19 N.Y.S. 583 | N.Y. Sup. Ct. | 1892
The order made staying proceedings on the appeal from? the judgment herein was within the discretion of the judge to whom the application was made, and we see no reason for disturbing that order, so far as the stay is concerned. But the conditions imposed we regard as onerous in the extreme. There was nothing presented as reliable proof which justified fixing the amount of the undertaking to be given at $15,000 or establishing that amount as liquidated damages. The plaintiffs did not, nor did either of them, make affidavit as to the expenses they had incurred, or the amount of damage they had suffered, or probably would sustain, by reason of the acts of the defendants enjoined by the decree appealed from. All that appears is a statement in the affidavit of the plaintiffs’ attorney “that the said plaintiffs have informed your deponent that expenses of this litigation have, independent of the suffering and annoyance caused by the acts of the defendants, amounted to the sum of five thousand dollars.” Why neither of the plaintiffs have deposed as to this statement does not appear, and we have held, time and time again, that such a statement as this, made by an attorney, where the party himself can make the affidavit, will not be regarded by the court.
