30 N.Y.S. 893 | N.Y. Sup. Ct. | 1894
The main purpose of the action is to restrain the defendant from constructing a railroad in Elm street, in front of plaintiff’s premises, in the city of Rochester. In the outset of the action a temporary injunction was obtained. This was pursu
An order to stay proceedings upon a judgment appealed from may be made by a judge out of court, and such stay may be operative during the pendency of the appeal. Code Civ. Proc. § 775; Hull v. Hart, 27 Hun, 21. The judgment being in this court, no reason appears why the order may not have been granted by the judge who made it, although an appeal had been taken to the court of appeals. Jadson v. Gray, 17 How. Pr. 289.
The other proposition is founded upon the stipulation of the parties, made before the trial, by which it was stipulated that the temporary injunction should be vacated; that the issues be referred to a referee named; that, if the issues be finally deteimined in favor of the plaintiff, the defendant should, within 30 days from-such final determination, institute condemnation proceedings; and that the defendant should give bond conditioned that it would so institute such proceedings, and pay the amount of damages-awarded in them. The reference was perfected, the bond given, and the trial had, as before mentioned. The view urged on the part of the plaintiff is that the issues were finally determined, within the meaning of the stipulation, when judgment was entered upon the report of the referee, and therefore the defendant was required to acquiesce in that judgment, and proceed to exercise the right of eminent domain. If that had been the mutual understanding or purpose of the parties, it could have been so expressed as to limit the determination to that which the referee should direct. It is a final judgment, as distinguished from an interlocutory one; and, until the appeal was taken, it was a final determination, and, if affirmed, it will remain such. But, when appeal is taken from a judgment, the issues are not deemed finally determined until a result of the review is reached. The controversy of the parties arising upon the issues continues on the review, and the determination of it finally by adjudication is that of the issues. It would seem to follow that the úse of the word “issues” does not give to the stipulation the restricted meaning sought to be applied to it, and that the substantial import of it would have been no different if the word “action” in place of “issues” had been used. The intent of the parties in making the stipulation must be treated as that which its terms import. The order staying proceedings may be so dealt with by the court that it shall not become oppressive