It is to be assumed that the stay was? granted in this case because the learned judge who made the order thought that the appeal raised questions which ought to be passe® upon by the court of last resort before the respondent should be compelled either to stop the operation of its railroad in front of the plaintiff’s premises or pay $3,500 for the depreciation in the fee value of those premises. We cannot say that he was wrong in this view; and' the correctness of his conclusion that the questions of law involve® were grave enough to warrant a stay is in no wise affected by the subsequent action of the elevated railroad company in instituting ccmrdemnation proceedings to acquire the plaintiff’s property. If it clearly-appeared that there was no merit in the appeal, and, furthermore*, that it was taken purely for delay, in order to enable the railroad company to procure, through the condemnation proceedings, a lower valuation of the plaintiff’s premises than had been fixed in the equity action, a different question would be presented. Upon the paper© before him, we think that the learned judge at special term properly exercised his discretion in refusing to vacate the stay.
Order affirmed, without costs. All concur.