
    (15 App. Div. 336.)
    ENO v. NEW YORK EL. R. CO. et al.
    (Supreme Court, Appellate Division, First Department.
    March 5, 1897.)
    1. Appeal to Court op Appeals—Stay of Proceedings—Practice.
    Application for a stay of proceedings pending an appeal from the appellate division to the court of appeals should be made to the appellate division rather than to the special term.
    2. Same—Security on Appf,al.
    The undertaking required on allowing a stay of proceedings pending appeal to the court of appeals from an affirmance of a judgment against an elevated railroad for past and fee damage to an abutter, should provide for the payment of the fee damages as well as the past damages and costs.
    Appeal from special term, New York county.
    Action by Amos R Eno against the New York Elevated Railroad Company and the Manhattan Railway Company, in which there was a judgment for plaintiff, which was affirmed on appeal. 41 N. Y. Supp. 1114. From an order denying defendants’ motion for a stay of proceedings pending appeal to the court of appeals, they appeal. Reversed.
    
      Argued before VAN BRUNT, P. J., and WILLIAMS, PATTERSON, O’BRIEN, and INGRAHAM, JJ.
    E. O. James, for appellants.
    William Mitchell, for respondent.
   WILLIAMS, J.

The judgment rendered by the trial court was affirmed on appeal by the appellate division. That judgment, in brief, adjudged that the railroad structures in front of the plaintiff’s premises had been and were unlawfully maintained; that plaintiff recover for past damages $8,412.97, with costs, $285.46,— in all, $8,698.43; and the judgment also enjoined the further maintenance of the structures in front of plaintiff’s premises, unless the defendant paid fee damages, $10,000, with interest from March 18, 1896, the day of the trial, and, in case such payment should be made, plaintiff should give a release. The defendants have appealed to the court of appeals, and have given an undertaking, which, under section 1327, Code Civ. Proc., is sufficient to perfect their appeal. There is no provision of the statute, however, as to the security that may be given to stay proceedings upon such a judgment pending such appeal. Genet v. Canal Co., 113 N. Y. 475, 21 N. E. 390. There is power, nevertheless, in the court of original jurisdiction, to stay the operation of the judgment pending the appeal. Id. A motion is the proper remedy, and it seems the motion is regularly made at special term, though the appellate division, on appeal from the order made at special term, may review such order, and exercise its discretion as to the propriety of a stay. Id. While we are not prepared to hold that such a motion may not properly be made at special term, yet we think the better practice is to make the motion in the appellate division, whose immediate decision is the subject of review in the court of appeals. The appellate division will in all cases be fully apprised of the questions involved, and will be able to pass more intelligently upon the question of a stay than the special term, which will ordinarily have no knowledge whatever of the case. Moreover, if the motion is made in the first instance in the appellate division, an appeal to the appellate division from the order made at special term will in all cases be avoided.

In the present case we think there are questions involved which the defendants should have the right to present to the court of appeals before they are required to comply with the judgment from which the appeal is taken, and we think a stay should be granted, provided the plaintiff is made entirely secure in the meantime. We suppose the defendants in the end will expect to pay the amounts finally adjudged for past damage and fee damage. The undertaking already given is insufficient as the basis of such stay. We think, in addition to that given under section 1327, the security should be for the payment of both past damages and fee damages, with interest.

The order appealed from should be reversed, and the motion granted, upon condition that adequate security be given. The form and extent of security to be settled on the settlement of the decision herein. No costs of appeal or of the motion should be allowed. All concur.  