
    In the Matter of the Application of the Metropolitan Elevated Railway Company, App’lt, v. Henry Siefke, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed June 26, 1891.)
    
    Eminent domain—Condemnation proceedings—Stay pending appeal.
    In condemnation proceedings brought by an elevated railway company to acquire easements of which it is already in possession, a stay of proceedings by the commissioners to appraise the value of the" easements, will not be granted, as no wrong or injury can happen to the owner by reason of the commission proceeding in the discharge of its duty up to the point of fixing the value and reporting thereon.
    Appeal from order granting a stay in proceedings to condemn for the purposes of the plaintiffs certain real property belonging to the defendant
    
      Julien T. Davies and Brainard Tolles, for app’lt; William Allen, for resp’t
   Patterson, J.

—In the disposition which we think should be made of this appeal it is not necessary to pass upon the question as to the proper stage at which to appeal from orders made in applications of this character. All that has been done thus far is the making of an order appointing commissioners after a trial had before a referee to whom it was referred to ascertain the facts and report as required by law. Whether the order appointing the commissioners may be appealed from, or whether there is jurisdiction in the court to entertain an appeal until the award has been made by the commissioners thus appointed, is a matter which it is not necessary to pass upon now; and for the reason that we think unless some controlling circumstance is presented or some emergency exists which actually requires the interposition of the court to prevent the commissioners from proceeding to ascertain the value of the easements sought to be taken, there should be no stay granted.

It appears from the record in this case that the railroad company is in possession of certain easements appurtenant to the defendant’s land and that it has instituted the proper proceeding to acquire these easements by due course of law; and all that has been done thus far is to set the machinery of the courts in motion to enable the plaintiff in such due course of law to acquire that property, as to which, now, it stands in the position of a trespasser. No wrong or injury whatever can happen to the defendant by reason of the appointment of this commission, or its proceeding in the discharge of its duty up to the point of ascertaining and fixing the value and reporting thereon. If it becomes advisable after the commissioners shall have reported, for the defendant to appeal, there will be ample time to entertain a motion for a stay of proceedings. But as the parties are situated now, the stay of proceedings merely acts to prevent the plaintiff doing that which the law authorizes it to do, and thus by the compulsion of the •court it maintains the position of a trespasser as to those easements.

We think the order should be reversed, with costs

Van Brunt, P. J., and Barrett, J., concur.  