Upon a former appeal from a judgment entered in this action, Charles Brenneman and Elizabeth Brenneman, liis wife, were directed by this court to execute and deliver to the appellants a good and sufficient conveyance, in fee, with covenants against their own acts, of an interest in certain, premises described in the complaint, within a given time after service upon them, or their attorneys, of a notice of the entry, of judgment. (47 App. Div.. 63.) Judgment was entered and notice given, and the appellants, desiring to appeal to the Court of Appeals from so much of the judgment as directed "the giving of the deed of conveyance, applied to the Special Term for a stay pending the appeal. The motion was granted on condition that an additional bond in the sum of $8,000 be given, and from such order this appeal is taken.
It cannot be seriously questioned but that the court had the power to grant the stay pending, an appeal to the Court of Appeals." The court always has power, in the interest of justice, to control its judgments, or to suspend the operation of them during proceedings taken to review their validity. (Genet v. President,, etc., D. & H. C. Co., 113 N. Y. 475.) Here it would seem as if the' discretion were properly exercised.. The appeal and the determination of it would serve little or no purpose if Brenneman and wife were compelled, in advance of the appeal, to do the act which substantially satisfies the judgment. We are of the opinion, however, that the order is too broad. It grants an unlimited stay to the enforcement of the judgment. No provision is contained in it for the termina*448tian of the stay if an appeal be not taken, or if the judgment on appeal be affirmed. We are also of the opinion that provision should be made which, would protect the respondents in case the judgment should be affirmed, and the appellants or either of them, -should die pending the appeal.
The order should, therefore, be modified by inserting therein a provision to the effect that if the Brennemans appeal from the judgment within the- time provided by law in which an appeal may be taken, the judgment and all proceedings thereunder be stayed pending such appeal and until the same be finally determined, on -condition, however, that Charles Brenneman and Elizabeth Bre'nneman, his wife, in addition to giving the bond named, execute a deed of conveyance as directed in our former decision and deliver the same to the clerk of the court, to be by him held pending such appeal, with directions in case the judgment appealed from be affirmed, that he then deliver the same- to the respondents on the appeal, or their attorneys; and that if the judgment appealed from be reversed, that then such conveyance be returned to the appellants, or their attorneys; and as so modified that the order appealed from- be affirmed, without costs to either party.
Patterson, Ingraham and Hatch, JJ., concurred.
Order modified as directed in opinion and as modified affirmed, without costs to either party.