
    The Harlem River and Portchester Railroad Company, Respondent, v. Phœbe Jane Arnow and Others, Appellants, Impleaded with Others.
    
      ■Condemnation Law — when the defendant is entitled to a stay of the assessment of damages, pending an appeal.
    
    Where an appeal in an action is taken by the defendant from a judgment which is a final determination that the property mentioned in the petition of the plaintiff, a railroad company, is L.-cessary for railroad purposes, and that issue is seriously contested, the court should restrain the plaintiff from proceeding, under ■ the judgment, with the assessment of damages, pending the appeal, especially as no injury can result to the plaintiff from a stay,, under the provisions of the ' Code, relative to the condemnation of lands, providing that the company may take possession of the land'under the judgment, by depositing in court that amount which the defendant claims is their value.
    Appeal by the defendants, Phoebe Jane Arnow and others, 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 New York on the 3d day of March, 189Y, denying the application of the defendants for an order restraining the plaintiff from proceeding under- the final judgment pending an appeal.
    
      Milton A. Fowler, for the appellants.
    
      Henry W. Taft, for the respondent
   Per Curiam :

We think the stay of proceedings applied for in this case should have been granted. The judgment was a final determination that the property mentioned in the petition of the railroad company was necessary for railroad purposes. All that remains is virtually the assessment of damages. That future proceeding may involve great expense, much" of which would not be chargeable against the railroad company if the judgment should be reversed. With the serious question involved respecting the existence of a real necessity on .the part of the railroad company to have the possession of the premises, it is not reasonable to subject the defendant to this expense until the judgment appealed from is reviewed by the appellate court. The right to appeal from the judgment as a final judgment is not to be disputed, and there is nothing in the provisions of the Code relating to the subject of condemnation of lands which interferes with , the right of the court to grant a stay. Nor can any injury result to the plaintiff by reason of such a stay. The statute provides that it may take possession of the land under the judgment by depositing in court the amount which the defendant claims to be the value of the land sought to be taken, and it can very readily acquire possession by complying with that provision of the statute.

We think that the order appealed from was wrong and should be reversed, with ten dollars costs and disbursements, and the motion granted.

Present—Van Brunt, P. J., Bumsey, Williams, Patterson and Parker, JJ.

Order reversed, with ten dollars costs and disbursements,- and the motion for stay granted.  