Lazarus v. Danziger

16 N.Y.S. 200, 1891 N.Y. Misc. LEXIS 382

• Court: The Superior Court of the City of New York and Buffalo
• Decided: September 12, 1891
• Status: Published

Opinion

McAdam, J.

The plaintiff is the owner in fee of the premises in front of which the soda-water stand is erected. It is within the stoop line, was erected in 1884, and has been there since. The defendant hired the adjoining property knowing the structure was there. He was satisfied then, but, since other causes have made trouble, is dissatisfied now. He is determined that the stand shall go. The defendant has no right to interfere with the structure, and will be enjoined from disturbing it except by legal proceedings. The application goes further. It seeks to enjoin the defendant from instituting proceedings to compel the public authorities to remove the structure. Injunction to prevent proceedings at law is one of the most common heads of equity jurisprudence, but no one court can enjoin a proceeding in another court of the state, having equal power to grant the relief sought, nor will the court by injunction enable a party to try in equity that which can and should most properly be tried at law. In so far as the plaintiff seeks to enjoin legal proceedings in other courts having jurisdiction, the application will be denied. The court will impose as a condition that the plaintiff, if not made a party, be notified of such other proceedings. This is all that can be done here. The other court must do the rest. Whether the plaintiff’s structure interferes with the rights of the public is a question to be determined in such other proceeding. It is but indirectly involved here. Settle order on notice. No costs.