City of New York v. Knickerbocker Trust Co.

41 Misc. 17, 83 N.Y.S. 576

Opinion

Blanchard, J.

This is an application for a temporary and mandatory injunction in an action brought to require the removal of steps, coping and area forming part of a building in course of construction at the northwest corner of Thirty-fourth street and Fifth avenue. The granting or refusal of a temporary injunction is a matter of discretion with the court. Preliminary injunctions which only prevent the defendant from doing an act which would render the final-judgment ineffectual may be granted with some readiness, but those which in effect determine the litigation and give the same relief which it is expected to obtain by the judgment should be granted with great caution and only when necessity requires. Bronk v. Riley, 50 Hun, 489-492. It is claimed by the city that the coping, steps and area encroach upon the street and avenue in violation of law. The encroachment is not denied, but defendant claims that the encroachments, if any, are a part of the “ portico;” that the authority to build the same was obtained from the city authorities by resolution of the board of aldermen; that the parts of the structure which are the subject of complaint •were indicated in the precise manner as constructed upon plans filed in 1901, in accordance with law, in the department of buildings of the city, and approved by the same. I do not think that the neglect of the proper authorities of* the municipal government, if such neglect there was, can deprive the public of their rights in a public thoroughfare, and the approval of the building department of the plans filed, if such plans were in violation of the law and tended! to deprive the people of their rights in the street would not be sufficient to legalize the encroachments sought to be removed in this action. The encroachments complained of are practically completed at the present time, and the fact that they have been completed in full compliance with plans filed with the building department and approved by it may properly be considered on this application, as affecting the-exercise of the discretion resting with the court. Furthermore, I do not consider that the fact that numerous other-violations of a similar character exist, as urged by the de fendant, affords any excuse for the present violation, if it be determined to be one; but conceding that the city is entitled to the relief sought in this action upon the trial thereof, it does not necessarily follow that it is entitled to a preliminary injunction. “ Such an injunction should not be granted * * * unless without it the court could not, by its final judgment, do justice between the parties.” Van Veghten v. Howland, 12 Abb. Pr. (N. S.) 461. And in this action there is no reason why by final judgment justice cannot be done. If the encroachments complained of are in violation of law their removal can be decreed. The defendant will complete them at its peril. As they are substantially completed at the present time and some measure of acquiescence has been given to the work now done by the city, authorities, as I have indicated, I have determined not to require either their removal or to restrain their completion at the present time. When the granting of a temporary injunction would 'work a greater hardship to the defendant than its refusal would to the plaintiff, the injunction should be refused. Gerken v. Hall, 65 App. Div. 16-18, and cases there cited. The proper exercise of the discretion resting with the court leads to the denial of this application. Motion is denied, without costs.

Motion denied, without costs.