
    GENET, App’lt, v. DELAWARE AND H. CANAL CO., Resp’t.
    Appeal from an order made at special term • on the motion of defendant, suspending the operation of the judgment heretofore entered in this action, so far as the same contains an injunction against the defendant, pending an appeal therefrom by the defendant to the court of appeals. This same order was before this court at the December, 1888, term, and an order was then made by this court, reversing the special term order, so far as it suspended the operation of the judgment or relieved the defendant from the duty of immediate obedience to the injunction contained in it, on the ground that the court had no power to make the same. See 21 N. Y. State Rep., 455; From the last-mentioned order defendant appealed to the court of appeals, where it was reversed, and the cause remitted to the general term for the exercise of its discretion. 23 N. Y. State Rep., 111.
    
      George 0. Genet, for app’lt; Eranh E. Smith, for resp’t.
   Sedgwick, J.

In consideration of what appears to me to he the novelty Df the matters that will be mooted on the appeal, the discretion of the court should allow the operation of the judgment to be suspended during the appeal on the conditions prescribed by judge Dugro in the order appealed from, with two modifications. The first is that, in case of want of diligence to prosecute the appeal, the plaintiff may move in this court at special term, that the suspension be discontinued; and the second is that the defendant should stipulate that, if plaintiff brings an action upon the bond, the issues in the action shall be heard and determined by a referee, to be appointed by the coiirt, and that, as to the defendant, but not the plaintiff, the judgment duly entered upon the decision of the referee shall be final and not appealed from. The ground of the last condition is that it should not be made a possibiiity that, after the rights of the plaintiff shall he perchance finally declared, there may be indefinite postponement of the enjoyment of those rights.  