Erie Railroad v. Rochester, Corning, Elmira Traction Co. , 57 Misc. 180 ( 1907 )

Coman, J.

I have had no difficulty in reaching the conclusion that the plaintiff’s appeal to the Court of Appeals from the order of the Appellate Division operated as a stay of all proceedings under that order. It is true that the authorities upon this question are in a state of some confusion, but it seems to me that the language of the statute itself is too plain and explicit to justify an extended discussion. Section 1310 of the Code of Civil Procedure provides: “ Where an appeal to the general term of any court or to the appellate division of the supreme court Or to the court of appeals or otherwise has been heretofore or shall hereafter be perfected, as prescribed in this chapter, and the other acts, if any, required to be done, to stay the execution of the judgment or order appealed from, have been done, the appeal stays all proceedings to enforce the judgment or order appealed from.”

A careful examination of the Code fails to disclose that any other act is required to be done in order to perfect the appeal or stay the execution of the order appealed from in this case, or of any similar order, .except the service and filing of a notice of appeal and the giving of the undertaking-required by section 1326. Sections 1327 to 1331 provide for the giving of additional undertakings in certain cases but none of these sections has any application to an order of this character. To hold that the giving of the undertaking provided for by section 1326 did not operate to stay proceedings under the order appealed from would be to render utterly meaningless the language above quoted from section 1310. As is stated in a standard text book on procedure: “ Where a statute providing for appeals generally requires a general bond, and in specific instances certain designate^ bonds are required, and a general provision is made giving to the operation of an appeal, upon compliance with the provisions of the various sections of the statute, the effect of a supersedeas, an appeal in a case which does not come within the specific instances in which peculiar bonds are required,” operates as a supersedeas under the bond required for appeals generally.”

But, in order to entitle itself to the injunctive relief asked for in this action, it seems to me that the plaintiff is bound to allege and establish something beyond the mere illegality of the certificate of convenience and necessity. The mere issuance and delivery to the defendant of this certificate cannot operate harmfully upon the plaintiff. It must be alleged and shown that, pursuant to that certificate, the defendant is about to do something, or is threatening to do something, harmful to the plaintiff and injurious to its interests. Upon this point the complaint is wholly barren of allegations or suggestions; there is no allegation that defendant is threatening to nr about to construct a railroad; there is no allegation that any line to be constructed will compete with the plaintiff or in any way injure or interfere with its business. It is suggested that some inference favorable to the plaintiff upon this point is to be drawn from the fact that it had an interest and a standing in the proceeding before the State Board an'd its review by the court; but I fail to see that any such significance is to be given to that fact. Certainly, it cannot be said that an allegation to the effect that, in a former proceeding, a party has litigated the issuance of a certificate can be regarded as a substitute for an allegation that a party will be irreparably injured by threatened proceedings under that certificate. It seems to me, therefore, that while the complaint may be construed as charging a technical or inconsequential wrong against the plaintiff, there is an entire failure to allege such an actual and substantial wrong or apprehended injury as has always been held necessary to entitle a party to the equitable relief asked for in this action. The demurrer must, therefore, be sustained and the complaint dismissed, with costs.

Demurrer sustained and complaint dismissed, with costs.