Akrill v. Selden

1 Barb. 316

• Court: New York Supreme Court
• Decided: November 29, 1847
• Status: Published

Opinion

Edwards, J.

The complainant alleges that he was not in possession of the works mentioned in his agreement, at the time of filing his bill; but that, on the contrary, the defendants were in possession, claiming title, and alleging that the complainant had forfeited his right to the use of the works, by reason of a breach of his agreement. The question then is, not whether this court will, by the process of injunction, restrain an interference with the complainant’s possession; hut whether it will grant'an injunction, the indirect effect of which will be to reinstate him in his possession. It is well settled, in this state, that a court of equity will not interfere to restrain a mere trespass, when the injury is not irreparable, and destructive of the plaintiff’s estate, but is susceptible of pecuniary compensation. (Stevens v. Beekman, 1 John. Ch. 318. Jerome v. Ross, 7 Id. 315. Hart v. Mayor, &c. of Albany, 3 Paige, 213; 9 Wend. 571, S. C.)

Unless the injury will be irreparable, the court will leave the party to his remedy at law. There is the same reason why this court should not interfere by restoring the party to possession ; that is, that he has an adequate remedy at law. But if this court should think it expedient to interfere, on the ground that there is not a sufficient legal remedy, it ought to do so by a direct decree to that effect, and not by an injunction issued at a preliminary stage of the cause, the indirect effect of which would be to compel the defendants to give up the possession to the complainant. The case of Lane v. Newdigate, (10 Ves. 192,) has not received the sanction of the court of chancery in England in its subsequent adjudications. But on the contrary, that court has declined to exercise its power through the medium of an injunction, to compel a party to do an act, by restraining him, or as was done by Lord Eldon, in the case of Lane v. Newdigate, by making it “ difficult ” for him to do the contrary. (Blakeman v. The Glamorganshire Canal Navigation, 1 Mylne & Keene, 158. Decre v. Guest, 1 Mylne Craig, 516.) The rule laid down in these cases is the only safe one upon which a court of equity can act,

The next question is, whether there is sufficient ground for making an order to show cause why an attachment should not issue for the alleged breach of the preliminary order. It does not appear that the parties have done any thing to change the situation in which they were at the tune of the making of the order. It was not intended by me to make an order which should have the effect of restoring the complainant to possession, but I meant merely to compel the parties to remain in statu quo, till the decision upon the motion for an injunction. The motion for an order to show cause, and also the motion for an injunction, must be denied. Costs to abide the event.