Pach v. Geoffroy

Patterson, J.

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. *584 It is perfunctory swearing, and must be discouraged. There was nothing before the court to justify the requirement of an undertaking in so large an amount, nor is it proper to require on such a motion that the undertaking shall be for liquidated damages. This order should be modified. The stay of proceedings will be maintained for the present, but the appellants must, within 10 days, apply anew to the special term to fix the amount of an undertaking to be given as a condition of continuing the stay until the decision of the appeal from the decree, and on that application, whatever is to be presented on either side for the consideration of the court must be by affidavits of persons competent to make them. The undertaking must be filed within a time to be fixed by the special term, and be conditioned that the defendants will pay to the plaintiffs such damage as may be sustained by the plaintiffs by reason of the defendants continuing, during the pendency of the appeal, the acts enjoined by the decree, lío costs of this appeal to either party. All concur.