
    Alexander Potter and William Tuteur, Respondents, v. Clinton L. Rossiter and Others, Defendants, Impleaded with Toluca Electric Light and Power Company, Appellant.
    (No. 1.)
    First Department,
    November, 1905.
    Contempt — when. failure to comply with interlocutory judgment does not bring defendant into contempt— appeal from final judgment, right to review interlocutory judgment thereon.
    A defendant who, by an interlocutory judgment, has been ordered to transfer and deliver to plaintiffs certain stock and'bonds, which, by stipulation of parties, have been-.deposited with a trust company to be held subject to the order of the court, and 'who intends to appeal from the final judgment thereon, should not be adjudged to be in contempt of court for failing so to deliver the stock. The defendant has a right to review the interlocutory judgment on an appeal from the final judgment.
    Such order adjudging defendant to be in contempt should be reversed on the condition that defendant cause said stock to be transferred to the names of the plaintiffs on the books so that they may vote thereon.
    Ingraham, J., dissented; the order should be reversed on the ground,that the interlocutory .judgment sho.uld not. be enforced until the entry of final judgment.
    Appeal by the defendant, the Toluca Electric, Light and Power Company, from ,an order of the Supreme Court, made at the New . York Special Term and entered in the office of the clerk of the county of Bew York on the 26th day of August,. 1905, adjudging the said defendant, its officers and agents in contempt of court.
    
      William W. Goodrich,. for the appellant:
    
      J. Aspinwall Hodge, for the respondents.
   Laughlin, J.:

This appeal is from an order adjudging the defendant company guilty of contempt of court in failing to transfer and deliver to the plaintiff the stock and bonds required to be delivered to them “ forthwith ” by virtue of the interlocutory judgment herein which is construed in the opinion on the appeal by the defendant Rossiter from an order adjudging him guilty of contempt, argued and decided herewith (109 App. Div. 35).

Pursuant to a stipulation made by the attorneys for the respective parties the stock and bonds were deposited with the Colonial Trust Company as trustee, to be held by said trust company subject to the order of this court during the pendency of this action, and subject to the order of the court until the court shall otherwise direct by final judgment herein or by interlocutory or other order.” After the entry and service of the interlocutory judgment the defendants served a notice of appeal therefrom to the Appellate Division. Pending that appeal they made a motion at Special Term for a stay of proceedings under the. interlocutory judgment. The motion was granted upon condition that within five days from the entry of the order the defendants give security for the amount then due the plaintiffs from Rossiter under the interlocutory judgment and upon the further condition that the stock be transferred to the names of the plaintiffs upon the books of the company or that some other provision be made by which the stock can be voted as the plaintiffs direct pending the appeal. The defendants subsequently withdrew their appeal. Thereafter and before the motion to punish the appellant for contempt was made its attorney addressed a letter to the attorney for the plaintiff stating, in substance, that in view of the plaintiff’s desire that some parts of the interlocutory judgment should be complied with prior to a hearing upon the merits of an appeal from the final judgment, that the defendants were willing to consent to the terms previously fixed by the court as a condition of granting the stay'on the appeal from the interlocutory judgment and to give a bond conditioned for the payment of the amount then due from the defendant Rossiter to the plaintiffs by the interlocutory judgment in case of an affirmance and to immediately transfer the stock to the names of the plaintiffs .Upon the books of the defendant company, the stock to be returned to the custody of the company and held subject to-the final judgment in the action after the appeal. Those terms were declined. The motion to punish the company for contempt was then; made and granted. ' ■ .

We are of opinión that the court should have denied the motion to punish the appellant for contempt upon the condition previously prescribed by the court upon the motion for a stay of proceedings pending the appeal from the interlocutory judgment. The stock and bonds were bn deposit with the trust company,, and there is. no suggestion that it is not a safé custodian. If 'the- stock is transferred to. the names of the'plaintiffs upon the books of the company so that they may vote the'reon their rights would be sufficiently secured and protected until the final determination of the action. It appears that.the defendants intend in good faith to appeal from the final judgment. They should not be prejudiced by a failure to appeal from the interlocutory judgment or by the with: drawal of their appeal therefrom. They could not prosecute that appeal as matter of right beyond this court. They have the right' to review the interlocutory judgment on an appeal from the final judgment both in this court and in the Court of Appeals. The interest of all '.parties will be best subserved by retaining' the -stock and bonds where they now are in the custody of the court until the final determination of the action.

It follows that the order should be reversed, with ten dollars costs and disbursements, and motion denied upon condition that within ten days after the 'entry and service of order with-notice.of entry the defendants cause the stock to be transferred to the names of the plaintiffs upon the appropriate books.

O’Brien, P. J., Patterson and McLaughlin, JJ., concurred.

Ingraham,. J. (dissenting):

I dissent. I think the order should be reversed and the motion denied, on the ground that the interlocutory judgment - should not be enforced until the entry of final judgment.

Order reversed, with ten dollars costs and disbursements, and motion denied upon the conditions stated in opinion.  