Bergen Beach Land Corp. v. City of New York

192 A.D. 884

Opinion

Order affirmed, with ten dollars costs and disbursements. We have frequently suggested that this court should not interfere with the exercise of the discretion of the trial court in granting or refusing an injunction, but that the case should be tried on its merits so that findings of fact and conclusions of law might be formulated before the rights of the parties are passed upon, especially in a case where refusing an injunction may result in the denial of all redress to the plaintiff. We think the present case is such a one. There is in the complaint a claim that the doctrine of estoppel can be invoked against the right of the city to change the bulkhead line as established by the agreement, and this proposition is not without authority which tends, in dicta at least, to support it. (Williams v. Mayor, etc., 105 N. Y. 419; Monongahela Navigation Co. v. United States, 148 U. S. 312, analyzed in Lewis Blue Point Oyster Co. v. Briggs, 229 id. 82, and Greenleaf Lumber Co. v. Garrison, 237 id. 251.) Without passing upon this question we think that all the facts involved in this controversy, including the facts upon which the claim for estoppel rests, should be established in the findings of fact of the trial court before a final disposition is- made of plaintiff’s rights. Jenks, P. J., Mills, Blaekmar, Kelly and Jaxcox, JJ., concur.