewage and other refuse into said stream, and the court by its judgment determined ‘that the damage resulting from the pollution was fifteen dollars a year, imposing one-third thereof upon the defendant as its share. The judgment also directed the defendant to so arrange its system of sewers and drains that none of the polluted matters therefrom should be discharged into said creek so as to effect the lands of the plaintiff for farming, dairying and domestic purposes, or cause offensive or unwholesome odors. It contained a further provision, as follows: “The operation of said injunction shall be and is suspended until the 29th day of Jan., 1903, and the defendant may have leave to apply to this court at Special Term to have the operation of said injunction further suspended for such further reasonable time as may seem necessary for the obtaining of appropriate legislation or the establishing of a different system of sewage for the defendant city.”

Thereafter, the defendant moved at Special Term under the provisions of the judgment, and this court, on the 14th day of February, 1903, made an order, as follows: “ The operation of said injunction be and the same hereby is further suspended for one year until the 29th day of Jan., 1904.” The term of suspension so granted having nearly expired, the defendant makes this application for an order extending the same.

I have examined with care the moving and opposing affidavits, and am satisfied that good and sufficient reasons have been shown for an extension of the time mentioned, provided the court has the power to grant the same.

The plaintiff contends that the court has not the power; that the judgment by its terms provides for but one extension of the period of suspension, which has already been granted, and that another suspension would constitute an amendment of the judgment and change the substantial rights of the parties as established thereby.

If to extend the time would work such a result, it may be admitted at the outset that the court has not the power. Heath v. N. Y. B. L. B. Co., 146 N. Y. 260; Kamp v. Kamp, 59 id. 212; Stannard v. Hubbell, 123 id. 520.

I am of the opinion, however, that the granting of the extension asked for will not work such a result, but serves only to regulate the manner in which the rights fixed by the judgment shall be enforced. This court has always had power in its discretion to temporarily suspend the operation of its judgments, to correct mistakes in them, to vacate them for irregularity, or to stay proceedings on them for such time and on such terms as to the court may seem proper. Thus in Granger v. Craig, 85 N. Y. 619, where the judgment was for the foreclosure of a mortgage and the defendant upon appeal desiring a stay, not allowed by the provisions of the Code, applied to this court for an order; it was held . that the granting of the order was within the power of the court to be exercised in its discretion.

Also in Genet v. D. & H. C. Co., 113 N. Y. 472, the action was in the Superior Court of the city of Hew York, the judgment awarding an injunction to the plaintiff prohibiting the defendant from using its structures on the plaintiff’s lands in the way it had been accustomed to use them for several years. Although the defendant appealed, such appeal did not relieve the defendant from the duty of obeying the judgment. The Special Term of that court granted an order relieving the defendant from the-duty of immediate obedience pending the appeal; and this was held to be within the power of that court.

The case of Carter v. Hodge, 150 N. Y. 532, was in the Superior Court of Buffalo and is to like effect.

I am also of the opinion that the provision for further suspension contained in the judgment herein does not preclude this court from the exercise of its discretion on this application. But even if this were so, the language of the judgment does not limit the court to a single order. The objects for the accomplishment of which reasonable time was granted to the defendant could not, by the very nature of the case, be determined by the trial court, and can only be determined by the Special Term as the results of the defendant’s efforts toward their accomplishment are manifested. The judgment contains no direction as to the manner in which the Special Term shall make its determination. It is left to the discretion of the court to decide in view of the necessities of the case as they arise what shall constitute reasonable time. The Special Term by its former order did not so determine. It simply extended the suspension for one year, but did not adjudge that a year was a reasonable time within which the defendant should accomplish the objects mentioned in the judgment.

That such is a fair interpretation of the meaning of the judgment finds support in the evident purpose of the Trial Term in maldng the provision in question. The action being in equity, the court by the terms of its judgment sought to accomplish equity for the plaintiff, and, in so- doing, to avoid making its judgment the instrumentality of a greater injustice than the one which it was intended to correct. The sewers established and maintained by the defendant city have long been in existence and constitute a matter of vital importance to the health of a large community. To have commanded the immediate cessation of their use would have endangered the welfare and health, not only of the particular city involved, but of the entire commonwealth. Such a menace, measured against the injury resulting to the plaintiff’s farm by a temporary continuance of the use of the sewers, reveals the purpose of the court beyond peradventure. It cannot, therefore, be supposed that the trial court intended to compel the Special Term to decide so important a matter until, from the development of the defendant’s efforts to comply with the requirements of the judgment, the court should have sufficient facts before it for a proper and equitable determination.

Let an order be submitted suspending the operation of the injunctive provisions contained in the judgment for one year from January 29, 1904, upon the compliance by the defendant with the following terms and provisions, viz.: The defendant to pay to the plaintiff’s attorney, within ten days after the entry of this .order, the sum of fourteen dollars as damages accruing to the plaintiff during the period of such suspension, and the further sum of ten dollars costs of this motion.

Let similar orders be submitted in the other eighteen applications, leaving blank spaces for the amount of annual damages, which I will adjust upon signing orders.

Ordered accordingly.  