Genet v. Delaware & H. Canal Co.

• Decision Date: 23 April 1889
• Citation: 113 N.Y. 472,21 N.E. 390
• Parties: GENET v. DELAWARE & H. CANAL CO.
• Court: New York Court of Appeals Court of Appeals

113 N.Y. 472

21 N.E. 390

GENET

v.DELAWARE & H. CANAL CO.¹

Court of Appeals of New York.

April 23, 1889.

Appeal from superior court of New York city, general term.

Action by Augusta G. Genet against the president, managers, and company of the Delaware & Hudson Canal Company. Defendant appeals.

INJUNCTION-SUSPENSION PENDING APPEAL.

By Code Civil Proc. N. Y. s 267, the superior court of New York city is given powers in actions within its jurisdiction co-extensive with those of the supreme court in like cases. By section 217 the supreme court is given the powers and jurisdiction, in law and equity, formerly possessed by the supreme court of the colony of New York and the court of chancery in England prior to 1776, subject to statutory and constitutional limitations. Held, that the special term of the superior court has power, pending an appeal from its judgment enjoining defendant from doing certain acts, to suspend the operation of the judgment during the appeal, upon defendant's giving security for the damages which may result.

Frank E. Smith, for appellant.

George C. Genet, for respondent.

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, (4 N. Y. Supp. 880.) 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 brought,) 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. Id. 633. 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 Civil Proc. § 267. The supreme court possesses the powers and jurisdiction, in law and equity, formerly possessed and exercised by the supreme court of the colony of New York and the court of chancery in England prior to July 4, 1776, subject to the limitations created and imposed by the constitution and laws of this state. Code Civil Proc. § 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 Law T. (N. S.) 233; Mayor...