
    (21 Misc. Rep. 172.)
    POCANTICO WATERWORKS CO. v. LOW et al.
    (Supreme Court, Special Term, New York County.
    August, 1897.)
    Stay Pending Appeal.
    A court can make no order restraining the foreclosure of a mortgage in another''proceeding "pending an appeal from an order dismissing a complaint to téstrain such foreclosure.
    Action -by the Pocantico Waterworks Company 'against Joseph M. Low and others to restrain defendant the Farmers’ Loan & Trust Company from foreclosing a mortgage. The complaint was dismissed (46 N. Y. Supp. 633), and plaintiff moves for a stay of proceedings pending appeal. Denied.
    F. Bien, for plaintiff.
    Turner, McClure & Bolston, for defendant Farmers’ Loan & Trust Co.
   RUSSELL, J.

The plaintiff moves for a stay, pending an appeal from a judgment herein, “of all proceedings, so as to prevent the foreclosure of the mortgage held by the defendant Farmers’ Loan & Trust Company.” That judgment follows a decision of the special term dismissing the complaint in this action, which sought to restrain the Farmers’ Loan & Trust Company from foreclosing a mortgage for $300,000, and awarded costs against the plaintiff. The stay of the judgment would amount, in law, to nothing more per se than the stay of the collection of the costs included in the judgment. As to that sum the plaintiff can readily give an undertaking to prevent the collection pending the appeal. If, however, by the motion for a stay, and the general request for relief usually made in notices of motion, the plaintiff desires this court to make some order to prevent the Farmers’ Loan & Trust Company from foreclosing the mortgage while the appeal from the judgment in this action is pending, the plaintiff asks that which the court cannot give. The dismissal of the complaint has no operative force except as res adjudicata, and I know of no practice by which that effect may be held in suspense by an order made upon motion, no provision therefor being included in the original judgment. Nor do I think there is authority for granting an injunction pending appeal which is denied by the judgment entered upon a trial. Any preliminary injunction granted during the pendency of the action is dissolved by final judgment dismissing the complaint, and no provision of law exists for reviving it after trial and judgment, until that judgment is set aside. The interlocutory injunction is provisional in its character, and the provisions of the final judgment take its place. Jackson v. Bunnell, 113 N. Y. 216, 21 N. E. 79; Spears v. Mathews, 66 N. Y. 127. If this application were made in an action of foreclosure brought by the Farmers’ Loan & Trust Company, the general power of the court to stay proceedings in an action might be invoked; but a request in one action to stay proceedings in another action is in the nature of an injunction, which cannot be granted when final judgment denies the right to any injunction whatever. Motion clenied.  