Howard v. Park

59 How. Pr. 344

Opinion

Per Curiam. —

The case is within the principle of Musgrave agt. Sherwood (76 N. Y., 194). Prior to the time when the reference to assess damages was granted, the appeal from the judgment had been duly perfected, consequently, under the decision cited, the motion for such reference should have been dismissed. The order should be reversed, with ten dollars costs and disbursements of the appeal, and the motion for a reference to assess damages upon the injunction dismissed without costs, and without prejudice to a renewal upon the final decision of the case upon appeal.