37 How. Pr. 147 | N.Y. Sup. Ct. | 1869
It is not disputed that the appeal is brought in good faith. We are not asked to deny the plaintiff’s application for a stay of proceedings on the judgment, including a revival of the injunction, on the ground that the appeal is frivolous or is brought or prosecuted without probable cause.
A dismissal of the complaint undoubtedly dissolved the injunction and the appeal does not revive it. Nor will an undertaking upon the appeal sufficient to stay proceed- . ings on the judgment operate to continue the injunction. It would merely stay proceedings to collect the defendants’ costs recovered by the judgment. The application is therefore in the nature of a new application for an injunction pending the appeal.
If the judgment had been in favor of the plaintiff requiring the county bond to be given up to her, the defendant on appeal might have stayed all proceedings under the judgment as a matter of right by complying with the provisions of sec- • tion 336 of the Code. But the complaint being dismissed the bond is left in the possession of the bank of Monroe and may be given up by it to the defendant Garcia, and by him
In this view the plaintiffs appeal might be and probably would be entirely abortive, though the court should ultimately decide in her favor; and it obviously will be quite useless for her to further prosecute it unless this court revive and continue the injunction as incident to the stay of proceedings upon the judgment pending such appeal. As it is quite clear that the Code makes no provision for such stay unless such provision is embraced in section 348, which authorizes the court or a judge to stay proceedings in-certain cases upon such terms as to security and otherwise as may be just.
But this court has the unquestionable power to revive and continue such injunction as an original power. It was said by the vice-chancellor, where the appeal was from a vice-chancellor to the chancellor, in Coster agt. Griswold (4 Edwards, 374), that “the application should be made to the chancellor who alone had control of. the appellate proceedings. ” It was in view of this suggestion, chiefly, that I directed that this application be made to the court at general term as the appellate court. But in the case of Hart agt. The Mayor of Albany, (3 Paige, 214), the suit was before the chancellor, and he dissolved the injunction upon motion after answer, on the ground that the plaintiffs had a perfect remedy at law, and were not entitled to an injunction until they had established their right at law,- and on a subsequent application he revived and continued it till an appeal taken from such decision could be heard in the court for the correction of errors (same case at p. 386), and expressed no doubt of his power to do so, notwithstanding the appeal.
The bill in this case was filed to restrain the defendants and their dock master from removing from the Albany basin an ark or floating store house, which the complainants had
But notwithstanding the complainants had this security for their indemnity in case the defendants wrongfully destroyed the store house pending the appeal, the chancellor revived and continued the injunction to enable the complainants to bring the appeal to a hearing before the destruction of such store house.
This case was decided in July, 1832. At this time it was not the practice, except in the few cases prescribed in the Revised Statutes, when the injunction stayed the trial of a personal action at law, or proceedings after verdict or judg-. rnent, to require security on the granting of an injunction. In the revision of the rules of the court of chancery, made by chancellor Walworth in 1829, provision was made by rule 31 giving power to the officer authorized to allow in-j unctions in his discretion, to require of the complainant or his agent a bond with security or his own bond only, to the party enjoined in such sum as he might deem reasonable, conditioned to pay to such party all damages he might sustain by reason of said injunction.
This rule remained so till after the revision of the rules in 1837, when it was amended as it appears in the revision of 1844, making it imperative upon the officer allowing an injunction, in every case to take such bond in a sum not less than $500.
I presume, therefore, that no security was given on the granting of the original injunction in this case of Hart agt.
This provision of rule 31 of the court of chancery has been carried into the Code, and section 22 now requires security in all cases where no other provision of law is made in respect to security in such cases. This provision I think obviates in a large degree most of the objections, doubts and hesitancy that had heretofore existed in the courts of equity on this subject. The judges have uniformly sought to favor the right of review in fair cases according to the spirit of the statute giving the right of appeal, and no reputable judge has ever sought to prevent or hinder such review by the superior court of a decision of an inferior court or judicial officer affecting important rights, by refusing to make such orders as were essential to make the right of review real and effectual in case of error in the subordinate court.
In the case of the Town of Guilford agt. Cornell, (4 Abb.) the general term in the sixth district, while they dissolved an injunction granted and sustained at special term on motion, after an appeal to the court of appeals, made an order continuing the said injunction until the decision in the court of appeals, and this without any new security upon the injunction.