
    The Campbell & Thayer Co., Plaintiff, v. John F. Fróst, et al., Defendants.
    (Supreme Court, Kings Special Term,
    June, 1898.)
    Stay — A judgment for costs may be stayed by an undertaking.
    ‘ Where the defendants have succeeded in defeating an action brought; to perpetually restrain them from obstructing a street and have been awarded costs, the plaintiffs are not entitled to a stay, upon their appeal, as there is nothing to stay except the judgment for costs and this may be accomplished by giving the usual undertaking on appeal.
    Action to obtain a perpetual injunction restraining the defendants from obstructing an alleged street. Judgment for the defendants denying the relief sought and for costs. Motion for a stay of the judgment pending appeal.
    A. E. Lamb, for plaintiff.
    Herbert H. Kellogg, for defendants.
   Gaynor J.

The judgment for costs may be stayed by the usual undertaking on appeal. An order for that purpose is neither necessary nor allowable. There is nothing else to stay. That is the only affirmative thing in the judgment. The rest of it is a negative, being a mere denial of the injunction prayed for by the complaint. There is nothing affirmative there to stay. What the plaintiff really wants therefore is that having rendered judgment denying an injunction the court should now make an order granting one pending appeal. This would be an inconsistent thing, and the court has not the power to do it.

The motion is denied.  