Beck v. New York & Stamford Railway Co.

74 A.D. 626, 77 N.Y.S. 357

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 15, 1902
• Status: Published

Opinion

Per Curiam:

The order appealed from is of a two-fold character. In the first place it directs the defendant to remove certain rails, ties, crossties, poles and wires from the real property of the plaintiff, and forthwith to restore the surface of said real property to the condition in which it was before the defendant entered thereon. In the second ' place, it restrains the defendant pending the trial of the action from using or in any manner operating the second or additional track whicn it has laid upon Beck avenue in the town of Rye. So fat* as the latter or strictly injunctive portion of the order is concerned, we think it should be affirmed, inasmuch as we are inclined to think that the franchise and consent obtained by the defendant contemplate the construction of a single-track railroad only. As to the first part of the order, however, which is of a purely mandatory character, we think the determination of the plaintiff's right to such relief should await the trial and the determination of the action. It seems hardly proper at this time to grant a measure of relief as to this branch of the case which is as broad as the plaintiff could possibly have if she fully prevails upon the trial. The order appealed from should be modified by striking therefrom the mandatory portion to which we have referred, and as thus modified, it should be affirmed, without costs of this appeal to either party, All concurred.