
    Augusta G. Genet, Resp’t, v. The President, etc., of the D. and H. Canal Co., App’lts.
    
    
      (Court of Appeals,
    
    
      Filed April 23, 1889.)
    
    1. New York superior court—Powers of—Code Civ. Pro., § 267.
    The powers of the superior court of the city of New York, in actions of which it has jurisdiction, are co-extensive with those of the supreme court in like cases.
    3. New York supreme court—Jurisdiction—Code Crv. Pro.. § 217
    The supreme court possesses the powers and jurisdiction formerly exercised by the supreme court of the colony of New York, and the court of chancery in England, prior to Juljr 4, 1876, subject to the limitations created and imposed by the constitution and laws of this state.
    3. Courts—Of original jurisdiction—Power to suspend operation of JUDGMENI PENDING APPEAL.
    The power of a court of original jurisdiction to suspend the operation of a judgment pending an appeal, especially where, by so doing, the parties are left in the position in which they were when the action was brought, is a power inherent in the jurisdiction, and its exercise, although discretionary, is in many cases important in a wise administration of justice.
    4. Same—When special term no power to modify judgment.
    Where, on application to the special term of the superior court of the city of New York, an order was made suspending the operation of a judg ment recovered in that court pending an appeal, Held, that the court had' no power to reverse, modify or vary the judgment for error in any point of substance.
    5. Judgment — When appeal does not believe against judgment — Code Civ. Pro., § 1337, et seq
    
    Where the judgment operates of its own force and without further process, and as a prohibition against doing the act enjoined, the appeal itself does not relieve the defendant from this duty to obey the judgment
    6. Same—When order does not relieve against judgment
    Nor would a mere order staying proceedings, by the plaintiff, enable-the defendant to prosecute a particular business, in violation of a judg ment enjoining its continuance
    
      Frank E. Smith, for app’lts; George C. Genet for resp’t
    
      
       Reversing 21 N. Y. State Rep , 455.
    
   Andrews, J.

The judgment in the action, as modified by the general term, restrained the defendant from using the-shaft, breaker and structures erected on the plaintiff’s lands, in mining coal from lands of the defendant, contiguous to-the lands of the plaintiff, except under certain limitations, specified, and from depositing on the surface of the plaintiff’s land, culm, from the coal mined from other lands than those of the plaintiff. The judgment of the general term, affirming the original judgment as modified was rendered May 10. 1888 The defendant thereupon appealed from the judgment of affirmance to this court. Subsequently, and on the 25th day of May, 1888, on application made in behalf of the defendant to the special term of the superior court of the-city of New York (the court in which the action was broughtV an order was made suspending the operation of the judgment during the pendency of the appeal to this court, on. condition, among other things, of the execution by the defendant, of a bond in the penalty of $25,000, to pay all damages which the plaintiff might sustain by reason of the defendant continuing to do, pending such appeal, the acts, or any of them, prohibited by the judgment, or by omitting to do any of the acts thereby commanded.

The general term on appeal, reversed the order, on the ground that the court had no power to suspend the operation of the judgment, or to relieve the defendant from the duty of immediate obedience, pending the appeal. This appeal is taken from the order of reversal, and the sole question is whether the special term had power to make the order in question. The powers of the superior court in actions of which it has jurisdiction, are co-extensive with those of the supreme court in like cases. Code of Civil Procedure, section 267 The supreme court possesses the powers and jurisdiction in law and equity formerly possessed and exercised by the supieme court of the colony of New York, and the court of chancery in England, prior to July 4, 1876, subject to the limitations created and imposed by the constitution, and laws of this state. Code of Civil Procedure, section 217. The English court of chancery has frequently exercised the power of suspending the execution of its decree, especially in cases of injunctions pending an appeal. It is a power inherent in the jurisdiction, and its exercise, although discretionary, may, in many cases, be important in a wise administration of justice, as where there may be doubt as. to the correctness of the decision, and great mischief might result to the appellant from the execution of the decree pending the appeal, in case the decision should be reversed. Walford v. Walford, 19 L. T. (X. S.), 233; The Mayor v. Wood, 3 Hare, 131, 151; Scholey v. Central R. R. of Venezuela, 14 Week. Rep., 786: Roskell v. Whitworth, 18 id., 682;: Flower v. Lloyd, 36 L. T. (N. S.), 444; Daniel’s Chy. Prac. (4th ed.), 408.

The judgment in this case prohibits the defendant from using its structures on the plaintiff’s lands, in the way in which it had been accustomed to use them for several years, and from depositing culm on the surface. It adjudges the right as claimed by the plaintiff, and denies the adverse claim of the defendant. The judgment operates of its own force and without further process, as a prohibition against doing the act enjoined. The appeal does not of itself relieve the defendant from this duty to obey the judgment. The statute does not prescribe any method by which the execution of a judgment can be stayed in a case like this. Code Civ. Pro., § 1327, et seq. Nor would a, mere order staying proceedings by the plaintiff enable the-defendant to prosecute its business in violation of the judgment. Sixth Avenue R. R. Co. v. Gilbert Elevated R. R. Co., 71 N. Y., 430. The general practice permits courts to control their judgments in the interest of justice; and unless some statutory rule prescribes the method of procedure, or there is some statutory prohibition, I do not perceive how it can be said that there is no power in the court, of original jurisdiction to suspend the operation ,o£ a. judgment pending an appeal, and especially where, by so-doing, the parties would be left in the position in which they were when the action was brought. It will be observed that we are considering the mere question of absolute power, and not whether in a particular case it ought to be exercised, or under what conditions or limitations. If the effect of the order of the special term was to reverse, modify, or vary the judgment for error in any point of substance, it would be clearly beyond its jurisdiction. The order does not assume the existence of any such power. It merely suspends the operation of the judgment until the appellate court shall pass upon the law. While it may be said that the order, in some sense, interfered with the judg ment by postponing its enforcement, we think this was within the competency oí the special term in the exercise of its equitable jurisdiction. The incidental operation of the order in this way does not, we think, work any modification in the judgment, in the sense which precludes the jurisdiction exercised by the special term. See Granger v. Craig, 85 N. Y., 619. There is danger in unduly restrict• ing the power of a court, as in enlarging it by judicial construction. It is quite possible that the general term, if it had reviewed the discretion of the special term, might have reversed the order on the ground that it was improperly exercised. But upon point of power, we think the conclusion of the general term was erroneous.

The order of the general term must, therefore, be reversed, but the case should be remitted to the general term for the exercise of its discretion.

All concur, except Ruger, Oh. J., and Danforth, J , not voting. _._  